C- ! (Snrnfll ICaui ^riynnl Slibtarii Cornell University Library KF 755.W66 A treatise on extrinsic evidence In aic 3 1924 018 802 276 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018802276 The Law of Wills. PART I. ON EXTKINSIC EVIDENCE, BY SIR JAMES WIGRAM, LATE TIOB OHANOEIIOB,^ PART II'. ON THE CONSTRUCTION OF WILLS, BY JOHN P. O'HARA, COUNSELLOR AT LAW. Ji. TREATISE ON Extrinsic Evidence IN AID OF THE INTERPRETATION OF WILLS, ^:^^V^"''\t>^ BY SIE JAMES WIGEAM, /;^ ^ .,, -^9' lATE VICE CHANCELLOR. j 17. ^ \'l~ ~'' EXTEISIYE ADDITIONS TO THE TEXT, AND COPIOUS EEFERENCES TO AMERICAN CASES, BY JOHN P. O'HARA, COnNSBLLOB AT LAW. 8E0OKD AMERICAN, FROM THE LAST LONDON EDITION. NEW YORK: BAKER, VOORHIS & CO., LAW PUBLISHERS, 66 Nassau Street. 1872. 'X^ ^ X^ ^ Kn^tered, according to Act of Congress, in tlie year eighteen hundred and serenty-two, by BAKER, VOORHIS & CO., In the office of the lAbrarian of Congress, at Washington. BAEEB & GODWIN, PRINTERS, Frinting-Hoase Square. GENERAL PREFACE. The construction of every document depends upon the terms used, and the parol evidence allowed by law to explain the meaning of those terms. The object of the first part of the following treatise is to show what internal evidence is, amd when it may be successfully confronted by extrinsic proofs. Internal evidence, or'co'nstruction, means the primary sense of the words used. This meaning of the terms always prevails, unless the language ifi thereby rendered inoperative. Even this result cannot be avoided in applying a will, if the difficulty re- lates to the words of dispositiop, the quantity of interest, or the meaning of an abstract term. Part I is intended to show, how- ever, that an ambiguity may be explained by extrinsic evi- dence of the testator's circumstances, if the difficulty relates to the subject or object of gift, and results from inaccuracy of description; while even evidence of the testator's intention may be given, if the ambiguity is owing to equivocation and not wholly to inaccuracy ; in other words, if the description suits two or more persons, or things. This edition of Sir James Wigram's work will, it is to be hoped, give an account of, or references to,_ most of the American cases materially affecting the application of extrinsic evidence in aid of the in- terpretation of wills. The rules cited in Part I are essentially of a philosophic and even of a scientific nature. An author who covets perpetuity of fame may gain this by writing a good work on evidence, while a treatise upon any technical branch of law will enjoy as ephemeral a career, as the special doctrines or statutes on which it is founded. Oases decided contrary to the general principles relating to the admissibility of parol evidence in aid of the construction of wills, as described by Sir J. "Wigram, are absolutely of no au- thority, unless so far as Sir J. Wigram himself may have deviated from first principles. Case-law under Part II is, on the contrary. VI GBlSrEKAIi PBEPAOE. all important. If the question at issue is governed by a prece- dent, no reasoning on first principles will be listened to by the court. Eules of construction, therefore, are much more numerous than rules of the branch of evidence treated of in the first part of this work ; and a knowledge of first principles without an intimate acquaintance with the leading testament- ary cases, is of no avail in an argument on the constructioa of a will, as far as the internal evidence of its meaning is con- cerned. The treatise on the construction of wills is an efibrt to give, free from all historical matter, and from cases either obsolete or of doubtful authority, the present rules adopted by the American tribunals for the interpretation of wills. The author feels much the disadvantage of going over the same ground that has been so ably mapped out by others. The law of wills, however, is undergoing change every day, and a recent com- pendious account of these alterations will perhaps be found not to be without its use. Part II, therefore, of the subsequent work has been in- tended to contain in a compressed form all the leading rules of testamentary construction, together with the appropriate cases. These decisions are not, like the cases in Part I, mere examples or elucidations of certain a priori principles, but are them- selves, as already stated, the ultimate guides for future investi- gation. Whether they are jurally sound or not, they are law, until reversed on appeal, or by the legislature. But, as regards Part I, no case is of any authority that deviates widely from first principles. My obligations to Jarman are patent everywhere in this work. But they hardly need this extrinsic acknowledgment from me, especially as I so often refer to that main source of va^ information. The indexes have been prepared with much regard to copiousness and appropriateness of reference. INTRODUCTION. RULES OF LAW, DISTINGUISHED FROM PRINCIPLES AND RULES OF CONSTRUCTION. Rules of law differ from both principles of interpretationj and from rules of construction, inasmuch as rules of law relate to the incidents of property itself, and not to gifts or contracts. Thus the power of an adult male to alien property springs from a rule of law and cannot be defeated. The incidents of dower and curtesy to estates of inheritance also result from rules of law. These doctrines are founded on principles of public policy, and do not admit of being contravened by any private citizen. Principles of construction are also founded upon a regard to public policy, and cannot be precluded by a testator. These principles are applicable, alike to every kind of limitation. They are thus distinguished from rules of construction, which relate only to particular doctrines of law, such as that any words of perpetuity in a wiU may' pass a fee. Doctrines relat- ing to parol evidence, or the liberal interpretation of a will, imply principles of construction. The maxim that the latter of two wholly inconsistent gifts in a wiU must prevail, seems also to be a principle of construction ; since any previous intima- tion in the will to the contrary is necessarily disregarded by the ^ testator. The lex rei sitOB, however, may be precluded by a tes- tator provided he seeks not to infringe upon any rule of law of the loci rei sitce. To principles of construction also belong all gypres doctrines, according to which words are transposed, altered, or expunged, in order to effectuate the testator's meaning. But, rules of construction may be ignored by a testator, while they also apply only to particular limitations, and not to all. Thus the rule in Shelley's case is a rule of construction since it does VIU INTRODUCTION. not apply to gifts for life. Such, too, is the rule m WUcPs ease ; in Archer's case / in Borastcm^a case, &c. Jarman, indeed, considers that the rule in Shelley's case is a rule of law. It appears, however, to be neither a principle of interpretation (since it is not applicable to every kind of testamentary gift), nor a rule of law, since (unless Jarman's petitio primcvpi/i is conceded), it may be defeated by a clear indication of intention on the pare of the testator that it is not to apply. Bules of law, rules of public policy, and rdtiones judicandi or principles of interpretation, are thus alone beyond the power of a testator to override by any declaration of his own inten- tion. Eules of construction are entirely at his mercy. There- fore, there is not a single such rule commented on in the fol- lowing pages that may not be precluded or overborne by the special text of a will. Wills, nevertheless, are ex post facto as subject to rules of law and construction as deeds, only the rules are of a different kind, and are much more numerous, though analogous to rules of the common law. Conversely, intention is the key even to the construction of a deed, though this intention must be considered as subordinate to precedent, and the rules of interpretation established with respect to deeds, and the phrases as to which the maker of a deed, unlike a testator, has no choice. It is desirable, indeed, that precedent, as distinguished from common law, should be strictly observed in the interpretation even' of wills. For, where testamentary case-law is grossly wrong, it can be remedied by statute, and where it is at all rea- sonable, it both prevents many cases from being litigated, and also acts as a barrier against judicial aberration. Rules of testamentary construction are necessarily more numerous than those that regulate contracts inter vivos. For, not only will the rules applicable to deeds prevail as to test- amentary gifts, if there is nothing in the will to authorize a departure from those rules, but, in addition, the phrases gov- erned by these rules, when accompanied by certain other forms of expression peculiar to wills, and common in these instruments, assume a new meaning ; while, finally, various clauses are interpreted neither according to their grammatical nor technical signification, but in what may be called a test- amentary gense, or Qy jares. INTEODUOTION. The presumption that every one knows the law is conclusive as regards parties to deeds, but is only prvmA facie as respects testators, unless, indeed, we suppose that the law he is pre- sumed to know is either testamentary case-law, or else the doc- trine that the ordinary rales of law applicable to transactions inter vivos, do not strictly apply to the construction of wills. The leading rules of testamentary construction, ^ most of which also indicate inflexible principles of interpretation, may be briefly summarized as follows : — 1. Devises are construed by the lex rei sitce ;^ bequests by the lex domicilii? Semble, the application of these rules may be precluded by a direction in the will not infringing upon any rule of law of the loci rei sitce; in other words, these doctrines are rules of construction, and not rules of law or principles of interpretation. 2. The intention of the testator is to be sought and fol- lowed, but subject to the limits prescribed by statute, principles of public policy and of interpretation, precedents, and estab- lished rationes jitdicaaidi? 3. The testator's primary intention, subject to the qualifi- cations hereinbefore mentioned, controls and modifies any dis- position in the will inconsistent with such primary intention.* 4. The phraseology of the will is presumed to be in accordance with the rules of correct etymology,' and of the common law, unless the will itself contains evidences of a contrary intention, by furnishing its own glossary,* either explicitly or by an obvious peculiar use of words,' so far as such use is not incon- ' sistent with rules of public policy or law. ' 2 Jarni. 741 ; see, however, Story Confl. Law's, § 479 b ; 3 Green- leaf on Bv. § 671. ' Pempde «. Johnson, 3 Ves. 198, Sumner's ed. and notes ; Kerr «. Moon, 9 Wheat. 565 ; Potter v. Titcomb, 23 Maine, 303, 308. For other cases elucidating these propositions still more completely, the reader is raferred to the appropriate titles in the index and table of contents of Part n. The cases here cited are adduced only by way of general illustration. ' 2 Jarm. 739 ; Hawley «, Northampton, 8 Mass. 8 ; Morton v. Barrett, 23 Maine, 357, ' Oovenhoven v. Shaler, 2 Paige, 133 ; Walker ». Walker, 17 Ala. 896. ' 18 Ves. 466, Sumner's ed. notes. ' Doug. 269. ' Ide ». Ide, 5 Mass. 500 ; 3 Beav. 353 ; 3 Mer. 889. X IKTKODUGTION. 5. The grammatical is the presumed sense of the terms used ; but technical terms will be construed according to their technical signification, unless a contrary use of them by the testator is apparent in the wiil.^ 6. Every clause and word will, if possible, receive a mean- ing, even though this may modify the primary sense of other parts of the will.'' 7. Every disposition will be sought to be efi'ectuated, either wholly or at least in part.' 8. The maxim that a document may be incorporated in another by reference — verba relata inesse videntur — applies to wills, even though the extrinsic document is not executed as a wm.* 9. Implication is pot allowed, unless it is necessary or indispensable for a sensible effect bei*ig given to the context.' 10. Implication is not allowed to control an express dispo- sition, if the clause is equally ^ consonant to the testator's designs.' 11. An express and clear gift is not affected by the addition of ambiguous or false description or designation.' 12. If a certain clause or term is not made sensible by being transposed or altered, it will be deemed expunged.^ 13. Of two wholly opposite and irreconcilable clauses, the latter will prevail, if both are equally relative to the testator's' main intention.' ' ^ * 14. A void devise will not be rectified, except that, if legal in a secondary sense, it will be so interpreted, and executed gyjpres}" 16. A manifest mis-writing, as " with issue " for " without issue," will, be so interpreted ; but no total blank can be ' Mowatt «. Oarow, 7 Paige, 328 ; 2 Ball & Bei 204. ° Jones !). Doe, 1 Scammon, 276 ; Lasher ■». Lasher, 13 Barb. 106. " Leavens v. Butler, 8 Port. 380 ; Kane v. Astor, 5 Sand. 467. * Bee Nichols v. Lewis, 15 Conn. 137. ' 8 Rep. 94 ; see Linstead ». Green, 2 Md. 82. ° Chinn v. Respass, 1 Monr. 11. ' Pratt V. Eice, 7 Gushing, 209. ' Homer ». Shelton, 2 Met. 20. ' Cook V. Holmes, 11 M^ss. 528. ■» See Bartlett v. King', 12 Mass. 537. INTRODUCTION. XI supplied, noi* will a term be altered unless with aid from the context.^ 16. The construction of a will is not to be moulded by events,'' but by the language onlj, and as interpreted according to the rules of law, and with the appropriate extrinsic evidence. 17. A testator is presumed to expect that his will shall apply to the subjects and objects of his bounty at the time of his death, and consequently he is not supposed to provide for lapse or ademption, unless the will discloses an intention to that effect.' 18. A presumption exists in favor of common law and vested interests.* 19. An heir (and "this doctrine is virtually applicable, also to dowresses, tenants by the curtesy, next of kin, and all claiming by the post or act of law), is not to be deprived of his common law rights, except so far as such rights are absolutely inconsistent with the dispositions in the will. Gifts of prop- erty contrary to these rights are strictly construed, and, where the context is ambiguous, merely negative words exclude only rights iinder the will, and not those accruing by a common law devolution of property. Semble, a primary liability arising under a statute ought to be interpreted in the same way as if the burden was imposed by the common law/'' 20. The rules relating to the construction and evidence of meaning of a will are the same in all courts, whether of law or , equity, except that where equity in certain cases raises a pre- sumption against the letter of the text, the court will, in such cases, permit parol evidence to be adduced both for and against such presumptions. At common law neither the presumption nor the parol evidence is admissible.* 21. A commonlaw interest is never construed an equitable one exclusively. But, the testator's intention is the guide as to whether any particular gift is legal or equitable.' ' S.Mod. 59. ■■' Cases Temp. Talbot, 31. " Montgomery v. Montgomery, 3 Irish Eq. 161. * Ferson o. Dodge, 33 Pick. 387 ; Dingley v. Dingley, 5 Mass. 535. ' See, however contra, Mellish v. Vallins, 3 Jo. & H. 1 94. • See i Greenleaf on Ev. § 390, et seq. ' See Richardson v. Noyes, 3 Mass. 36. XU INTEODUCTION. 22. A will never passes seisin, or a right to the possession of land or chattels, 'until after the death of the testator. But the dispositions in the instrument may be moulded by reference t6 past, present, or future events.* It thus appears that the testator's intention must always be subject to rules 2, 3, 6, 7, 9, 15, 17, and to all the rules relat- ing to the admissibility of parol evidence. PAEOL EYIDEECE. 23. Parol evidence is always admissible to apply the dispo- sitions in a will in their primary sense to their appropriate sub- jects and objects.^ 24. Parol evidence is thus used in respect to matter of prac- tice, viz. : in applying a disposition according to the grammati- cal sense of the terms used.' 25. Parol evidence is \ never applied in aid of the interpre- tation, except when the primary meaning of the will or a part thereof is insensible or inapplicable to the state of facts to which it professes to relate,* or else when an equitable presumption is raised against the letter of the will. 26. "When the disposition is insensible according to the primary sense of its terms, parol evidence in aid of the con- struction is admissible of the testator's circumstances, but not of his intention, in order to effectuate the dispositions of the will in that secondary sense of the terms used which is nearest to their grammatical meaning,* provided such sense is consistent with the. testator's primary intentions. 27. Parol evidence of the kind just mentioned is admissible of the meaning of technical, unusual, or foreign phrases, as also of general, local, or trade customs of any kind, and likewise of the appellations used by the testator with respect to the sub- jects or objects of his bounty, when the will, according to the primary meaning of its phraseology, is insensible or ambiguous on these points.* ' Gold ®. Judson, 21 Conn. 616. ' Wooton V. Eedd, 13 Grat. Va. 190. " 1 Greenleaf on Ev. § 390> * Brown ®. Saltonatall, 3 Met. 426,- Hand v. Hoffman, 8 Halst. 'I'S. . = See 1 Story Eq. Jur. § 181. • Grant «. Grant, 39 L. J. R. iS". 8. 27S ; Ryers v. Wheeler, 32 Wend. 148, INTRODUCTION. XIU 28. Parol evidence ia not receiveable of the declarations of a testator, or to what he meant by the use of an abstract term, as " mod," child,^ &c. ; but parol evidence in such cases is ad- missible of the testator's habits, and ofjthe meaning commonly attached by him to such expressions. '^ The case is one of ambi- guity, but not of equivoca,tion. In other words, it is difficult to give the term any application. But there is no contest be- tween two or more subjects or objects of a concrete nature.^ 29. Parol evidence is not admissible to prove that a word of limitation was used as a term of purchase, or conversely,^ or that a lapse was intended to be provided for.* 30. Parol evidence is admissible only to explain concrete and not abstract terms. But, it is admissible in respect to cumu- lative^ legacies, and legacies to creditors or debtors." 31. Parol evidence is admissible to rebut any equitable pre- sumption that is contrary to the grammatical meaning of the words in the will, such as the presumption against double or cumulative legacies.' 32. Parol evidence of intention is not admissible in questions of cumulative legacies,'^ or to show that a legacy is charged on land.* These fall under the third, and not tlie seventh, of Sir James "Wigram's Propositions. 33. In other cases of equitable presumption — ^^as of the satis- faction of a debt by a legacy — evidence of the testator's intention is admissible.* In other words, the case feUs under or belongs to the class governed by Proposition III, when the presumption is . founded wholly on matter that is documentary, but the case is to be reckoned with those belonging to Proposition YII, when the presumption is partly founded on matter dehors the will such as ademption, satisfaction, payment, &c. 34. Parol evidence of the testator's intention or deelarations may be adduced when these are part of the res gestce under inquiry, as in a case of imputed fraud, accident or mistake, or in respect to the ademption or payment inter vwos of an intended gift, ' Groblet v. Beechey, App, No. 1, Part 1, » Comfort V. Mather, 3 W. & 8. 450. " Id, * WUson V. O'Leary, 20 W. R. 28. " See Blond v. Bliakinbeard, 8 B. Mon. 397. ° See 1 Greenleaf on Bv. 387, et seq. ' Wilson V. O'Leary, 20 W. R. 38'; Osborne v. Duke of Leeds, 5 Vea. 369. « Dey V. Day, 4 0. E. Green. 137. « Wallace v. Pomfret, IX Yes- 547. Xiv INTRODUCTION. or when the testamentary gift would be rendered uncertain and void by extrinsic circumstances, and would be incapable of being applied to any subject or object in particular, unless such evidence were adduced, while the gift as determined by. the construction of the document alone is, in the abstract, imper- ative and accurate, both in respect to a subject and object of the testator's bounty.* 35. In cases of accident and mistake, parol (evidence of every kind is admissible to nullify a will or part thereof, but not to correct or reform it.** 36. In cases of fraud, a disposition may be either nullified or reformed, provided the author of the fraud took a benefit under the will, or otherwise profited by his deceit.' • It thus appears that the American testamentary code is essentially the same as that of England. The exceptions to this statement are mainly three : 1. The rule in Shelley's case is recognized only in some States, and even in these but to a lim- ited extent. Any intimation of opinion to the contrary, such as existed in Perrin v. Blake,* will be acted on by the court. The rule is thus here one of construction exclusively, and not of law. There is no likelihood that the American courts will deviate from this doctrine, which certainly has convenience to recommend it. 2. Charitable gifts are not executed gy pres in most of the States. But, as this negation of py J9^^^ appears to have been founded on the erroneous assumption that the En- glish Court of Chancery has no jurisdiction in respect of char- itable gifts at common law, it is probable that with further light on this point, the bounds of the American rule will become ulti- mately coincident with the similar doctrines established by the equity decisions in England. 3. Trust powers, senible, are not as readily enforced here as in England. These are the only important exceptions to the general English law of testaments. For, our law of parol evidence is daily approximating more ami more to that of England, if we except only the rule in Doe d. Hiscocks v. Hiscocks.* 'Den B. Bolick, 1 Iredell, 344; Tudor®. Terrel, 2 Dana, 49. " Part I, pp. 264, 280, et seq. = 76. * 4 Burr. 2579. ' M. & W. 363. PREFACE TO PART I. Paeol evidence is in all cases used to apply the dispositions in a document. The following treatise, therefore, relates to the \xse of parol evidence in aid of the construction, and not when the testimony is adduced to apply the gifts in question to their intended subjects or objects, according to the primary meaning of the terms employed./'Much confusion is occasioned- by the conflicting statements to be found in the reports to th6 eflPect that the court can put itself in the place of the testator, and that it cannot so place itself. It can always, however, do so for the purpose of applying the dispositions in a document according to the primary sense of the terms used, ^ut, it is only in certain cases that it can be guided by the light of ex- trinsic evidence in aid or reformation of the construction, as distinguished, from the application of the words according to their primary meaning. IVThe subjoined work is concerned with discriminating those instances where parol evidence may be thus used in aid of the construction from those seemingly anal- ogous cases where the evidence cannot be so applied. Of the cases admitting of the use of parol evidence in aid of the construction, some are open only to proof of the testator's habits and usages, but not of his intention, although that is the sole object sought to be reached by all testamentary evidence. This boundary line is marked out by Propositions Three and Five. In other cases, the testator's declaration on the point in question may be directly proved. Proposition Seven defines when evidence of this nature may be given. Proposition One relates to construction, and not to evidence, and Propositions Two and Four are of a similar nature ; since it is by force of a general rule of law, and not by means of evidence relating to a concrete subject or object, that a; will is applied according to the primary sense ,of its terms, or that evidence is admissible to 8 ^ PREFACE TO PART I. determine the meaning of technical expressions, or of a usage trade. Proposition Six is but the negative converse of Pro sitions Three and Seven.- These two last propositions rea comprise the whole domain of the law of parol evidence in i of th« construction of written documents. Still, the more exti sive division adopted by Sir James Wigram, has its uses, a tends to throw light on the primary foci. Of the philosophic excellence of Sir James Wigram's wc there never has been any doubt. The treatise is also as pra( cal as it is well composed, and contains a mine of informati upon almost all branches of its subject matter. A eai omissus, indeed, occurs in it, with respect to equities a equitable presumptions. But this defect has been sought to remedied in the present edition.^ Sir James Wigram appears to have been of opinion* tl parol evidence may be adduced to show the quantity of inten intended to be conferred on a beneficiary. This, however, c never be done directly, although the quantity of interest taken a particular donee is often defined by reference to the inten given to another, as to whose rights parol evidence has be adduced. But, sucb a remote or indirect consequence of t adduction of parol evidence has no logical relation to t testimony in question. A thousand other results, may ens from the adduction of parol evidence, witb which, neverthele all would admit that such ulteri^or consequences have no nee sary connection. It may safely be asserted, therefore, tl; parol evidence can never be used to define the quantity interest taken by a particular beneficiary, although the genei evidence, if it throws light on this point, is not to be reject on that account. The result in question still has no legal co nection with the evidence. Jarman' and others state, in general terms, that parol e dence may be used to rebut the presumption of a resulti: trust. It has been a leading object of the present edition discriminate the resulting trusts which may be thus defeat from those which may not. For, parol evidence is nev admissible to defeat a trust that results by construction law. The presumptions that fall under Proposition Three a % ' P. 264 et seq. » Proposition V. » Vol. I, 357. PREFACE TO PART I. 9 also distinguished from those which come under Proposition Seven, and admit of direct evidence of the testator's in- tention. A case of election can never be raised by parol, although the contrary has been sometimes stated. An election, however, of course may be the result of the adduction of parol evidence under Proposition Three or Seven. But, as has been already stated with respect to the legal quantity of estate granted, an indirect consequence of evidence has no connection with the rules regulating its admissibility. It is only with respect to a concrete subject or object that parol evidence can be at all adduced in aid of the construction, and it is only when the contest is lietween two or more such subjects or objects, all of which are described in the will with legal certainty, that direct evidence of the testator's intention can be given. The operation of these two rules may give a donee a leasehold and not a freehold, and may also put him to his election. But, no evidence can be adduced for the sole pur- pose of defining the interest intended to be given to him, or of showing that the testator intended him to do a certain act. The testator's intention can never be proved with respect to any act, but only for the purpose of identification, where the terms of the gift are equivocal. The law of evidence is daily assuming a more consistent and philosophic form, both in England and the United States. In the former country it has nearly reached perfection. With us it is still somewhat nebulous, but tends constantly to con- form to the analogous English rules. Our law of testamentary evidence resembles the English rules of the Eldon period. Con- trary to the general tendencies of the courts of both nations, with respect to rules of law and of construction, the rules of evidence are, in the main, sought to be enforced more rigidly now than formerly. It is hard to pronounce an opinion upon a course which tends to shut out evidence. Still, it is doubtless better that the intended beneficiaries of a few testators should be disappointed rather than that all titles under wills should be open to endless litigation. Tlie decision in ex parte Hornby^ shows that the doctrine ' 8 Brad. 430 ; infra, p. 167. 10 PEEFACE TO PART I. held in Doe Proposition V. — For the purpose of determining the object of a tesfator's. bounty, or the subject of disposition, or the quan- tity of interest intended to be given by his will, a court may CONTENTS. 15 Page inquire into every material fact relating to the person who claims to be .interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the Court to identiiy the person or thing intended by the testator, or to determine the quan- tity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator's words 143 Pboposition VI. — Where the words of a will, aided by evidence ' of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases, see Prop. VII.) will be void for uncer- tainty 175 Proposition VII. — Notwithstanding the rule of law, which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning — courts of law, in cer- tain special cases, admit extiinsic evidence of intention to make certain the person or thing intended, where the descrip- tion in the will is insufficient for the purpose. These cases may be thus defined : where the object of a testator's bounty, or the subject of disposition (i.e. the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so de- scribed was intended by the testator 188 FmST PROPOSITION. General Illustrations 68 Case — Dent V. Pepys 61 [Latent ambiguities — resulting trusts — fraud — ^lapse and ademption open to parol evidence 61 A will is sometimes void for uncertainty 61 An error of Jarman corrected by his editon 61 Eelations of the context, statutes, and custom, to the primary meaning of a clause 61-3 Primary meaning when not varied 63 Words not transposed by the aid of parol 63 Local usages — ^Anstee v. Nelms 63 Relations of English case law to American testamentary law 63 16 OOKTBNTS. Pj Clayton v. Lord Nugent. , . . , ' A document may be incorporated in a ■will by reference Proposition I relates to a testator's general intention Construction ey pres Of two inconsistent clauses the latter prevails unless it is opposed to the testator's general intention Force of rules of construction, and technical expressions in America Proposition I relates to construction, and not to evidence]. SECOND PROPOSITION. General Illustrations 66 Cases — ^ Beaumont v. Fell Delmare v. Kobello Hampshire «. Peirce Strode «. Russell Hall V. Fisher Pocock V. Bishop of Lincoln Doe d. Oxenden v. Chichester Stone ». Greening Anstee ■». Nelms Westlake v. Westlake Jeflferies v. Mitchell '. Mounsey ■». Blamire Se Davenport's Trust Boys V. Williams Saver «. Sayer ; Fraser v. Pigott Overhill's Trust Doe d. Ashforth v. Bowen ' Wilson V. Squire ' Richardson v. Watson Doe d. Templeman v. Martin Thomas «. Thomas Devise " to one of the sons of A.," who hath several sons Attorney General v. Grote Horwood V. Griffith CoUison B. Girling Exceptions to the Second Proposition Druce v. Dennison Qu. ? if not reversed Relations of election and satisfaction to parol 91 French v. Caddell, and the analogous cases [Unless the will is'ambiguous, parol evidence is excluded COKTENTS. 17 Fags The ambiguity, too, must relate to the subject or object, and not to the disposing terms 97 If the primary meaning of the words is sensible, parol evidence is inadmissible . • 97 Appointments of personalty are wholly questions of coDstruction. . 98 The coverture or infancy of a devisee does not prevent the legal estate from passing to him 98 Executor cannot be proved to be a term of purchase 98 The words " appurtenances," " thereunto belonging," may ex- tend the scope of a devise 98 j AUan V. Vanmeter, considered. h 98-9 Qu. ? also, as to Doyal v. Smith 99 Betts V. Jackson 99 Pool «. Pool 99 Doe d. Brown v. Brown 99 Parol evidence is admitted only through necessity. 99 Cases where the description, though inaccurate, yet suits one person more than another 100 Construction aided by the maxims, "false demonstration," "mis- i' take of name," &c 100 poe d. Preedy v. Holtom 101 Relations of parol evidence to gifts to children, as a class 101 Law of parol evidence throughout the States 101 . in New York 101 Brearley v. Brearley 102 Grant v. Grant ' 102 i. patent ambiguity is curable only by constructioja] 102 ; THIRD PROPOSITION. Gfeneral Illustrations 103 Case — GiU V. Shelley 104 [Major limits of parol evidence 106 -Illustrated by the law of libel 107 Evidence of conversations inadmissible 107 Lafent ambiguities open to parol. . . ; 107 8o ^re customs of trade, trade marks, and abbreviations 107 GraV ». Harper. . . . , 107-8 Rutland & Burlington R. R. Co. v. Crocker, as opposed to Boydell «. Drummond 108 presumptions are latent ambiguities with respect to parol.. 108 open to parol ■- 108 jiarties to a deed, as also its date and delivei-y, may be proved by parol evidence '. 108 »A legal description sufficient 108 18 CONTENTS. Principle on whicli probate was formerly granted of inaccurate bequests Qu. ? is realty subject to the same loose rules An inaccurate bequest illustrated Misnomers are rarely fatal defects , A (^lause must be inoperative before parol eyidence is admissible. . . Gifts to illegitimate children Legal presumptions ought not to have been open to parol The principle of parol evidence is that of judicial notice The function of parol evidence is to give a meaning to words, but not to add to them False designation distinguished from false demonstration Still V. Hoste ; : Error of description remedied by correctness of appellation Bradshaw v. Bradshaw An opinion of Jarman examined Parol evidence is connected with the rule respecting res gestce .....' Rule in Doe d. Hiscocks v. Hiscocks Dictum in ex parte Hornby , Rule in Delaware Directions to scrivener are not admissible in evidence Rule as to cumulative legacies Legacy to a debtor Land may be proved by parol, in some States, to be the primary fund for creditora ; sed Qu Charge on rents and profits open to parol evidence Wildness of land in Massachusetts may be proved hy parol Identification of a party, and proof of a custom, may be made by parol Illegality, misrecital and misdescription are provable by parol Relations of parol to a reference to metes and bounds Winkley v. Eaime ■. . Allen V. Lyons Misdescription 12 A general devise may pass leasehold Inaccurate specific bequests of stock Testators' declarations sometimes admissible under Proposition III. Evidence to identify Sanford v. Raikes ■ Relations of parol evidence to future dispositions 12 Tifft V. Porter Stubbs V: Sargon Ellis 1). Essex Merrimac Bridge ' Extrinsic evidence is often diverted from applying a will to con- struing it Jarman's elucidation of this view • A gift to children further considered COIJTENTS. 19 Pace Qu. Are Jarman's views consistent with those of Sir J. Wigram ? . . 133 A term may hare several primary meanings 133 Parol evidence is confined to the subject and object of gift 133 Quantity of interest not a subject for parol evidence 133-4 Sir J. Wigram's opinion on this point considered 134 Gift divisible into subject, verb, and object 134 Verb not open to parol 134 Evidence of intent not allowable under Proposition III 134 The question of intention ia the case of a usage, is one for the jury] 134 FOURTH PROPOSITION. General illustrations 135 Cases — Masters v. Masters 135 Norman v. Morrell 135 Goblet V. Beechey 135 Cases in the notes 135-7 Kell «. Charmer ; 137 [Figures, ciphers, shorthand, foreign and technical expressions may be explained by parol •. 137 Testator's habits may be proved by parol 137 Sectarian terms may be explained by parol 138 Lee 17. Paine 138 Defect of Proposition IV 138 Cases of pet or nick names 138 Proposition IV is very comprehensive 139 Blank cannot be filled up by parol 139 Propositions III and IV reducible to one ; 140 Goblet V. Beechey 140 Explanation of technical terms is not strictly evidence of facts . , . 141 Evidence of usage should be confined to the circumstances of the usage, and should not extend to the witnesses' opinion thereof] 141 FIFTH PROPOSITION. Contrasted with Proposition IV 143 Evidence admissible under the Fourth Proposition determines the meaning of words in the abstract ■ . 143 Evidence under the Fifth is applicable to determine the meaning of words in the will 143 Example 1. — Description in a will, however accurate, requires ex- trinsic evidence 143 Example 3. — Description in a win, though inaccurate, may be suf- ficient ; aijd extrinsic evidence is necessary to determine that question 144 20 CONTENTS. Cases illustrating this 14< Kennell v. Abbott. , .^ Example 3. — Upon the same principle, extrinsic evidence may be necessary to show the general circumstances relating to a testator, his family, etc Cases illustrating this 141 The principle escplained 15! Hypothetical case illustrates the principle in extremis No distinction between latent and patent ambiguities, as to ad- mitting evidence of collateral facts and circumstances only Example 4. — Same principle where the quantity of interest given by a will ia to be determined Cases — Pocock V. The Bishop of Lincoln Same v. Lord Huntingtower Miller ®. Travers Gall V. Esdaile r ■ Pearne ' Example 5. — Usage admissible to interpret writings " The principle applied to all written instruments Conclusion from the preceding examples that a court, in constru- ing a will, is bound to place itself, by means of extrinsic evidence, in the situation of the testator Do'e d. Oxenden v. Chichester, not at variance with this principle. [Parol evidence is more freely admitted in America than in Eng- land Perkins «. Jewett. The phrase, " aU my effects," may be explainfed by parol here, but not in England : — Eiag V. Ackerman The word heir cannot be explained by parol , . The later decisions alone are of value, as regards the admissibility of parol Hone V. Kent Meaning of the term '' appurtenances" may be shown by parol. . . Doe d. AUen v. Alleb Testator's declarations respecting the meaning of the word chil- dren, are inadmissible - The term servant may be explained by parol ; aed qu Relations by affinity are comprised under terms designating kin- dred — e. g., nephew Principle established by Herbert «..Reid, and Grant ». Grant Semble, the question is one of construction, if the description suits one person more than another 16 Disinherison cannot be effected by parol CONTENTS, 21 EiOE Holmes v. Constance 168 Eule in New York as to tie circumstances of testators' children. . 169 Hard to distinguish sometimes between Propositions HI and Vn 169 Smith V. Smith 169 Strode v. Falkland 170 Proposition V is comprised in Proposition HI ; 170 Election cannot be raised by parol 171 Quantity of interest is also a question of construction, and not of evidence] 171 "Material facts."— Explanation and illustration 171 The question will change with the purpose for which the evidence may be receivable 173 SIXTH PROPOSITIOlSr. The propriety of admitting evidence of facts and circumstances collateral to the question of intention assumed in this proposition .* 175 Assuming the intention to be uncertain, notwithstanding the ad- mission of such evidence — _ 1. Shall the will be void for uncertainty ? or, 3. Shall evidence be admitted to prove intention ? 176 Lord Cowper's opinion 177 Sir John Strange's opinion 177 Tracey's (J.) opinion 178 Lord Hardwicke's opinion 178 Opinions of other Judges, and the authorities deciding that evi- dence of intention is, in general, inadmissible 178-182 Further cases — Richardson v. Watson 183 Clementson v. Gandy 183 King V. Badely. . 183 Preedy «. Holtom 183 Bemhle, the opinions of Lord Cowper and Sir John Strange are overruled 184 Void for uncertainty 185 [American law and cases respecting uncertain testamentary gifts].. 187 SEVENTH PROPOSITION. Cases in which evidence has been received to prove intention 189 Reynolds v. Whelan ; 189 Selwood 1}. Mildmay. 191 Observations upon this case , 193 Doe v. Huthwaite 193 Door V. Geary. 193 22 . GOKTENTS. Dobson ». Waterman Penticost v. Ley Evans v. Tripp ". . . . In the preceding cases, the proposition that intention (as a fact), might be proved, not fully recognized Cases in which intention as a fact, independent of the words of the will, has been proved — Oheyney's case '. Orounden v. Clarke Jones v. Newman : ^ Hampshire V. Peirce Price V. Page ■ Hodgson v. Hodgson Beaumont v. FeU i I>oe «. Westlake Still V. Hoste ". MS. case Miller «. Travers, as decided by the Vice-Chancellor ' Observations upon the state of the authorities prior to the decision in Miller v. Travers 300- Qu ? the principle (if ^ny), upon which evidence to prove inten- tion is, in any case, admitted Admission of evidence to prove intention, where the description is applicable to, and describes several subjects, may be defended But not where the description in the will does not describe and ascertain any subject with legal certainty The question considered, with reference to the common law, before the Statute of Frauds The same, under the Statute of Frauds Qu ? whether, before the Statute of Frauds, evidence was admis- sible, except to determine to which of the several subjecis, ascertained and described in the will, the description was intended to be applied The question considered with reference to the consideration that exclusion is the process The question considered with reference to the observation that the diiHculty is raised by extrinsic evidence The reasoning upon this view of the case not admissible The admission of evidence of intention ,to fill up a blank not a greater violation of principle than the admission of similar evidence to make perfect an insufficient descrip- -tion No distinction in principle, whether the description is inaccurate upon the face of the will, or is shown to be so by extrin- sic evidence, , COIfTBNTS. 23 Page Observations upon Goblet v. Beechey, with reference to the point last mentioned 207 The distinction between cases in which the substance, as distin- guished from the denomination only of a subject, is uncer- tain—disapproved 308 The general principle further considered 308 Application of the doctrine to instruments other than wills 308 n. Beaumont v. Fell observed upon : 309 Decisions in the excepted cases, arbitrary, according to the au- thorities before Miller v. Travers 310 The cases before Miller v. Travers, confined to cases in which the person or thing intended only was uncertaip 311 Apparently extended to aU cases of uncertain description of the person or thing intended 311-313 The question and point decided in Miller v. Travers 313 The question and point decided in Lord v. Needs 313 The question and point decided in Hiscocks v. Hiscocks 313 Miller v. Travers on appeal ; 313-313 Cases, etc., considered in this judgment — Lord Bacon's Maxim 213 Edward Altham's case 314 Denn v. Page 316 Statute of Frauds 317 Lowe V. Huntingtower 317 Lord Coke, 8 Kep. 155 317 Standen «. Standen 218 Mosley «. Massey 318 Selwood v. Mildmay 318 Doe d. Goodtitle v. Southern 319 Day v. Trig 319 Godb. Eep. 181 330 Hunt 1). Hart 320 Doe d. Oxenden v. Chichester 330 Newburgh v. Newburgh , 221 Doe d. Gord v. Needs 333-325 Oases etc., considered in the judgment — Edward Altham's case 333 Crounden v. Clark 333 Doe V. Morgan 223 Hiscocks V. Hiscocks 335 Case, etc., considered in the judgment — Doe V. Huthwaite 328 Bradshaw t>. Bradshaw 228 Cheyney's case ' 339 Crounden v. Clarke 329 Doe v. Morgan 329 Doe d. Gord «. Needs 239 24 CONTENTS. I Jones «. Newman Price v. Page , Stm i;. Hoste Careless v. Careless Selwood 1). Mildmay , Miller v. Travers Hampshire v. Pierce Beaumont v. Fell " . . . . Bradshaw v. Bradshaw 33 Hare v. Cartridge 23: Observations, upon the judgments in Miller v. Travers, Gord v. Needs, and Hiscocks v. Hiscocks I. If the degcription in a will correctly ascertains and describes . each of several subjects, evidence to prove intention is ad- missible , 1 Cases — Eichardson v. "Watson ; Morgan d. Morgan '. An inaccurate or imperfect description, if sufficient, is within the rule Bennett v. Marshall 23 Observations upon the nature of the evidence admissible for the above purposes IL Where the description is inapplicable to, or insufficient to as- certain, any subject, evidence to prove intention is inad- admissible The distinction taken in Selwood v. Mildmay, between an insuffi- ciency in the siibstanee, and an insufficiency in the denom- ination, overruled The cases of Day ».'Trig and Goodtitle v. Southern, inapplic- able The distinction between a description wholly incorrect and one which is partially incorrect — the latter being insufficient — overruled by Hiscocks «. Hiscocks Selwood V. Mildmay, as reported in Vesey, not to be followed .... Beaumont v. Fell questionable, even with the explanation sug- gested " The MS. case (supra, p, 198) overruled Lindgren v. Lindgren .,. . . 3S Conclusion that the only cases in which evidence to prove inten- tion is now admissible are those in which the description of the person or thing in the will, applies indifferently to, and sufficiently describes, each of several subjects. Consistently with the foregoing observations, the declarations of a testator may be admissible where, upon general rules of evidence, such declaration would be admissible to prove a collateral fact CONTENTS. 25 [Evidence of circumstances distinguished from that of intention . . 243 Importance of admitting evidence of intention 343 Parol evidence is never admitted except where the primary sense of a clause is insensible 344 But evidence of intention is not necessarily, ia such cases, ad- mitted.' 244 The distinction is often lost sight of when the description is both inaccurate and equivocal 345 A description is rarely fatally defective i4245 The more inaccurate a description is, the more likely is it to be also equivocal .^. 245 Grant v. Grant further considered 346 Evidence of intention is not satisfactory ^ ' 246 Evidence of intention is of a negative nature 246 Misdescriptions are often questions of construction, and not of evidence 247 Descriptions that apply partly to one person arid partly to an- other 247 Rule in Doe d, Hiscocks v. Hiscocks 248 Contra, ex parte Hornby v. Ward 248 Evidence of scrivener not admissible . . . i 249 Meaning of abstract terms cannot be shown by parol 249 Evidence of intention is admissible only under Proposition VII . . 250 or to delete will or part thereof 250 Declarations before or after the making of the will are admissible in cases of latent ambiguity or fraud 250 Generic terms do not involve latent ambiguities 251 Beaumont v. Pell illustrates Forth v. Chapman 251 Intention may ,be proved like any other fact 251 Se/nnMe, Declarations subsequent to the will are not cogent, though admissible 353 Careless v. Careless 353 Resolution in Lord Cheney's case 353 Reason therefor ■ 353 Doe d. Morgan v. Morgan 254 Description must have legal certainty 254 Proposition YII distinguished from Proposition in 254 Necessity (in the abstract,) is the clue to this distinction] 255 Of latent and patent ambiguities 256 Lord Bacon's maxim '. 256 His commentary upon it 256 The term amUguity explained 259 The same distinguished from inaccuracy 259, 360 The application of extrinsic evidence, under Proposition V, should precede any declaration of ambiguity 260 3 26 CONTENTS. An inaccuraey apparent upon tte face of the will, within the scope of the above observation The admission of extrinsic evidence, as by law established, con- sistent with Lord Bacon's maxim And that, whether the necessity for resorting to it be apparent upon the face of the will or not ' Lord Bacon's language explained 'Phe maxim has been perverted [Eqjdties may relate to the whole will, or only to a part thereof . . Testamentary, distinguished trom contractual, equities 36' Construction of a will the same at law and in equity, except as to executory trusts . , Mistake distinguished from uncertainty Intentional omissions under the Massachusetts statute , Identification, fraud, and the rebutting of an equitable presumption open to parol evidence Reasons why accident or mistake is not remedied under a will ... Contracts and wills further compared with respect to equities Tucker o. The Seaman's Aid Society Earl «. Countess of Newburgh Effect of an omission upon other parts of the will Comstock «. Hadlyme ■ Lord Walpole «. Earl of Cholmondeley Lord Kenyon's reasoning on this case is unsatisfactory Qiuere as to Abercrombie v. Abercrombie English doctrines prevail here, except the rule in Hiscocka «. Hia- cocks ■ A mere equity, or a question of ademption, is open to parol HaU V. Hill Qumre as to Weall v. Eice Ademption distinguished from revocation Wills acts apply to revocations, but not to ademptions Roper's views respecting a testator's declarations Sir William Grant's opinion Legacies to creditors ,. Rules of construction are not open to parol . . . ., Browne v. Selwin Executor's claim to residue Parol evidence of rea gestm Principle of rebutting presumptions by parol A presumption shifts the burden of proof Resulting trusts are not open to parol Rules of construction distinguished from equitable presumptions. Ademption further considered Chancellor Kent's opinion, in Mann v. Mann, with respect to result- ing trusts CONTENTS. 27 Conclusive, or statutory, presumptions are not open to parol 276 A question of lapse is not open to parol 276 GENERAL CONCLUSIONS. Parol evidence is admissible to defeat a -will, or clause therein, but not to add thereto 277 Mistakes in statutory and in volimtarily written wills 277 Hippesley v. Homer 277 Fraud, accident, and mistake, how far open to parol 278 Fraudulent destruction of wiU 379 Trustees to illegal uses 279 Frauds on testators 279 What influence is undue 279 Much pressure allowed in the United States , 280 Effect of expurgation on other parts of will 280 Date open to parol evidence 280 A will may be set aside where it will not be modified 380 When a wiU is rectified, the equity is not one of construction. . . . 281 Evidence under the issue Deviaavit vel non 281 The.WiUp acts do not confirm any inherently invalid will 281 Undue iifluence is a subdivision of fraud 282 Story's opinion respecting declarations made subsequently to the will .' 282 This qhestion is not yet settled in America , 283 Waterman v. Whitney 283 What is evidence of res gestce : 283 Taylor v. Kelly 284 Declarations contrasted with hearsay '. 284 Doe d. V. Allen 285 Boylan «. Meeker 285 Quceire Ryers v. Wheeler 285 Parol evidence may' thus be used either to apply, modify, or defeat a will] 285 I. Every claimant under a will has a right to require a court of construction, in the execution of its office, to place itself, by means of extrinsic evidence, in the situation of the testator, the meaning of whose language it is called upon to declare 286 II. The only cases in which evidence to prove intention is ad- missible, are those in which the description in the will is unambiguous in its application to each of several subjects 386 APPENDIX. No. I. Goblet V. Beechey , 287-398 No. n. Attorney-General ». Grote 399i ENGLISH CASES CITED. A. Abbot V. Massie 139, 154 Adams v. Jones 147 Alford V. Green 161 Allan V. Backhouse 131 Allan V. Vanmeter 98 Altham's case 181, 198, 214 Andrews «. Dobson 75, 108, 140 Andrews v. Emmot 69, 137 Andrews ». Lemon 69 Anstee B.Nelms. .63, 63, 73, 98, 133 Arkell «. Fletcher 148 Atcherley ■». Vernon 98 Att'y-Gen. v. Grote. . . . 154, 183, 187 Att'y-Gen. v. Plate Glass Co. . . 136 Attorney-General v. Pyle 147 Attwater «. Attwater 75 Auther v. Autljer 60 B. Bagley b. MoUard 67 Bagshaw v. Spencer 59 Barksdale ®. Gilliat 174 Barlow v. Rhodes 309 Barnacle «. Nightingale 73 Barrow v. Greenough. 379 Bate V. Amherst 194 Bayley v. Snelham 103 Bayhs i\ Attorney-General.. 144, 179 Beachcroft v. Beachcroft.81, 103, 111, 161 Beaumont v. FeU . . 109, 138, 139, 179, 197, 198, 308, 309, wZ. 330, * ?37, 838, 351 BIngough V. Walker l83 Bennett «. Dayis 48 Bennett v. Marshall 333 Benson ®, Wittam 174 Bemasconi v. Atkinson. . . . 147, 174, 180 Bertie v. Falkland (Lord).. 48, 183 Betts V. Jackson 99 Bird«. Luckie., 66, 91 Blackman, in re 147 Blommart «. Player 95 BlundeU v. Gladstone .. 70, 113, 161, 174 Booth V. Alington 59 Bootle V. Blundell ........ 181, 187 BoydeU v. Drummond. . .48, 63, 309 Boys V. Williams 85, 133 Bradshaw v. Bradshaw ; . 114, 115, 338, 331, 333 Bradshaw v. Thompson 84, 146 Bradwin v. Harpur , 193 Brearly ». Brearly 103 Brett V. Rigden 53, 181, 183 Bristow «.^ristow 146 Brodie v. St. Paul. 309 Brook «. Warwick 59 Brown v. Brown 75 Biyn ». Godfrey 379 Brown v. Langley 180 Browne v. Selwin .. 1 19,1 81, 373, ■ 377 Buck u. Nurton 64 Bullock ». Bennett 67 Bunner v. Storm 101 30 TABLE OF CASES. C. Cambridge v. Bous 183 Camoys (Lord) ®. Blundell. . 143, 195 Careless v. Careless 339, 353 Carter s.Bentall... 60 Cartwright v. Vawdry 66 Castledon v. Turner 63, 179 Cavendish v. Cavendisb 69 Challoner v. Bowyer 183 Chamberlain «. Agar 379 Chamberlayne ». Chamberlayne. . 183, 368, 379 Chapman v. Cales 48 Cheney's Case . . .177, 179, 183, 194, 339, 353 Church V. Mundy 58 Clarke B. Blake 67 Clayton v. Gregson 137 Clementson v. Gandy. . .95, 161, 171, 183 Clayton ». Lord Nugent 63 Clergy Society, in re 84 CloTCS V. Awdry 68 Cloyne, Bishop of, v. Young . . . 180 Coard v, Holderness 60 Cole V. Rawlinson 183 Cole V. Scott 67 Colegrave ». Manley 61 Collison V. Girling 87 Colpoys V. Colpoys . . . 154, 161, 174 Comfort V. Mather 98 Compton V. Bloxham 136 Connolly v. Lord Howe 334 'Corporation of Bridgenorth v. Collins 69 Courtney «. Ferrers 60 Crook «. "Whitley 69 Crone e. Odell 161 Crounden v. Clarke 144, 194 Crowder v. Stone 58 D. T>alzell V. Welch 60 Daniell v. Daniell. 147 Danbeny «. Coghlan 70 Davenport's Trusts, in re 76 Davies «. Thorns Day v. Day Day B. Trigg 146, 319, S Dayrel ». Molesworth ^. . i De Beauvoir v. De Beauvoir . . . Delmare «. Rabello . . .100, 113, 168, 1 Derm v. Page 2 Denn v: Reake Dent v. Pepys Deveni|h ■». Baines .'. . 2 Dillon V. Harris 309, 2 Dixon V. Sampson. 1 Dobson V. Waterman 1 Docksey »..Docksey 1 Doe d. Allen v. Allen. .166, 335, g34, 350, 2 Doe d. Beach «. Lord Jersey. , . 1 Doe V. Beviss 1 Doe d. Brown v. Brown 62, Doe d. Browne ■».. Greening. .75, Doe B. Bart 1 Doe d. Caldecott ». Johnson.. . . Doe «!.,Le Chevalier "B.Hnthwaite 113,115,161,171,338,331, 2 Doe cZ. Chichester v. Oxenden. . 63, 100, 168, 1 Doe d!. Cleihents s. Collins 1 Doe (Z.. Evans «.. Evans 1 Doe d.Freeland «. Burt . . . 1 Doe d. GalUni v. GalUni .... 59, Doe d. Gibson v. Gell 1 Doe d. Gore v. Langton. . 63, 73, Doe d. Gunning v. Lord Orans- town 1 Doe d. Gwillim v. Gwillim .... Doe V. Hardy 2 Doe i^.Haw «. Earles Doe d. Hiscocks v, Hiscocks . . . 66, 69, 70,'l00, 137, 144, 153, 161, 177, 191, 193, id., 193, 195, id., 197, 199, 300, 313, id., 319, 335, 333, 333, 334, 337, 338, 239, 341, 247, 2 Doe d. Jersey v. Smith 1 Doe«. Kett... * 1 Doe V. Lucraft EITGLISH CASES CITED. 31 Doe d. Morgan «. Morgan. .223, 339, 354 Doe d. Oxenden v. CMcliester. . . 79, 95, 100, 330 Doe d. Preedy v. Holtom 101 Doe V. Eoljerts 133 Doe d. Small ». Allen 380 Doe d. Smith v. Galloway. . .81, 146, 236 Doe d. Smith v. Lord Jersey. . . 154 Doe d. Templeman v. Martin . . . 54, 84, 144, 163, 173 Doe d. Thomas v. Benyon. . .67, 162 Doe d. Tyrrell i. Lyford 98, 100 Doe d. "Westlake v. Westlake. . . 99, 167, 168, 197, 344, 347 Doe d. "Winter ». Perratt . . 58, 60, 93, 174 Door V. Geary 146, 193 Douglas «. Fellowes ., 58 Dover v. Alexander 69,, 73, 106 Downehall v. Catesby 277 Dowsett V. Sweet 144, 146 Dowson V. Gaskoin 59 Doyalj). Smith 99 Doyle V. Blake 181 Drakeford v. Wilkes 47 Druce v. Dennison 95 Dumner «. Pitcher 69, 95 Durrant v. Friend 69 Dyose v. Dyose.- 180 E. East v. Twyford 137 Eden (Sir John.) v. Earl of Bute. 163 Edge V. Salisbury 144, 180 Egerton v. Jonea 97 Ellis «. Ellis 96 Essington v. Vashon 87 Byans «. Evans 69 Evans V. Tripp 198, 198, 207 P. Farrant ■». Nichols 60 Fearon, ex parte 379 Fonnerau v. Poyntz 85, 133, 144, 148, 154, 161, 174, 180 Ford V. Ford 58 Forth V. Chapman 351 Foowler v. Fowler 119 Fraser ». Pigott 66, 81 Freemantle i>. Bankes. . . , 180 French v. Caddell 97 G. Gabb 1). Prendergast '. 67 Gall «. Eadaile 159 Gallini «. Noble 146 Gann ii. Gregory 136 Garth v. Meyrick 146 Garvey v. Hibbert 147 Gauntlett v. Carter 136 General Lying-in Hospital «. Knight 147 Giles v. Giles 146 Gladding v. Tapp 375 Goblet ». Beechy . . 135, 136, 137, 140, 141, 155, 179, 187, 307 Godfrey ». Davis 66 Goodinge ». Goodinge. . 144,161, 180, 181 Gpodlad V. Burnett 67, 147 Goodtitle «. Southern. . 174, 319, 236 Goodman «. Edwards 148 Goodwright v. Downshire 161 Gord V. Needs. . . 161, 199, 300, 313, 333, 239, 333, 289 Gordon o. Gordon Ill Gore V. Langton 153 Goss ■». Lord Nugent .44, 203 Grant v. Grant 59, 102, 110, 133, 167, 246, 249, 351 Gregory v. Smith 59 Green i>. Harvey 60 Green v. Howard 59, 161, 180 Grey v. Pearson 54, 58, 143 Gulliver d. Jeffries v. Poyntz, 164, 165 Guy ®. Sharp 163, 183 Gynes i>. Kemsley ; 146 H. Hall 11. Fisher 71, 75, 146 Hall «. Hall 379 32 TABLE OF CASES. Hall ». Hill .'371 Hampshire v. Pierce. . . . 97, 110, 177, 178, 195 Harding v. Suffolk 198 Hare «. Cartridge 332 Harris v. Lloyd 66, 81 Harris D. Bishop of Lincoln. .. . 183 Harrison v. Morton .377 Hart w. Durant 69, 105, 106 Harts. Tulk, 59, 91 Hartopp ». Hartopp 373 Harwood v. Griffith 86 Head v. Randall 60 Hedges v. Harpur 60 Herbert v. Eeid 144, 166, 174, 183 Hicks 0. Sallitt 58 Hillersdon v. Lowe 93 Hippesley ». Homer ... .47, 200, 377 Hiscocks ■». Hiscocks 53 Hobson V. Blackbm-n 147 Hodges V. Horsfall 208, 209 Hodgson V. Hodgson 196 Hodgson V. Merest 73 Holmes v. Custance 68, 70 Holsten ■». Sampson 131 Hopkinson «. Ellis 146 Horton v. Horton 160 Horwood V. Griffith 100, 205 lloste B. Blackman 67 Huguenin v. Beasley 279 Hunt 1). Beach 181 Hunts. Hort 179 Hunt V. Hunt 139 Hurst i>. Beach 119 1. Innes v. Sayer 143 J. Jackson v. Payne 101 James v. Smith 60, 81 Jeacock v. Falconer 161 Jeffries v. Mitchell . . . ...75, 100, 150 JerToise ». Jervoise 96 Jesson ». Wright 64 Johnson v. Johnson 101 Jones V. Curry , Jones V. Morgan Jones V. Newman 195, < Jones V. Tucker K. Kell v. Charmer KeUy ». Powlett ' Kennell «. Abbott Kirk V. Eddowes 96, 182, ! King V. Ackerman 163, : King V. Badeley 161, 183, : King V. the inhabitants of Lain- don King, The, v. Mashiter King V. Wright Ring's College Hospitals. Wheil- don Kinsey v. Rhem L. .67, Lake v. Currie LansdoWne's case Lansdowne v. Lansdowne Lane v. Green Lane v. Lord Stanhope Langham ®. Sandford 180, 334, Langston ®. Langston 46, 60, 114, Lamer v. Lamer Lathrop v. Blake Leake ». Randall : 181, Lee V. Pain 69, 138, 144, Leeds (Duke of) v. Lord Am- herst Leeming v. Sherratt Leigh V. Byron. Leigh B. Leigh Lempriere s. Valpy Lepiot V. Brown Lewis V. Llewellen 67, Lindgren v. Lindgren. .191, 313, 229, 235, 238, Lowe ». Lord Huntingtower, 151, 156, 173, Lowe V. Manners Lowe V. Thomas ENGLISH CASES CITED. 33 Lowell «. Knight 69 Lowfleldi). Stoneham 181,182 Lytton «. Lytton 97 M. Mackell v. Wintcx 161 McLcroth v. Bacon 59 Mallabar v. Mallabar 47 Manning «. Purcell 59 Mansell v. Price 180 Martin v. Drinkwater 143 Mason ®. Robinson 176 Masters ». Masters 135, 138, 141 Maude «. Maude 60 Maxwell v. Maxwell 95, 96 Maybank v. Brooks. . . 144, 181, 183 Mellisli D. Mellisb 60 Mellish. «. Vallins 46 Meredith v. Farr 81 Mestaer ■». Gillespie 279 Metham v. Duke of Devon .... Ill MitcheU v. Gard. * .141 Miller v. Travers. .110, 113, 115, 123, 139, 159, 198, 199, 300, 310, 211, 213, 339, 330, 331, 233, 335, 336, 337, 238, 339, 241, 264 Molineux v. Molineaur 208 Morgan e. Morgan 59, 333 Morell V. Fisher • . 71, 146 Morris v. Morris 60 Morrison v. Martin 147 Mortimer v. "West 67 Moser «. Piatt ....... ^ 75 Mosley v. Massey 318 Mostyn v. Mostyn 58, 70, 238 Mounsey v. Blamire.' 173 Mountain v. Bennett 379 Muckelston v. Brown 308 Murless v. Franklin 334 Murray v. Jones 180 I N. Nannock v. Horton 69, 79 Napier v. Napier 104 Neath way v. Reed 60 Newbolt V. Pryce 146 | Newburgh (Earl of) «. New- burgh 47,321,277.378 Newman v. Newman 202 Nicholls ». Osbom 180 Norman v. Morrell 135 O. Oakden v. Clifden 161 Ogle V. Morgan 59 Oldham «. Litchford 308 Oldman s. Slater 384 Ongley v. Chambers , 130 Oppenheim «. Henry 136 Orford (Earl of) ®. Churchill . . 103 Overbill's Trusts, in re. . . 67, 80, 111 Owens. Bryant 67, 81 Osborne e. Duke of Leeds 119 P. Page V. LeapingWell • . . 180 Paine v. Hall . '. 379 Parker «. Marchant 75 Parsons v. Parsons 144, . 146 Parteriche v. Powlet 44 Passmore v. Huggins 142 Penbold «. Giles 146 Pendleton v. Grant 183 Pentecost ». Ley 193 Phillips «. Barker 196 Phillips V. Chamberlain 136 Pocock 11. Bishop of Lincoln, 79,156, 161 Ponton V. Dunn 163 Pope 0. Pope 60 Powell «. Mouchett 300, 378., 279 Powys V. Mansfield , 138, 174 Pratt «. Matthew 67, 77, 103 Preedy ». Holton 144, 183 Press V. Parker 144 Price V. Page . . . .139, 154, 196, 229, 348 Pycroft «. Gregory 161 Pye, ex parte 96 Pye V. Bird 148 Q. Quennell «. Turner 75, 343 34 TABLE OF CASES. Quincey v. Quincey 12l Queen's College 11. Sutton 144 Rachel v. Careless 181 Radcliffe v. Buckley 69 Reeves ». Baker 60 Reeves v. Brymer 69, 104 Reffell V. Reflfell .-61, 280 Reman v. Hayward 135 Reynolds v. Whelan \ .144, 147, 161 Richards «. Patterson 233 Richardson «. Watson . .84, 136 146, 165, 178, 182, 200, 232, 234, 236 Rickett's Trusts, in re 69 Ricketts v. Turquand 75, Rickman 11. Carstairs 53 Ridley v. Ridley 279 Rishton v. Cobb 77, 146 Rivers' case 144 Roddy v. Fitzgerald 63, 64 Royle V. Hamilton 60, 69 Ryall v. Hannam 69, 146 Rye's settlement 97 S. Saberton 11. Skeels 58 Sandford v. Irby 97 Sanford «. Raikes. .63, 124, 125, 126, 144 Saunderson «. Jackson 208 Sayer v. Sayer 78, 173 Schloss «. Stiebel 146 Selwood V. Mildmay. . .171, 191, 194, 207, 210, 218, 229, 234, 285, 238, 239, 240, 241 Shea «. Boschetti 136 Shelboume, Countess of, v. In- chiquin 162 Shelford v. Ackland 69 Shore V. Wilson 58, 137, 142 Shortrede v. Cheek 209 Shuttleworth v. Greaves 95 Still ». Hoste 112, 198, 229 Simons v. Johnson 162 Slater v. Dangerfield 60 Small V. Allen 278, Smith V. Campbell Smith «. Lidiard Smart «. Prujeau 209, Smith «. Wilson 62, 136, Spooner's Trusts ' Stafford d. Horton Standen ». Standen 98, Stephens v. Powys Steede v. Berrier Stilhnan v. Weedon Stockdale v. Bushby Stoddart v. Nelson 59 Stone V, Greening 78, Stones V. Heurtley Storke v. Storke 179, Storrs V. Benbow Stratton v. Best Strickland v. Aldridge..47, 208, Strode v. Russell. .^77, 178, 180, Stubbs V. Sargon^ Styth ■». Monro Swaine ». Kennerley .... 66, 105, Swan «. Holmes T. Tatham v. Drummond Taylor «. Richardson 60, Terry's Will,.m re Thelusson v. Woodford Thomas d. Evans v. Thomas Thomas v. Moore Thomas v. Steward ,. Thomas «. Thomas ...84,146, 195, 230, Thompson, in re Thompson e. Hempenstall Tdwers d. Moor Towne v. Lord Wentworth .... Trimmer v. Bayne Trimleston v. Lloyd Tugwell ». Scott U. Ulrich V. Litchfield 178, ENGLISH CASES CITED. 35 V. Vernon's case , .46, 182 Vicku. Sueter 160 W. Walker t). Maiquig of Camden . . 59 Walker v. Tipping 60 Wallace v. Pomfret 96, 271, 272 Walpole (Lord) v. Earl of Cho- mondeley : 179, 288 Walter b. Makin 59 Warner v. Warner ! . . .67, 103 Weall V. Rice 96, 271 Webb «. Byng 76, 142 Webb V. Honnor 69 Welby ®. Welby 146 Wellington v. Wellington .. 97 Westlake «. Westlake 85 Whicker v. Hume 60 Whitbread v. May 72 White V. Williams 180 Whittaker v. Tatham 234, 250 Whitton V. Russell 181 Wilde's case 104, 161' Wilkinson v. Adam. . . .66, 103, 105, 106 WUkinson «. Bewicke 75 Williams «. Teale 60 Willis «. Curtois 153 Wilson D. Eden '. 71 Wilson V. O'Leary 119 Wilson D. Squire 83 Winterton v. Crawford. 60 Wolfe V. Van Nostrand 101 Woodhouslee v. Dalrymple . .108, 105 Worts, r. Cubitt 81 Wright V. Kemp 161 Wright V, Trustees of Meth. Epis. Ch. 97 Y. Yates V. Mad dan 72 Yeats «.■ Yeats 147 AMERICAN CASES CITED. A. Abercrombie «. Abererombie, 370, 377 Aldrich v. Gaskill 165 Allan V. Vanmeter 98 AUen V. Allen 117, 163, 168 Allen V. Lyons 133, 133 Andress «. Weller 277 Arthur v. Arthur 365 Aspden's Estate 249 Assay v. Hoover 251 Atkinson v. Cummms 107, 267 Auld V. Hepburn 106 Avery v. Chappel 245 B. Bartlett v. King 187 Beall v. Mann 379 Bell V. Bruen 108, 133 Betts V. Jackson 99, 169 Bond V. Blenkinheard 130 Bottomley ®. United' States .... 108 Bradley v. Bradley. . . .25(f, 267, 373 Bradley v. Washington 107 Brearly v. Brearly 103, 133 Brown v. Brown 63 Brown v. Saltonstall 133 Brown v. Slater 132 Brownfleld v. Brownfield 50, 110 Buck V. Pike 274 Bunner 4). Storm 101 C. Cseaa.1 v. Chew 267, 277 Calvin v. Warford 278 Carter «. Balfour 187 Canfield v. Bostwick 249, 276 Cass V. Ross 348 Cawthom v. Haynes 250 Chappell n. Avery 141, 267 Comstock ». Hadlyme.266, 268, 280 ConoUy v. Paroon 108 Cresson's App Ill Crocker v. Crocker 118 Cromer v. Pinckney . .165, 346, 251 D. Davis V. Calvert 279 Den V. McMurtrie 187 Dey V. Dey 120, 131 Domestic and Foreign Miss. Soc. App 246 ■Doyal V. Smith 99 Drew V. Drew 187 Duckworth's Exrs. v. Buller . . 375 Dugan,®. HoUins 373 Duffield V. Robeson 379 Dunn V. Gaines 108 E. Eaton V. Benton 119 Ellis V. Essex Merrimac Bridge.. 130 Ennis v. Smith 163 Fr Farm. &Mech. Bank®. Day 138 Faro V. Maesteller 106 Parrar v. Ayres 350, 267 Farrar v. Stackpool^ 133 Fawcett v. Jones 377 Ferguson «. Mason 165 Fish V. Hubbard 52, 243 38 TABLE OP CASES. Pouke «. Kemp . .132, 167, 244, 249 Fountain v. Brown . . .' 279 G. Gladding v. Yapp 275 Geer v. Winds 270, 277 Gilpins V. Consegua 107 Goble V. Grant 280 Goode B. Goode 247 Grass v. Sneed 244 Gray v. Harper 107, 138 Gregory v. CowgiU 166 Gunnaway v. Shapley 165 H. Hackensmith v, Slusber Ill HaU D.Hall 279 Hammond v. Bidgeley 187 Hand v. Hofifman 255 Harrison's Will ; 280 Harrison v, Morton 267, 277 Hart V. Marks 100 Heam v. Ross 99 Herrick v. Noble 249 Hill «. Bowman 187 Holton V. White 110 Hone V. Kent 164 Hornby, ex paHe 117, 167, 248 Hunt V. Adams 49 Hunt V. Eousmanier 107 Hyatt V. Pugsley 265, 267 J. Jackson v. Payne 101 Jackson v. SUl 51, 118, 163, 267 Janey «. Latone 187 Jones V. Johnson 267 Jones V. McKee 47, 274 Johnson v. Johnson 50, 101 Judge V. Williams 249 « ' K. Keene v. Meade 107 Kemmill v. Wilson ,...;... 106 Kurtz V. Hibner 51 L. Lamb ii. Lamb 118 Langdon v. Langdon 279 Lathrop v. Blake ' 102 Leigh V. Savidge. 99 Limbray v. Gurr 187 Livermore v. Aldrich 271 Lorieux v. Keller 249 Loring v. Marsh , 265 Lowe V. Williamson 280 M. McAllister «. Tate 249 McDermott v. "United States In- ■ surance Company 187 McMahon ■». Ryan 279 McCuUoch V. Girard 106 Mann v. Mann 51, 118, 163 Massaker v. Massaker 118 Maybur;y v. Brien 108 Meade «. Keane 107 Miller ®. Miller 280 Minot V. Boston Asylum 187 Mowatt v. Carow 61 N. Nenthway ». Ham 187 Nolan V. Bolton 249 Osborne v. Vamey 166, 250 P. Pell®. Ball '.. 110 Peisch V. Dickson 107 Perkins v. Jewett 163 Petway V. Powell 128 Piercy v. Piercy 187 Pomeroy v. Manin 107 Pools. Pool 9,9 Powell V. Manson & Brinf. Manf xCo 274 Pritchard ». Hicks 245 R. Reno V. Davis 117 Roberts v. Trawick 250 Rogers v. Wheeler 170, 243 RooseTelt v. Thurman 61 AMBEIOAir CASES CITED. 39 Kothmaler v. Myers 187, 265 Eutlamd & Burlington R. R. Co. V. Crocker 108 S. Salmon v. Stnyvesant.141, 268, 280 Salmon Falls Co. v. Goddaj>d . . 107 Sargent v. Towns ,121, 163 Selden «. Williams 138 Shearman v. Angel 166, 249 Sherwood v. Sherwood 61 Small V. Small 279 Smith «. Bell 163, 167 Smith V. Fenner 278 Smith V. Smith 169, 187, 249 Stackpole v. Arnold 49 Start v. Cannady 273 Stokely v. Gordon 252 Storer v. Freeman 255 Storke «, Storke 275 Susquehanna Bridge & Bank. Co. B. Evans 108 Sutton V. Sutton , 165 Sutton, First Parish in, «. Cole. 187 Swoope's Appeal 272 T. Tamer «. Tamer 166 Tayloe v. Riggs 107 Thomas ®. Capps 271 Thomas ». Stevens .108, 251 Thomason «. Driskel 279 Tifft«. Porter 128 Tole V. Hardy 51, 118, 163 Tomkins «. Tomkins 279 Tovmsend «. Downer 187 Trippe v. Frazier 187 Troy Iron & Nail Factory «. Coming 106 Trustees «. Peaslee 108, 187, 246 Tucker v. Seaman's Aid Society, .248, 254, 267 TJ. United States v. Cantrell 52 V. Vernon v. Henry 250 W. "Wadsworth v. Ruggles 133 Wagner's Appeal 164, 249 Walston V. White 51 Warner v. Brinton 168, 167 Warren v. Wheeler 49 Wasthoff V. Dracourt 244 Waters v. Howard 174 Watkins v. Flora 244 Weatherhead ». Baskerville 166 Webb V. Webb 245 Webster ». Hodgkins 112 Weston V. Foster 165, 251 Wheeler v. Smith 187 Whelden v. Whelden 110 Whitlock V. Wardlow , 263 WUkins V. AUen 163 Williams v. Crary .,. 119 Williams ». Fitch 279 Winkley ®. Kaime 110, 123 Williams ». Crary 373 Winder e. Smith 187 Winthrop v. Union Insurance Co 141 Wolfe 1). Van Nostrand 101 Woods B.Woods 187 Wootton V. Redd 130 Worman v. Teagarden 51 Worthington v. Hylyer .- . 52 Wright V. Trustees of Meth. Episcop. Ch 97 ERRATA. PAET I. Page 64, line 24,/oj' "latter" read "former." PAUT n. Page 19, line 11, for " § 18 " read " § 8." " 1 60, line 3, for " g 2 " read " § 1." " 207, line SO, /or '•special" read "only." " " line 30, /or "cannot" reo(i "may."' EXTEINSIC EVIDENCE IN AID OF THE INTERPRETATION OE WILLS. [" I agree in the necessity of adhering to general rules in the construction of Wills and other instruments. It is expedient that such rules should be held sacred ; because they -withdraw the decision from the discretion of the individual judge, and prevent him from pursuing his own views of eafh particular case. And there is less inconvenience in the hardship which may sometimes be occa- sioned by a strict adherence to the rule, than in the confusion whiqh must follow on departing from it." — Per Tindel, 0. J., 1 Mag. 279.] 1. The Statute of Fratids, whicli regulates the dis- position of property loj will, requires (except in certain cases specified in the statute) that the will shall be in writing.^ ' The statute of Frauds, 39 Oar. 11. c: 3, enacts— Sect. 5. " That; from and after the said four-and-twentieth day of June, all devises and bequests of any lands or tenements, devisable either by force of the Statute of Wills, or by this Statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in hie presence and by his express directions, and shall be attested and subscribed' in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect." Sec. 19. " And for the prevention of fraudulent praetices in setting up nuncupative wills, which have been the occasion of much perjury : Be it enacted by the authority aforesaid, that, from and after the aforesaid four- and-twentieth day of June, no nuncupative wiU shall be good, vsfhere the estate thereby bequeathed shall exceed the value of thirty pound's^ that is^ 4 42 INTEODUCTOKY 2. The object of tlie present work is to answer an important practical question, to wliicli this enactment gives rise, namely — Under what restrictions is the ad- mission of extrinsic evidence, in aid of the exposition of a will, consistent with the provisions of a statute, which makes a writing indispensable to 'the purpose for which the instrument was made ? ^ 3. The preceding paragraph has been objected to, as not accurately" raising the question which the title of this volume professes to examine. It has been urged, Bot prored by the oaths of three witnesses (at the least), that were present at the making thereof; nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, bear witness that such was his will or to that effect ; nor unless such nuncupative will^were made in the time of the last sickness of the deceasd, and in the house of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the mak- ing of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling." The repealing clause of the 7 Will. IV & 1 Vict. cap. 36, enacts, inter alia, that an Act passed in the thirty-second year of the reign of King Henry the Eighth, intituled ' The Act of Wills, Wards, and Primer Seis- ins,' whereby a man. may devise two parts of his lands, and also so much lof an Act passed in the twenty-ninth year of the reign of King Charles the Second, intituled ' An Act for the Prevention of Frauds and.Pequries,' . as relates to devises or bequests of lands or tenements, or to the revocation for alteration of any devise in writing of any lands, tenements, or heredit- ^•aments, or any clause thereof, or-to the devise of any estate ^ar autre vie, or to any such estate being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chat- tels or personal estate, or any clause, devise, or bequest therein, shaU be repealed, except so far as the two last-mentioned Acts, or either of them respectively, relate to any wills or estates pur autre vie to which the repeal- ing Act does not extend. The latter Act (sec. 9) then provides, generally, that no will shall be valid unless it shall be in writing, and unless its exe- cution be attended by the formalities thereinafter prescribed. ' The Statute pf Wills, 33 Hen. VHI, c. 1, had, to a certain extent, raised the same question at an earlier period. As the Statute of Frauds embraces property of all descriptions, the former statute may well be passed over without affecting the substantial question which is discussed in the following pages. [See preceding note.] OBSERVATIONS. 43 " that tlie practice of admitting extrinsic evidence to in- terpret wills, liad obtained at common law before the existence of tlie statute, and that this practice was prop- erly continued after the statute ; for that it was not the intention of the framers of the statute to alter or abridge any legitimate or established modes of expounding a written instrument, but merely to substitute a written for a nuncupative will ; that the statute made a writing indispensable in certain cases, in which a writing was previously unnecessary, but left untouched the means of expounding the writing which it required; and that courts of law therefore must, notwithstanding the stat- ute, be at liberty still to avail themselves of the aid of extrinsic evidence, to the fall extent to which authority had, before the statute, established its admissibility." ^ If the reasoning upon which the objection is founded were admitted to be correct, the author is not prepared to admit that the objection itself would be so. The ob- jection points only at the effect or consequences of the statute, and does not displace the proposition in the text, that the statute is the source from which those effects or consequences flow." 4. The restrictions under which extrinsic evidence was by the common law (before the statute) admissible, in aid of the exposition of a written instrument, in cases in which the law did not require a writing, will of course ' This point will be again observed upon in a later page, infra, pi. 154. ' Whether the learned author' has conclusively refuted the above objec- tion, the reader must decide. It is no doubt true that the statute gave rise to the important practical question stated in the author's second para- graph ; but it seems equally clear that this question is not coextensive with that to which the title of the volume professes to apply. The latter question existed previously to, and independently of, the Statute of Frauds, although undoubtedly changed in character, as well as in practical im- portance, by the various enactments which liave since rendered writing essential to the validity of a testamentary instrument. 44 INTKODUCTOET ferm a limit beyond wMcli extrinsic evidence cannot be admitted to assist in expounding a writing which a stat- ute makes indispensable. But a question may suggest itself, whether the construction of an instrument, which is made necessary by a statute, may not be subject to stricter rules than the common- law alone would im- pose.^ 5. In this view of the case it might, perhaps, appear that the more logical course of inquiry would be, first, to determine the state of the law before the statute, and then to ascertain whether the statute had to any and what extent affected the rules of law which it found in operation at the time it .was passed. An attentive con- sideration of the subject, however, and of the author- ities which apply to it, will show that such a course of investigation is uncalled for, and that it would embar- rass rather than assist the inquiry. By the common law* (befor^e the statute), parol evidence' was inadmissi- ble to contradict, vary, or add to a written instrument. As this rule, however, was founded on a principle of convenience only, it was holden, before the statute, that parol evidence was, in ceri;ain cases, admissible to de- termine \h.& person or thing intended, where tlie descrip- tion in the instrwment was insufficient for thatpwpose — as in a devise to A. B., where there were two persons of the same name ; or a devise of the manor of Dale, where the testator had two manors of that name. North Dale and South Dale. In which cases parol evidence of wit- nesses who spoke to the testator's intention, was held admissible to determine which of the two persons, named respectively A. B., and which of the manors of Dale, ' Infra, pi. 154. ^ 1 Phil, on Evid. 648-561, 7tli ed. ; [2 ib. 339 et seq. 10th ed.;] Parter- iche v. Powlet, "3 Atk. 388 ; and see Prop. VI, infra, pi. 105 ; Goss «. Lord Nugent, 5 B. & Adol. 58. OBSERVATIONS. 45 was intended "by the testator.^ And from the cases cited in a subsequent page,^ it will he seen that where the identity of the person or thinff intended by a testator has been the only point in dispute, and the description in the will has been insufficient to determine it, courts of law, since the statute, have in like manner, in certain special cases, admitted the evidence of witnesses who spoke to the testator's intention — to make certain the person or thing intended by the testator. 6. Whether the admission of extrinsic evidence to make certain the person or thing intended, where the description of the will is insufficient for the purpose, can, upon principle, be reconciled with the provisions of the statute, in all the cases in, which it appears to have been admitted, is a point which, for the present, may be left in suspense. It is sufficient in this place to observe, that, notwithstanding the cases in which parol evidence of the nature just adverted to has been held admissible, the courts had uniformly professed to be governed by an admitted principle — that the judgment of a court ^ in expounding a will should be simply deda/ratory of what is in the instrument. This was the general rule at common la^Y before the statute; and if the statute has not strengthened its obligations, it certainly has not relaxed, them.'' [The exclusion of parol evidence in aid of the construction of wills is founded on the principle that " otherwise it were great inconvenience that not any may know, by the written ' Infra, pi. 136. ^ Infra, pi. 139 et seq. ' It has not been thought necessary or useful to distinguish the prov- inces of the court and jury. Each, within its own province, is in principle bound by the rules which it is the object of these pages to elucidate. In courts of equity the judge performs the office of both. ' See Prop. VI, infra. 46 INTEODUOTORT words of the will, what construction to make, if it might be controlled by collateral averment, out of the will." ^ The rules of equity are the same as those of law in respect to the admis- sibility of parol to aid in the construction of a will if there is no collateral equity or fraud in question.' [Sir James Wigram was dpubtless right in supposing that the rules relating to the admissibility of extrinsic evidence in aid of the interpretation of a will, are different in England from those which apply to other written documents-, yet the vice-chancellor did not defend his position on the only ground on which it was tenable. In those States where no formalities, except a writing, are required for a will, extrinsic evidence is admissible precisely as if the question related to the construction of a document inter vivos. "But where, as in the State of I^ew York, attesta- tion and publication are necessary for the making of a will, all collateral written evidence is not more admissible than if it was merely oral, although any number of documents is sometimes admissible to interpret a written contract inter vivos. Judge Eedfield,^ however, lays down, with scarcely any qualification, the position that wills and contracts are governed by the same rules in respect to parol evidence. The judge probably meant by parol merely oral testimony, though even oral evidence is ad- missible in equity as regards accident or mistake in the ease of a written contract, but not in tlie case of a will.* The judges statement, however, is to be considered as so far referring merely to evidence at law. As regards public policy, it seems that in America, the wills' acts are construed jusi as other statutes. [Sir James Wigram's opinion, that a statutory is stronger than a common law rule, is not bprne out by the adjudication in Mellish v. Yallins.' In that case, a primary liability imposed by statute on mortgaged land to satisfy the mortgage debt, was held to be more-easily evaded than the primary (or rather sole), liability of personalty at common law. But, there is cer- tainly reason to contend that a statute founded on principles of • ' The Lord Cheney's Case, 5 Co. 68 b. ; Vernon's Case, 4 Co. 1 ; 4. " See 2 Vera. 366 ; 1 L'd Raym, 438, in note. = 1 vol. 463. ■* Newburgh v. Newburgh, 5 Mad. 364 ; Langston v. Langston, 8 Bligt. N. 8.167. '3Jo. &H. 194. OBSERVATIONS. 47 public policy will be more strictly enforced than an ordinary - statute or rule of common law. [Wills, then, are interpreted like other written documents,' with the aid of extrinsic evidence, in cases : — [1. Where the evidence is adduced to. show that the whole alleged will, or a part thereof, is void in law ; or 2, lias been forged, oi; 3, otherwise fraudulently obtained; or 4, to rfebut the presumption of a resulting trust ; or 6, to identify the sub- ject or object of gift : ^ [2. Where the conscience of the heir or devisee is sought to be charged, in a suit for specific performance, on the ground of having obtained from the testator a benefit on the faith of a promise which is the foundation of the suit : ^ [3. Wiiere an extrinsic document is incorporated in the will by reference. Yerha relata inesse videntur : [4. Wills, so far as they contain executory limitations,^ are construed like articles inter vivos. But all wills are not execu- tory ; and so far as any limitation or trust is executed in terras, it will be so construed. [Extrinsic evidence is admissible to prove that the will is either wholly or partially illeg'al and void, as having been ob- tained through fraud or undue influence, or as being contrary to public policy. In short, any evidence admissible to defeat a written contract, on the ground of fraud qr illegalitj'-, is equally receivable in the case of a will. [Wills are not interpreted with the aid of exti'insic evidence admissible to help the construction of other documents : — [1. Where the collateral evidence tendered is a document not executed according to the law of wills and not referred to in the will : [2. Parol evidence of accident or mistake will cause a will or part thereof to be set aside, but not' rectified as in similar cases inter vivos. See Earl of Newburgh v. Countess of New- burgh;^ Hippesley v. Homer.* For, volunteers under wills have no equity whereon to found a suit for specific performance. ' Mallabar v. Mallabar, Cas. Temp. Talb. 79 ; see Jones v. McKee, 3 Barr. (Penn.) 496. ^ Strickland v. Aldridge, 9 Ves. 519 ; see Drakeford ». Wilkes, 3 Atk. 539. = 5 Madd. 364. * Turn. & R. 48?i. 48 IKTBODUCTOBY [3. A discharge of a written agreement may be proved by parol. But a revocation of a will, as distijnguished from the satisfaction or ademption of the gifts comprised in the instru- ment, can only be established by the statutory evidence. , [Documents not referred to in the will are admissible only on the same footing as oral testimony in those States which require a will to bei executed with any solemnity. This was de- cided in the early case of Bertie v. Falkland,^ where papers and letters of the testator were tendered in aid of the construc- tion, but were rejected by the court. ISemble, in America, documents referred to either in a will or instrument inter vivos, need not be described as carefully as is required by the rule in Boydell v. Drummond.^ [A will is construed with the aid of parol evidence in respect to " equities " of a legal or presumptive nature, bnt not where the equity is one of hondjide part performance, or springs from other mutter in pais ,• although even such a practical equity, as distinguished from a legal or presumptive inference against the letter of the will, can be enforced if the case involves fraud. [As a party to a deed is estopped by recitals therein, evi- dence is thus shut out which is admissible under a will in certain cases of ambiguous description. This is accidental, how- ever, in those particular cases, and is not connected in prin- ciple with any general rule respecting the admissibility or use of parol evidence. Certain statutes also, like the navigation acts, being founded on principles of public policy, are more rigidly enforced than, the wills' acts, with respect to the point under inquiry. Even fraud is not admissible in evidence when the title to a registered ship is in question, in the case of an unregistered transfer.^ [The statutes requiring wills to be in writing thereby ex- clude parol testimony of the testator's intention so far as the evidence tendered would operate either to contradict, revoke, or annul the writing,* or even explain it, except so far as such explanation is applicable in the case of any written document. ' 1 Salk. 331. See Bennett v. Davis, 3 P. Wms. 316, 318. " 11 East, 141. = See Chapman v. Calis, 9 C. & B. N. S. 769. * Kinsey ». Ehem, 3 Iredell, 192. OBSERVATIONS. , , 49 The only question respecting the admissibility of such testi- mony arises when it is tendered not merely for the purpose of supporting the testator's written dispositions in their primary, but ut res magis valeat in some other sense. The construc- tion of wills by the aid of oral testimony is always allow- able in support ot the primary meaning of the text, according to the general rule applicable to the admissibility of such tes- timony in aid of written evidence. Tliis branch of testamentary law, therefore, is a subdivision of a more general province of jurisprudence. The subject thus naturally divides itself into two heads. The first relates to the general rules respecting the application of parol to written evidence in general. The second head comprises the special features impressed on testa- mentary parol evidence by the statutes relating to the making and proof of wills. As regards the general law of oral evidence, it is strictly applicable to wills, provided that we confine our review to evidence at law as distinguished from equity. For all beneficiaries under wills are volunteers, and as such can have no equity. It -is strange, therefore, that cases arising under deeds are not more largely referred to in contentions under wills, since, with the distinctions just referred to, they are most accurately in point. [The law holds out a bounty on the reducing of contracts to writing by precluding the adduction of parol evidence in such cases. If extrinsic evidence was freely admitted, the utility of a written instrument would be greatly curtailed, while the defects and errors of memory would be substituted for the permanent litera soripta. [The rule excluding parol evidence applies to simple, equally as to special or sealed, contracts.'^ In neither case are any words to be added to the document,^ and where the language used has a settled legal construction, or there is a settled legal presumption with respect to the time when any act referred to in the document is to be done, parol evidence is not admissible to show that the parties had a different intention.^ Construc- tion, or legal interpretation, is thus confined to the light of the context, so far as the dofument itself can afford light. ^ ' Stackpole v. Arnold, 11 Mass. 31 ; Hunt v. Adams, 7 Mass. 533. ^ 1 Greenleaf on Ev. § 277. ', Warren ii. Wheeler, 8 Met. 97. 50 INTKODtrCTOEY . [Greenleaf considers that the rule exchides " all evidence of intention, whether direct or inferential," even in the case of a contract, and that the court merely puts itself in the position of the contracting parties.^ But, of course, this is with the view of inferring the intention of the parties. As regards con- tracts, however, subsequent declarations fall projierly under the head of admissions, and are important in Chancery as affecting the evidence of the equities of the transaction. [The principle on which parol evidence is at all admitted in aid of the construction appears to be necessity, and necessitas non hahet legem. It is impossible that any document could contain in extenso a description of all the circumstances to which it will relate. To require such details would be to render documentary evidence wholly useless. The statements to be comprised in a document, therefore, are only pairtifcular matters of fact which cannot be presumed to be generally knowil. Bat neither a general law of the land, nor facts, such as foreign laws, of which the court will take cognizance on special proof, general and local customs, or even individual usages, as pet or nick names, which are governed by no genera;! rule of law, need be referred to in a document or will. They are matters of every day dealing and notoriety, to admit parol evidence of which seems safe, easy, and unlikely to tempt to perjury ; since opposing testimony could then be adduced. As the impos- sibility of comprising all particulars in a document has led to their being proved, if of a general nature, by parol, so the .same necessity renders evidence of intention admissible to identify the subject or object of a gift. Otherwise, identification would in many eases be impossible. [The American law respecting the admissibility of parol testamentary evidence is generally considered to differ widely from that of England, and to admit of parol evidence of the testator's circumstances in almost every case of ambiguity, both latent and patent,^ while it conforms to the law of Eng- land in confining extrinsic evidence of the testator's intention to cases of latent ambiguity.' ' Greenleaf on Ev. § 383ffi. ^ Brownfleld v. Brownfield, 30 Penn. St. 55 ; Johnson v. Johnson, 33 Ala. 637. ' lb. OBSEKVATIONS. 51 [There is no general law throughout the United States, how- ever, established either by statute or construction, as to the extent to which parol testamentary evidence is admissible. In some States the English rules will be followed in the main.^ But, in most of the States, undoubtedly, extrinsic evidence of the testator's circumstances, as distinguished from his intention, will be admitted in aid of the construction of any expression left ambiguous by the context. In fact, so late as Lord Camp- bell's time, we find, even in England, lawyers of the highest rank asserting that they would examine the condition of all the testator's property in aid of an ambiguous will. The American rule is, therefore, likely to terminate ultimately at the goal where the analogous English rule is now definitively fixed. f [In ]S"ew York,^ the courts rigidly adhere to the English ^ rules, and admit no extrinsic evidence, except to explain a 'latent ambiguity. In Tole v. Hardy,' the state of the testator's property was not allowed to be shown in order to prove his intention to charge a legacy on land exclusively. In Delaware, however, it has been decided, in Sutton «. Sutton,^ that extrinsic evidence may, in all cases, be received of the age of the testa- tor, his health, circumstances, affections, and of the persons around him at the time of his making the will. [In Ohio, also, the strict rules of construction prevail ^ with respect to the exclusion of parol evidence, except in cases falling under propositions III, Y, and YII, as in England. [In Maryland, the strict rules of construction prevail, and no parol evidence is admitted, except as in England.* [In the subsequent pages a reference to parol evidence al- ludes to testimony adduced to aid, or rather alter, the construc- tion and relating to the testator's circumstances, but not to liis intention, except where that is distinctly expressed.] • Kurtz «. Hibner, Sup. Ct. HI. 1871. " Mann v. Mann, 1 Johns. Ch. 331 ; s. c. affirmed 14 Johns. 1 ; Jackson V. SiU, 11 Johns. 301. ' 5 Harring. 459. ' 6 Conn. 333. " Worman v. Teagarden, 3 Ohio N. S. 880. " "Walston V. White, 5 Md. 297. 52 INTEODUCTOEY 7. To return, theft, to the question stated at tlie outset: Under what restrictions is the admission of extrinsic evidence, in aid of the exposition of a will, consistent with the provisions of the Statute of Frauds ? 8. The answer to this question is usually given in the terms of the common maxim which distinguishes ambiguities into two kinds, latent and patent — admit- ting extrinsic evidence in the former case, and excluding it in the latter. As the maxim itself, however, requires much explanation, it has been thought naost convenient to exclude it altogether as a guide in the present in- quiry, and to make it the subject of a separate exam- ination, in confirmation of the principles which, in the following pages, are submitted to the consideration of _ the reader. [Lord Bacon's illustrations of patent ambiguities relate to the conveying or " willing " element, and not to the -subject or object of the gift.^ Such patent ambiguities render the passages void.^ [It is, perhaps, to be regretted that Sir James "Wigram did not keep the distinction between the two kinds of ambiguities more before him, as his 'great analytical and generalizing powers would have, doubtless, elucidated the old distinctions with new philosophic comments and illustrations of no ordinary value. These, however, now are given by him only with refer- ence to his own seven propositions.] 9. The question just suggested has become much perplexed by a want of proper attention, on the part both of the courts and of text writers, to the different pwrposes to which the admissibility of extrinsic evi- dence in aid of the exposition of wills may be applied, and to the different natwre of the evidence which ' See Fish ». Hubbard, 31 Wend. 653. " Wortliington «. Hylyer, 4 Mass. 305 ; United States ». Cantrill, 4 Cranch, 167. OBSERVATIONS. 53 (with reference to sucli different purposes) parties have tendered for admission. It is said (and correctly), that the statute, "by requiring a will to be in writing, precludes a court of law from ascribing to a testator any intention which his written will does not express, and, in effect, makes the writing the only legitimate evidence of the ^testator's intention. ("No will is within the statut^but that which is in writing; which is as much as to say, that all that is effectual and to the purpose must be in writing, without seeking aid of words not written."^ At the same time, however, courts of law, though precluded from ascribing to a testator any intention not expressed in his wiU, ad- mit their obligation to give effect to every intention which the will properly expounded contains, j The an- swer, therefore, to the question above proposed — en- joined as well as sanctioned by the general principle above mentioned — must be, that any evidence is ad- missible which, in its nature and effect, simply explains what the testator lias written ; but no evidence can be admissible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written. In other words, the question in ex- pounding a will is not — What the testator meant ? as distinguished from — What his words express ? but simply — What is the meaning of his words ? ^ And extrinsic evidence, in aid of the exposition of his will, ' Brett V. Rigden, Plow. 345 : and see 3 Vem. 625 ; Hobart, -33 ; and see Hiscocks ». Hiscocks, infra, pi. 183. '. In Doe d. Gwillim v. Gwillim, 5 B. & Add. 129, Parke, J., said : " In expounding a will, flie court is to ascertain, not wtat the testator actually intended, as contradistinguished irom what Ms words ^xpresi, but what is the meaning of the words lie has ttsed." And in Rickman v. Carstairs, 5 B. & Adol. 668, Lord Denman, 0. J., said : " The question in this and other cases of construction of written instruments is, not what was the in- tention of the parties, but what is the meaning of the words they haye 54 INTEODUCTOEY must be admissible or iBadmissible witL. reference to its bearing upon the issue wMcli this question raises. 10. The distinction involved in the last observation between evidence which is ancillary only to a right linderstanding of the words to which it is applied, and which is therefore simply explanatory of the words themselves, — and evidence which is applied to prove intention itself as an independent fact, is broad and palpable; — and as this distinction is essential to a right understanding of the subject, and will frequently be referred to in the following pages, it may be con- venient to adopt the expression, expkmatory evidence^ to describe such extrinsic evidence as is strictly of the former kind ; and to adopt the expression, evidence to prove intention, to describe the latter species of evi- dence. The expressions do not, perhaps, satisfactorily explain themselves ; but, with the aid of the preceding observations, the distinction intended to be taken will be understood. 11. It should be farther observed, that it is not, as an insulated question, that the admissibility of extrinsic evidence in aid of the exposition of wiUs, can properly used ?" See also, per Littledale, 3., in Doe d. Templeman v. Martin, 4 B. & Add. 783 ; andi per Parke, J., in S. C. 1 Nev. & Mann. 524. [" The expression, that the rule of construction is to be the intention of the testator, is apt to lead into error, because the word is capable of being understood in two senses, namely, as descriptive of that which the testator- intended to do, and of that which is the meaning of the words which he has used. The will must be in writing ; and the only question is, what is the meaning of the words used in that writing ? ' To ascertain which, every part of it must be considered, with the help of those sur- rounding circumstances, which are admissible in evidence to explain the words, ^nd put the court as nearly as possible in the situation of the writer of the instrument, according to the principle laid down in the excellent work of Sir James Wigram on that subject." — Per Lord Wensleydale, in Grey e. Pearson, 6 Ho. Lo. Cas. 106.] ANALYSIS 01- THE SUBJECT. 55 be considered. The subject is part only — and that a subordinate one — of a general system of rules, wMcli Courts of law have established for the correct inter- pretation of wills ; and the true nature and bearings of this particular question can be properly understood only when viewed in connection with the entire system of which it forms a part. 12. The Seveit Peopositions following, applicable to the exposition of wills, and embodying (in its proper place) the particular subject of the present investiga- tion, are submitted to the consideration of the reader, as the results both of principle and authority. 13. I. A testator is always presumed to use the , words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a dif- ferent sense-; in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.^ 14. n. Where there is nothing in the context of a will, from which it is apparent, that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic cvr.cumstances^ it is an inflexible rule of con- struction, that the words of the will shall be interpreted . ' Upon this and every oth,er point connected with the interpretation of wills, the reader will find the fullest information in Mr. Jarman's valuable edition of Powell on Devises. [ To the second edition of this work, edited by Messrs. Wolstenholme and Vincent, the editor takes this opportunity of acknowledging his own repeated obligations.] 56 INTKODUCTOEY. in their strict and primary sense, and in no other, althougli they may Ibe capable of some' 'popular or secondary interpretation, and although the most con- clusive evidence of intention to use them in such popular or secondary sense be tendered. 15. ni. Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which- he has expressed himself in any- other than their strict and primary sense, but his words, so interpreted, are insensible with r^erence to extrinsic circumstances, a Court of law may look into the ex- trinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these cir- cumstances, they are capable. 16. IV. Where the characters in which a will is written are, difficult to be deciphered, or the language of the will is not understood by the Court, the evidence of persons skilled in deciphering writing, or who under- , stand the language in which the will is written, is admissible to declare what the characters are, or to inform the Court of the proper meaning of the words. 17. V. For the purpose of determining the object of a testator's botmty, or the subject of disposition, or the quantity of interest intended tg be given by his will, a Court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs ; for the purpose of enabling the Court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his wUl. ANALYSIS OF THE SUBJECT. 57 The same (it is conceived) is true of every other disputed point, respecting wHcli it can be shown that a knowledge of extrinsic facts can, in any way, he made ancillary to the right interpretatibn of ^ a testator's words. 18. VI. Where the words of a will, aided by evi- dence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases — see Proposi- tion Vn.) will be void for uncertainty. 19. vn. Notwithstanding the rule of law, which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning — Courts of law, in certain special cases, admit extrinsic evidence of intention to malse certain the- person or thing in- tended, where the description in the will is insufficient for the purpose. These cases may be thus defined: where the object of a testator's bounty, or the subject of disposition (i. e. the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator. 20. A separate examination of each of these Pro- positions will now be gone into. PEOPOSITION I. A testator is always prestmied to use the words in which he expresses himself, according to their strict a/ad primary acceptation, wnless, from the context of the will, it appears that he has used them in a different sense, in which case the sense in which he thus appea/rs to have used them, will he the sense in which they are to he construed} 21. The first brancli" of this proposition will be fa- miliar to the learned reader, and can scarcely require either explanation or authority to suppoft it.^ • [In Hicks «. Sallitt, 3 De G. M. & Gor. 783 ; 18 Jur. 915 ; Lord Gran- worth, C., said : — " When a testator uses a word which has a well-known ordinary acceptation, it must appear very certain that he has said on the face of the will that he uses it in another sense, before the ordinary sense can be interfered with. ... In order to alter the meaning of a word, it must appear, not that the testator might have meant it in a different sense, but that he must have meant' it in a different sense ; and this can only be shown by pointing' out some inconsistency in different parts of the wUl, or a positive statement of such being the sense intended, or a rediietio ad aisurdum by not taking the word in a qualified sense." See also per Sir James Wigram, V. C., in Ford ■». Ford, 6 Hare, 490 ; per Lord Eldon in Church ii. Mundy, 15 Ves. 40&; per Lord Brougham in Doe d. Winter v. Perratt," 6 Mann. & Gr. 357 ; per Lord Erskine, J., in Shore e. Wilson, 9 CI. & Pin. 513 ; per Lord Wensleydale, in Grey ®. Pearson, 6 Ho. Lo. Cas. 106 ; and per Sir J. L. Knight Bruce, in Key s. Key, 4 De G. M. & Gor. 84 ; and in Lowe «. Thomas, 5 De G. M. & Gor. 316.] " 1 Douglas, 341; 3 Ball & B. 304; Id. 506; 5 B. & Ores. 77, 83; Crowder v. Stone, 3 Russ. 333 ; [Shore «. Wilson, 9 CI. & Fin. 355 ;- Mostyn ». Mostyn, 5 Ho. Lo. Cas. 155 ; Douglas ®. Fellowes, Kay, 114 ; Saberton V. Skeels, 1 Russ. & Myl. 589. See as to the strict and piimary meaning TEOPOSITION I. 59 [The dictum of Lord Cranworth, in Hicks v. Salitt,^ is of little use as a practical guide. For, almost every word has several different primary significations, while the legal sense is always considered a primary one. But, this legal sense al- most invariably differs from the popular meaning.* Prior to the case of Grant v. Grant, the primary meaning of the word " nephew " was often modified and enlarged by the context, but not by parol evidence.] 22. The second branch of the proposition may be as briefly disposed of. For where it appears upon the face of a will, that the testator has used particular words in this or that particular sense, no adequate reason could possibly be assigned for rejecting the sense (however inaccurate) in which the testator him- self thus declares he has used them.® In such cases, of the word '' portrait," The Duke of Leeds v. Lord Amherst, 13 Sim. 459 ; s. c. on appeal, 9 Jur. 359 ; "jewels," Brook v. Warwick, 2 De G-. & Sm. 439 ; Cavendish e. Cavendish, 1 Bro. C. C. 467 ; " relations," Green v. Howard, 1 Bro. C. C. 31 ; " cousins," Stoddart v. Nelson, 6 De G. M. & Gor. 68 ; see s. c. 4 W. E. 109; "family," Be Terry's Will, 19 Beav. 580 ; Gregory «. Smith, 9 Hare, 708 ; " domestic," Ogle v. Morgan, 1 De G. M. & Gor. 359 ; " devise," Morgan v. Morgan, 4 De G. & Sm; 173 ; " money," Lamer v. Lamer, 8 Drew, 704 ; Manning v. Purcell, 7 De G. M. & Gor. 55 ; " effects," Doe d. Haw. ■». Earles, 15 M. & W. 450 ; etc., etc.] • 3 De G. M. & G. 783. = See Grant v. Grant, 39 L. J. N. S. 372: ^ [The right of every testator thus to act as his V)wn interpreter migh^ be illustrated by examples almost without! end. Thus, in deference to the context, the word "money" has been held to pass stock in the funds, Dowson V. Gaskoin, 3 Kee. 14 ; a husband has been held to be one of the objects of a power expressed to be in favor of his wife " and her family,'' M'Leroth v. Bacon, 5 Ves. 159 ; "descendants" have been permitted to take as "representatives," Styth v. Monro, 6 Sim. 49 ; and, "next of kin " as " legal representatives," Walter ». Makin, 6 Sim. 148 ; Walker v. Mar- quis of Camden, 16 Sim. 329 ; words of limitation have been treated as words of purchase, Bagshaw v. Spencer, 2 Atk. 580 ; and the use of the words "joint tenants" held consistent with the creation of a tenancy in common. Booth u. Alington, (V. C. S.) 5 W. R. 811 ; " all " has been read " any," Doe d. Gallini v. Gallini, 5 Bam. cfc Ad. 631, and " fifth schedule " substituted for " fourth schedule," Hart v. Tulk, 2 De G. M. & Gor. 300 ; 60 PROPOSITION I. therefore, a departure from the strict and primary sense df the words, in favor of the testators's intention, is properly, and indeed necessarily, permitted.^ the word "issue" has been restricted so as to mean "children" only, Pope «. Pope, 14 Beav. 591 ; Slater v. Dangerfleld, 15 M. & W. 263 ; and the word " children " enlarged so as to be construed " issue " generally, Farrant v. Nichols, 9 Bear. 329 ; " nephews and nieces " have been held to include great-nephews and great-nieces, James v. Smith, 14 Sim. 314 ; the copulative particle has been read as the disjunctive, and vice versa, Green v. Harvey, 1 Hare, 431 ; Day v. Day, Kay, 703 ; Morris v. Morris, 17 Beav. 198; Maude v. Maude, 32 Beav. 290; "freehold estate" has been held synonymous with " real estate," Reeves v. Baker, 18 Beav. 373 ; ex- pressions large enough to have included real estate have been restricted to personalty, Coard v. Holdemess, 30 Beav. 147 ; and the words " legacy " and " bequest " respectively, extended to signify a devise of real estate, 1 Ea. 37, n. S ; Whicker v. Hume, 14 Beav. 518 ; etc. [The above Proposition obviously distributes itself under the two fol- lowing rules : — [1. No word or phrase can be divested of its strict and primary mean- ing, by reference to the context, until the court is satisfied, by such con- text, that the testator did not employ such word or phrase in its strict and primary sense. [3. No word or phrase can be clothed with a secondary or incorrect meaning, by reference to the context, until the court is satisfied, by such context, as to the exact sense in which the testator did employ such word or phrase. [See Mellish v. Mellish, 4 Ves. 45 ; Walker v. Tipping, 9 Hare, 800 ; Auther v. Anther, 13 Sim. 432 ; Taylor v. Richardson, 3 Drew. 16 ; 1 Jarm WUls, 3d Ed. 420. [By force of the controlling context, a- word or phrase may, in one part of a will, bear a meaning different from that assigned to it in another : Dalzell V. Welch, 3 Sim. 319 ; Carter v. Bentall, 3 Beav. 551 ; Head v. Ran- dall, 3 T. & Coll. C. C. 231 ; Williams v. Teale, 6 Hare, 339 ; Hedges «. Harpur, 9 Beav. 479 ; Neathway «. Reed, 3 De Gr. M. & Gor. 18. See, how- ever, per Lord Brougham, in Doe d. Winter « Perratt, 6 Mann. & Gr. 362 ; • and per Lord Cottenham, in s. c. Hk 385 ; Learning v. Sherratt, 2 Hare, 14 As to the effect of a clear mistake upon the face of a will, see Langston v. Langston, 3 01. & Fin. 340 ; infra, pi. 57, n. d.] ' See Royle v. Hamilton, 4 Ves. 437 ; 3 Eden, 196, n. a, and the cases there cited; 3 Bro. C. C. 68; 1 Doug. 341 ; 5 Ves. 401 ; 8 Ves. 10; 10 Ves. 195 ; Winterton e. Crawfurd, 1 R. & Myl. 407. According to the same principle carried to its extent, it seems that where there are several successive instruments all referring to the same subject, the court will look at them all. Courtney v. Ferrers, 1 Sim. 137. So, also, where Several PKOPOSITION I. 61 23. In the case of Dent v. Pepys,^ tlie Vice-Clian- cellor siilbstituted the name of one set of devisees for another, upon the ground that the context of the will required him to do so. [Parol evidence, then, is admissible, in aid of the construc- tion, 1, where there is a latent ambiguity ; 2, to rebut a re- sulting trust ; 3, to prove that the will or part thereof is not the will of the testator, but has been obtained through fraud, or otherwise is not a iond fide statement of his will ; or, 4, has been defeated by lapse or ademption.' [The primary sense of the terms used being insensible, then a secondary sense is tried, or part of the description is eliifiinated as so much false demonstration. It is possible, however, that after all these efforts of the court the will may be still void for uncertainty. This may happen if two or more claimants ap- pear each equally suiting the description in the will, and yet neither being able to adduce any extrinsic evidence sufl&cient to incline the scale in his favor. [Jarman^ says that "no word or phrase can be divested from its appi'opriate subject or object by extrinsic evidence showing that the testatoi* commonl}', much less on that parti- cular occasion, xised the word in a sfense peculiar to himself, or even in any general or popular sense as distinguished from its strict and primary import." ^ [This passage is erroneous. Accordingly the editor in a note intimates that the doctrine of the text is true only if no appropriate subject or object exists. The case of Kurtz v. Hibner was, however, recently decided by the Supreme Court of Illinois, on the principles expounded by Jarman. See Cromer v. Pinckney, 3 Barb. Ch. 466 ; Eoosevelt v. Thurman, 1 Johns. Ch. 220 ; Mowatt v. €arow, Y Paige, 328; Sherwood v. Sherwood, 3 Bradf Sur. 230. [The interpretation put upon the words by 1, the context, contemporaneous instruments form one transaction. Colegrave t. Manby, 3 Russ. 338. ' 6 Madd. 350. ■" Eeffell V. Reffell, Law Rep., 1 P. & D. 189, ch. 8. » 1 Jarman, ed. 1861, p. 386. 62 PEOPOsiTiour I. 2, by statute, 3, by the local, 4, technical, or, 6, popular sense of the words used will be alone permitted^ to unfold the intention of the maker of a will, or of a written contract, except where the identification of the subject of object is in question. [The primary meaning of a testator will not be abandoned by the court in order to effectuate a bequest by giving a se- condary sense to the terms in the will, if the primary meaning of the words involves a violation of a statute, e. g. the ISTavi- gation acta, or is otherwise opposed to a principle of public policy.^ The primary meaning succumbs to a difficulty of fact, but not to one of law or policy. [Although' the court will transpose words in order to make sense of, and give eff^ect to, the whole will, yet such transposi- tion cannot be effected with any aid from parol evidence. This, in Oastleton v. Turner,' where a testator gave various gifts, but only two women were mentioned throughout in the will, viz. : his wife and his niece, and at the end of the will he gave a particular estate to " her." Lord Hardwicke construed " the word ' her ' to relate to the wife, on the ground that it was so used in the other parts of the will, and he then refused to admit parol evidence to show that the testator intended by the provision to refer to his niece. [The meaning of words according to local usage will prevail over the primary meaning, and parol evidence can be given of the usage of the locality or of the testator.* Even a prevalent and common mistake as to boundaries was considered in Austee v. ITelms,^ entitled to prevail over the description in the authorized maps. This rule, however, is ha;'dly reli- able. Or, rather, the maxim " Communis error facit Jus" can hardly be deemed applicable when the error in question cannot be very general, much less universal.. It cannot, for instance, be shared in by those who have access to the maps and other evidences of the best kind relating to the point. ' Smith «. "Wilson, 3 B. & Ad. 738 ; see Brown «. Brown, 8 Met. 576. " Tatham v. Brummond, 10 Jiir. N. S. 1087. » Cited 3 Ves. Sen. 316. * See Doe d. Gore ». Langton, 3 B. & Ad. 680. See, however, Doe d. Brown v. Brown, 11 East, 441 ; Doe d. Chichester v. Oxenden, 4 Dow. H. Ldg. Cas. 65, post, p. 73. = 1 Hurl. & Nor. 335. PROPOSITION I. 63 [The case of Anstee v. Nejms is reconcilable with the host of other cases to which it seems to be opposed by the fact that, at the time of making the will, all the testator's lands were rated for the parish of Doynton. This was legal evidence of the ' best kind that the lands were really all included in that parish. It was strictly a case of communis error. [Statute law has not interfered much in the matter of con- struction, as distinguished from the execution, of wills. Oases, therefore, in England or in any State, are of authority through- out the Union. [A case analdgons to Boydell v. Drummond^ is presented in the case of Clayton v. Lord Nugent,^ except that the missing link related in the latter case to the attestation and -not to a writing. The testator referred by an unattested writing to a card which would explain the terms and symbols used in the will. The card was held inadmissible as evidence of the con- struction. Had the card been referred to in the will, the maxim verba relata inesse videntur would have been applicable. The card then would be deemed to have been incorporated by re- ference. [The maxim verha relata inesse videntur applies to wills. Any document, therefore, referred to in a will, is to be construed so far as part of the will. The case of Sanford v. Eaikes,' how- ever, when strictly considered, is not, perhaps, any exemplifica- tion of the maxim veria relata. A document referred to in the will was adduced in evidence not for the purpose of ex- plaining the will, but of identifying the subject of the devise. The document was held admissible for this purpose, although it might be doubtful whether for purposes of direct aid in the in- terpretation it should not be more specifically referred to as was held in the case of Boydell v.- Drummond. See the comments of J. W. Smith on this case, in Smith's Lectures on Contracts. [The doctrine contained in proposition number one, is vir- tually identical with the rule that a testator's general intention \ \ is to be deemed paramount to any adverse particular intention \ \ of his. See Eoddy v. Fitzgerald, 6 H. L. C. 877. . Both doc- trines are examples of the general principle of construction cy 1 11 East, 141. " 13 M. & W. 200. ' 1 Mer. 646. 64 PROPOSITION I. pres. Where every clause cannot receive its plain grammatical interpretation, a balance is struck, so to speak, and the mean- ing of a particular clause is determined not merely by the meaning of the particular terms used, but also by reference to every other clause in the same document, so far as the rules of law will allow, the net meaning being still further subordinated to the testator's primary or paramount designs. [This modifying influence of the context may greatly alter the primary meaning of a particular passage. For, the con- test is between two inconsisteYit primary meanings of two distinct clauses in the same document. Both of such primary meanings cannot prevail. The obvious' alternative is a com- ■ promise. One written sentence is found to be opposed to an- other, if the grammatical sense of the terms used be alone regarded. Therefore, ut res magis valeat, instead of cancelling either or both, one or both are cut down to denote ideas and objects different from their primary ones. Even technical words will be despoiled of their special force when "from other words it is very clear that the testator meant other- wise." ^ No word will be expunged if possible. But, even words or clauses will be altered or expunged, if they are in- consistent with the primary intention of the testator, or are totally irreconcilable one with the other. In the last case put, the latter clause will be the one expunged, if it is not more intimately relative than the preceding clause to the tes- tator's primary intention. [Lord Kingsdown, in Towns v. Wentworth, 11 Moo. P. C. C. 526, expressed ah opinion that, " when a rule of law has affixed a certain determinate meaning to technical expressions, that meaning must be given to them, unless the testator has by his will excluded, beyond all doubt, such construction." His Lordships here intimates an opinion that the use of a technical phrase affords stronger evidence of a testator's inten- tion, and can be less easily cut down in meaning, than if the phrase were one of less legal significance.^ ' Per Lord Wensleydale, in Roddy ^v. Fitzgerald, 6 H. L. C. 877 ; Doe V. Gallini, 6 B. & Aid. 640. = See Buck v. Nurton, 1 B. & P. 57 ; ThelussDn c. "Woodford, 4 Ves. 339 ; Jesson ». Wright, 3 Bligh, 1. PROPOSITION I. 65 The proposition, however, stated by Lord Kingsdowu, does not prevail to any extent jn America. But it is daily gaining strength in England, although it leans to the side of techni- cality. [The First of Sir James Wigram's propositions was stated by him merely by way of inducement to what follows. Pro- position number one relates only to intrinsic evidence or con- struction, and not to the main subject of his treati&e. The reader, therefore, is referred to the supplementary treatise for further elucidation of Proposition one.] PEOPOSITION n. Where there is nothing in the context- of a will from {which it is a^pa/rent that a testator has used the words in which he has expressed himself in any other than their 'strict and primary seiise, and where his words so inter- preted are sensible with reference to extrinsic circum- stances,^ it is an inflexible rule of construction^ that the words of the will shall he interpreted in their st/rict and primary sense, and in no other, although they may he capable of some popular or seconda/ry interpretation, and although the most conchisiwe evidence of intention to use them in such popula/r or secondary sense he tendered? 24. The importance of this rule, and the strictness with which it is applied in practice, will justify the following statement of some of the principal cases by which it is illustrated. 25. Thus, though the word child may be construed to mean illegitimate child, where the proper meaning of the word is, of absolute necessity, excluded ; ^ yet, if no such absolute necessity exist, the word shall receive no other than its strict and proper interpretation.* ' [See per Coleridge, J., 9 CI. & Fin. 535.] " [See the judgment of Sir J. L. Knight Bruce, in Bird «. Luckie, 8 Hare, 301.] ' See infra, pi. 51 et seq. * Cartwright v. Vawdry, 5 Vea. 530 ; Godfrey v. Davis 6 Ves. 43 : Fraser v. Pigott, MS.; S. C, 1 Yoimge, 354 : Wilkinson ®. Adam 1 Ves. & B. 433 ; Swaine v. Kennerley, 1 Ves. and B. 469 ; Harris v. Lloyd, 1 Turn. PKOPOSITION II. 67 26. So, although in the case of a devise of "my real estate," property sulaject to a power may pass, where there is no real estate to' satisfy the devise;^ yet if- there be (my real estate upon which the will can operate, it is otherwise.^ & Russ. 310 ; Mortimer «. West, 3 Russ. 370. N.B. the recent case of Bag- ley V. Mollard, 1 Russ. & Myl. 581. [Doe d. Thomas v. Beynon, 12 Ad. & Ell. 431 ; Owen v. Bryant, 3 De G-. M. & Gor. 70.3 ; Wanler v. Warner, 20 L. J. Ch. 373, s. c. 15 Jur. 141; Overhill's Trusts, 1 Sm. & Gif. 363; Gabb V. Prendergast, 1 Kay & Job. 439 ; Pratt «. Mathew, 33 Beav. 338. A child en ventre sa mere is, for all purposes of construction, considered as. a living child : Clarke v. Clarke, 3 H. Bl. 399 ; Clarke v. Blake 3 Yes. jun. 673 ; Storrs v. Benbow, 3 De G. M. & Gor. 390.] ' Infra, pi. 53. ° Lewis V. Llewellyn, 1 Turn. & Russ. 104 ; Denn. v. Roake, 5 B. & Cres. 720 ; Sug. on Powers, c. 5, ss. 5, 6. Hoste «. Blackman, 6 Madd. 190 ; Doe d. Caldecott ■v. Johnson, 7 M. & Gr. 1047. [The 7 Wm. 4 & 1 Vict. c. 36, enacts (sec. 34) :— " That every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed im- mediately before the death of the testator, unless a contrary intention shall appear by the will '■' (see Bullock ■». Bennett, 1 Kay & Job. 315, S. C. on appeal, 7 De G. M. & G. 383 ; Goodlad v. Burnett, ib. 341 ; Cole v. Scott, 1 Mac. & Gor. 518) ; and, sec. 37, — " That a general devise of the real estate of the testator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention ' shall appear by the wUl ; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner " (see Hawthorn v. Shedden, 3 Sm. & Gif 298), " shall be construed to include any personal estate, or any personal estate to which such description shall extend, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will." ( See Staiman v. Weedon, 16 Sim. 36.) [Under the latter of these sections a general (as distinguished from a limited) power over personalty may now be executed by a bequest of pereonal property described in a general manner (Spooner.'s Trusts, 3 Sim. N. S. 139), and a general devise of realty under similar circumstances will have a like statutory effect (Lake v. Currie, 3 De G. M. & Gor. 536). But 68 PROPOSITION II. 27. So, personal estate subject to a power, will not pass under the words . " my personal estate," whether a mere general bequest of the testator's personal estate will still, as hereto- fore, be ineffectual as regards the execution of a limited power (Cloves v. Awdry, 12 Beav. 604). As regards the effect of a general devise of realty to the objects of a limited power, it may be questioned whether the author's reasoning in paragraph 37 must not now apply equally to the case of real estate. Suppose by will executed before 1838, A. having, as to certain real estate, a power of appointment among the children of B., and being entitled to no other realty, made a general devise in tUeir favour ; it is clear that the power would have been well executed for the reason stated by the author in paragraph 26. But suppose the devise subject to the new law, it is equally clear that, by virtue of sec. 24, it migM have had an operation without executing the power. Thus what would have been a good execution of the power under the old law would, in the case put, be no longer so under the new. If this conclusion be cor- rect, the language of Lord St. Leonards in Lake v. Currie, which was the case of a general power, must be understood in a less extensive sense than that which at first sight it might appear to bear. " It is clearly settled," observed his Lordship, " that a general devise or bequest will not, in- dependently of the late statute, operate as an execution of a power ; but it is also settled, that where a testator disposes of real estate, not having any other than what is subject 'to the power, he is, in such case, to be taken as dealing with that estate, and that, as to both realty and perso- nalty, if the Court is satisfied by the manner in which the particular property is referred to that the testator intended to deal with that property, the disposition will be a valid execution of the power. The cases have gone upon very fine distinctions, but the general rule is clear. It is said, however, that the late statute, which makes a general disposi- tion operate as an execution of a power, and makes also the will take effect as from the death of the testator, hasaltered the law in this respect. It is argued, that, as before the statute a general bequest of personalty could not operate as an execution of a power, because it would not be any expression of intention on the part of a testator, who, although at the date of his will he might have no other property than that affected by the power, would yet know that the bequest would operate on vfhatevfir he might have at his death ; so now, since real estate held by the testator at his death will pass by his will, the same rule must apply generally, and a disposition of realty will not operate as an execution of a power, even where the testator has no other at the date of his will, because he may at his death have property which will be affected by the devise. The statute, however, so far from operating in this way, gives greater extent to the intention of testators, and provides as to general powers of appoint- ment that they shall be deemed well executed by a devise, unless a con- PROPOSITION II. 69 tlie testator has personal estate at tlie time of making Ms will or not ; ^ for, as personal estate acquired after the date of the will would pass by the will, it might possibly have had a sensible construction without de- parting from the strict meaning of the words.^ , 28. So, although, the words, son, child, grcmdchild, \ etc., may be construed in a secondary sense, where the ' will would be insensible, if the primary meaning of the ;' word« were adhered to,^ yet it is only where that is the case that a departure from the strict sense of the words ■^s permitted.* 29. In Beaumont v. Fell,® Grertrude Yardley was trary intention appear by the will. The intention was to extend^ and not to narrow, the operation of devises, and therefore to hold, that cases which before, the statute would have' been an execution are not so now, would be contrary to the whole scope of the Act ; and if the new law is to operate at all, it must be in favor of the appointment. It is now ab- solutely necessary to show a contrary intention, to exclude the execution of a power, while under the old law it was needful to show the intention to exercise the power ; the case is therefore stronger in favor of the ap- pointees under the new than under the old law." See also Walker v. Banks, 1 Jur. K S. 606.] ^ [But now see 7 Will. IV. & 1 Vict. c. 36, s. 37, supra, p. 19, note.] ' Andrews ». Emmot, 3 Bro. 0. C. 3Q7 ; Nannock v. Horton, 7 Ves. 391 ; Jones v. Tucker, 3 Mer. 533 ; Andrews v. Lemon, cited 4 Dow, 90 ; Jones V. Curry, 1 Swanst. 66; Webb v. Honnor, 1 Jac. & W. 353. [Dover e. Alexander, 3 Hare, 385; Davies v. Thorns, 3 De G. & Sm, 347; Lowell V. Knight, 3 Sim. 375; S 0. 5 Sim. 116 ; Lempriere ». Valpy, 5 Sim. 108; J)umner v. Pitcher, 3 Myl. & E. 377; Evans a. Evans, 33 Beav. 1; Shel- ford V. Ackland, iS. 10.] ^ = Infra, pi. 51, 53. * Eoyle V. Hamilton, 4 Ves. 437 ; 3 Eden, 196, n. ' ;' Reeves v. Brymer, 4 Ves. 698; Radcliffe «. Buckley, 10 Ves. 195; Shelley ». Bryer, 1 Jac. 207 ; Hart v. Durant, 3 Anst. 684. [Durrant v. Friend, 16 Jur. 709 ; Stod- dart V. Nelson, 3 Jur. N. S. 37 ; Corporation of Bridgenorth v. Collins, 15 Sim. 541 ; Smith v. Lidiard, 3 Kay & Joh. 353 ; Crook «. Whitley, 7 De Or. M. & Q. 490.] ' 3 P. Wms. 140. And see the observations upon this case in Hiscocks V. Hiscocks, infra, pi. 183, [and in 1 Jarm. Wills, 3 Ed. 36fe. See also Lee J). Pain, 4 Hare, 261 ; Ryall v. Hannam, 10 Beav. 536; Re Eickit's Tmsts, 11 Hare, 399.] 70 " PKOPOSTTION 11. held entitled to a legacy, wMch. by the will was given to Catherine Earnley. The Court, however, in that case held it to be material, that no person named Catherine Earnley appeared to claim the legacy. 30. In Delmare v. Eobello,^ the testator gave a le- , gacy to the children of his two sisters, Reyne and jEstrella. Reyne nevier was married; and before the date of the will she had become a nun professed, and had changed her name to Maria Hieronyma, The test- ator had a third sister, Rebecca, who had several child- ren. The bill was filed by the children of Rebecca, claiming the legacy, upon the ground that Rebecca and not Reyne was intended ; and evidence was offered to prove the fact, but the evidence was rejected and" the bill dismissed.^ See also the case from Swinburn, cited in Beaumont v. Fell, uii sup. 31. In Hampshire v. Peirce^ a testatrix gave £100 to tliefcmr children of A., and at a great distance in her will from that legacy she fwrther gave j£300 to the children of A. — A, at the date of the will, had six children, two by a first husband, and four by a second. It was proved that the testatrix intended, by the first part of her wUl, the four children of the second mar- ' 1 Ves. jun. 413. S. C. 3 Bro. C. C. 446. See also Holmes v. Custance, 13 Ves. 379; Blundell v. Gladstone, 11 Sim. 467, 1 Ho. Lo. Cas. 778; Daubeny v. Coghlan, 13 Sim. 507. '^ [Lord Thurlow, in rejecting the parol evidence, suggested that Maria Hieronyma might have changed her mind, and escaped into this comitiy and had children, notwithstanding her vow. He decided, therefore, that the claim of the children of Rebecca was untenable, inasmuch as there was a sister answering to the name in the will ; for he considered that the assumption of the conventional name did not prevent the applicability of the former name : it was part of the profession merely, and not meant for the world at large. See 1 Jarm. Wills, 3 Ed. 365, and Mostyn ». Mostyn, 3 De G. M. & Gor. 140 ; S. C. on appeal, 5 Ho. Lo. Cas. 155.] ' 3 Ves. sen. 316. See the observations upon this case in Hiscocks riage; tlie 8(mm evidence proved, that slie intended tlie same four children only by the • second part. But though the Court gave effect to the evidence, so far as the first legacy was concerned, it refused to restrain the words in the second bequest. 32. In Strode v. Russel,^ a testator devised his lands, tenements, and hereditaments out of settlement to A. The testator had some lands which were not comprised in any settlement ; and was seized of a re- version in fee in other lands, which were subject to the trusts of a settlement. The Court was of opinion that a reversion in settled lands was a hereditament out of settlement, and (ultimately) refused to admit evidence to show that the lands not comprised in the settlement, and no others, were intended to pass.** ' 3 Vera. 631 ; 8 Vin. Abr. 194, pi. 33; 3 Atk. 374. = [In HaU ®. Fisher, 1 Coll. C. C. 47, the testator devised '■ all VaaX free- hold farm, called the Wick Farm, in Headington, containing 300 acres or thereabouts, occupied by William Eeley, as tenant thereof,' to uses ap- plicable to freehold property only. At the date of the ivill and of the death of the testator, Eeley held under a lease from the testator 303 acres of land in Headington, which were described in the lease as the Wick Farm. Of this property, 13 acres were leasehold. ' [Sir J. L. Bjiight Bruce said : — " The word ' freehold ' as used in this will, seems to me a necessary part of the description which cannot be re- jected. If it had been omitted, the probability is, that the leasehold in question would have been held to pass. Again, if the whole of the farm had been leasehold, the insertion of the word 'freehold' would probably not have been material. But there is a subject here which properly an- swers the description given in the will. There is a freehold farm called the Wick, which contains 300 acres or thereabouts (incorrectness, if there be any incorrectness in that respect, is immaterial), and which is occupied by Eeley. Being of opinion that the freehold part of the farm is properly described by those words in the will, although the leasehold should be abstracted from it, I am obliged to say that not any leasehold land, al- though used and treated as freehold, can pass under this devise. I regret to be obliged to come to this decision, inasmuch as I think it likely that the testator intended otherwise, but did not suflSciently, or did not ac- curately, inform his solicitor of the circumstances of the property." See also Wilson v. Eden, 11 Beav. 337; Morell v. Fisher, 4 Exch. 591.] 72 PEOPOSIOPIOK II. 33. In Pocock v. Tlie Bishop of Lincoln/ a testator gave to his son K, the perpetual admowson of H. B., in Leicestershire. E.., at the time of making the will, was incumbent of the living of H. B. E. claimed the ab- solute interest in the advowson ; and in support of his claim it was argued, that he would take nothing \>j the will if it were construed to give him a life interest only. Held,* that he took only a life interest : for, ii E. should resign the living to obtain ecclesiastical pre- ferment, he would have, under the will, the right of presentation to the living ; and so the will had some operation, without departing from the proper meaning of the words " perpetual advowson," which, strictly in- terpreted, are descriptive of the subject-matter of the devise, and not of the interest which the testator had in it. 34. In Doe d. Oxenden v. Chichester,* the principle \ now under consideration was carried to its rfull extent. In that case, the testator, devised his " estate of Ash- ton" to Oxenden. The testator had an estate which he used to call by the name of his '^Ashton estate," and the accounts relating to which were kept in his steward's book under that name. Part only of this estate was locally situated at Ashton. The most con- clusive evidence of intention to devise the whole estate, which the testator used to call his "Ashton estate," and not that part only which was locally situated at Ash- ton, was tendered. The Court, however, was of opinion that the words " estate of Ashton," strictly interpreted, were descrip|;ive of an estate locally situated at Ash- ■ 3 Brod. & Bing. 27 ; [and see judgment in Dover d. Alexander, 3 Hare, 283 ; Barnacle v. Nightingale, 14 Sim. 456 ; Yates v. Maddan, 3 Mac. . Vashon, 3 Mer. 434.] 88 PBOPOSITION II. name, wlien requested so to do, of £12,000 Consols, and, payment of interest equal to the dividends in the mean- time, and had entered into a covenant for the retransfer in the terms of the proviso. No request to retransfer the stock had been made when the testator died. The Lord Chancellor held that the £12,000 Consols secured by the mortgage passed by the will as part of the legacy of £15,000 3 per cent. Consols. His Lordship's judgment was as follows : — " The question upon this appeal is, whether a sum of £12,000 3 per cent. Con- sols, which the testator, at the time of making his will, was entitled to have transferred to him under an ordi- nary stock mortgage, is applicable to the payment of a legacy of £15,000 like stock under his will. The Vice- Chancellor's decree has declared that it is. Henry Col- lison, the residuary legatee, contends that it is not, but that it belongs to him as part of the ■ residue. It ap- pears from the mortgage deed, stated in the Master's report, that, in the year 1824, the testator was possessed of £12,000 3 per cent. Consols, which, upon the appli- cation of Nicholas Cobb Collison, was sold, and the proceeds paid to him, upon his undertaking, at the re- quest of the testator, to transfer to him the like sum of £12,000 3 per cent. Consols, and in- the meantime«to pay to him such sums as should be equal to the divi- dends upon such stock. The deed then recites, that the retransfer of the stock, and the payment of sums equal to the dividends, should be secured by a mortgage of certain property of the borrower; and it proceeds accordingly to convey the property. The proviso for redemption is upon the mortgagor at the request of the mortgagee, transferring or replacing, or causing to be transferred or replaced, the stock ; and until the same should be replaced, paying sums equal to the dividends ; and the mortgagor covenants, at the request of the PEOPOSITION II. • 89 mortgagee, to transfer or cause to be transferred, or re- placed, into the name of tlie mortgagee, the said sum of stock; and to pay the dividends. It is perfectly true thM the £12,000 3 per cent. Consols, which had stood in the name of the testator, passed by this transaction into other hands, and no longer existed in the posses- sion of either the lender or the borrower; but it is equally true that transactions of this kind are treated and considered as loans of stock, and are so described ; and accordingly the mortgage deed in this, as in other such cases, speaks of retransferrmg and replacing the said sum of stock, whereas, in fact, the right of the mortgagee and the obligation of the mortgagor is that a certain new portion of stock should be transferred, or procured to be transferred, by the mortgagor into the name of the mortgagee ; but as the arrangement secures to the mortgagee precisely the same amount of pecun- iary value, and, upon being completed, will leave him in possession of property, not identically what he had before, but in every other respect the same in specie and value, he ' naturally considers that he has not parted with but only lent his stock ; and so consider- ing it scarcely does more viplence to the accuTacy of language than in speaking of any sum of money lent as the lender's money, as he never expects to receive back precisely the mo^^ey he advanced, but money of equal value and amount. In considering the terms of the will, upon which the question turns, the testator must, be considered, either as the lender of stock, and there- fore the owner of it, as a lending does not change the property in the thing lent, in which case there would be no difficulty, or at all events, as entitled by contract to have transferred into his name a certain, amount of the stods; ; and it does not appear to me to be very material which supposition is adopted. The will is 90 '. PROPOSITION II. dated in 1832, and tlie testator in tlie first place gives £15,000 interest or stare in tlie 3 per cent. Consols, wticli lie directs shall be deemed a legacy of quantity, upon certain trusts : then, after disposing of an existing , sum in the 3^" per cents., he gives £3,400 3 per cent. Eeduced Annuities, which he also directs shall be deemed a legacy of quantity, upon certain other, trusts. . In a subsequent part of his wUl he directs, that if he should not die possessed of 3 per cent. Consols, and 3 per cent. Eeduced sufficient from one or both of those funds t& answer and satisfy the said sum of £15,000 3 per cent. Consols, and £3,400 3 per cent. Reduced, then his executors shall purchase so much as wUl make up the deficiency, and the money necessary for that purpose he directs shall be raised out of his real estate, .and creates a term of years for that purpose ; and in declaring the trusts of the term, he directs that there shall be raided the full amount or, as the case may require, the deficiency of the said smn of £15,000 3 per cent. Consols, and £3,400 Reduced 3 per cent. Annuities, " in case I shall not have, at the time of my decease, as aforesaid, sufficient 3 per cent. Annuities in both or either of those funds to answer both those legacies." By the residuary clause he gives to the appellant all the residue of his personal estate and effects whatsoever and wheresoever, except the 3 per cent. Consols, 3 per cent. Reduced, and 3^ per cent. . Aumuities. It appears, by the report, that the testator, in 1834, purchased £3,000 3 per cent. Consols, so that -with the £12,000 the £15,000 3 per cent. Consols would be made up; and there is no question but that the legatees of the £15,000 3 per cent. Consols are -entitled to have that sum realized either by the pur- chase out of the general estate or by application of the £12,000 ; but the residuary legatee insists that the PROPOSITION n. 91 £12,000 3 per cents, due upon tlie inortgage passed to tim under the residuary clause, and that that amount of stock is to Ibe purchased for the legatees by means of money to he raised out of the real estate. Such could not have been the testator's intention. If the covenant in the mortgage deed had been per- formed, and the stock replaced, the question could not have arisen; and it is not possible to suppose that the testator intended the title of his devisee and re- siduary legatee to the value of such, stock to depend upon the fact or the accident of such transfer being or not being made. £ut the question is, are there words in the will to enahle the Oowrt to give effect to what must he supposed to have heen the testator's in- tention} If the testator considered himself, as per- ' [No supposition, as to what may have been a testator's intention while writing his will, ought, it is submitted, to be based upon the subsequent course of events. A fortiori^ no such supposition can affect the construc- tion of what he actually wrote. The Courts are not only theoretically, but morally, in the dark with regard to his motives and intention, except as expressed by him in his written will. " No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is per- mitted to be capricious alid improvident, and is moreover at liberty to conceal the circumstances and the motives by which he has been actuated in Ms dispositions. Many a testamentary provision may seem to the world arbitrary, capricious, and eccentric, for which the testator, if he could be heard; might be able to, answer most satisfactorily. And this is one among the reasons that may be, and have been, judicially given against readily attributing to men mistakes in the language that they use in their wills, and against departing from the proper sense of their words without something more than conjecture; without something more than the mere opinion of the interpreter, however wise he may be, that the language construed according to the rules of idiom would make an eccentric or in- convenient provision, — reasons which may not always have been adhered to, which may possibly be at variance with some particula!r instances of construction now of settled application in some particular cases, but which are generally true and sound." — ^Per Sir J. L. Knight Bruce, in Bird v. Luckie, 8 Hare, 306 ; and see the observations of the same learned Judge in Hart ». Tulk, 3 De G. M. & Gor. 313 ; of Sir James Wigram, V. C, in 92 PROPOSITION II. sons in his situation usually do, as having lent the stock, and therefore as being still owner of it, the ex- pression used in the will would accurately describe what, upon that supposition, he must have considered as his title and interest in the stock ; and there is, I think, strong ground, from the expressions of the mortgage deed, for concluding that such was his un- derstanding of his situation with relation to the stock ; but if the transaction be considered with the utmost technical accuracy, the testator, when he made his will, held a contract under which he was entitled at any time to require the transfer into his name of £12,000 3 per cent. Consols, and in the meantime he had all the benefit which could arise from the fund if actually transferred. 'As against the other party to the contract, he had no right except to such transfer : he had no demand for any money : suth party was not bound to pay him any, but might have discharged himself from the obligation- by making the transfer. If his interest under such contract be not accurately described as stock of which he was possessed, or which he liad^ which are the expressions used, is it more accurately described as personal estate excepting 3 per cent. Consols % for such are the terms of the re- siduary clause, and it is between those two gifts that the contest lies. If a testator, hg,ving contracted for the purchase of a large quantity of wool, should make his will bequeathing to one person all his personal estate except his wool, and to another all his wool, could there be any question as to the title to the wool so contracted for, although the party contracting ' to sell had it not himself, but had to procure it to Hillersdon®. Lowe, 2 Hare, 355, and of Lord Brougham in Doe A. Winter «. Pen-att, 6 M. & Gr. 371.] PKOPOSITION II. 93 enable him to fulfil Ms contract? What a party is entitled to under a contract he considers as his own. Lands contracted for will pass by a general devise of all the testator's lands, and of all the lands purchased by him, although he had other lands* purchased and actually conveyed : Atcherley v. Vernon.^ Why, then, if a testator contract for the purchase and transfer of a particular description of stock, and then bequeaths all he possesses or has of such stock, is it not to pass ? The words of this will would clearly have passed stock standing in the names of trustees for the testator, and yet he would not have possessed or had the stock, in the sense contended for by the appellant ; but the words would be construed to .iaclude stock to which he was entitled ; and if so, the testator in this case was also entitled to the stock. I am, for these reasons, of opinion that the £12,000 3 per cent. Consols, secured by the mortgage, is well bequeathed to make up. the legacy of £15,000 3 per cent. Consols; and that the Vice-Chancellor's decree is right ; and that this appeal must be dismissed with costs." As this case is under appeal to the House of Lords, the author abstains from making any remarks upon it.* • 10 Mod. 518. ' In this case instructions were laid before counsel to prove by tbe dec- larations of the testator that he did not intend the £13,000 stock, secured by the mortgage, to pass as part of the £15,000 "Consols. The interroga- tories were not drawn, because the evidence was properly considered by counsel to be inadmissible. , [The above decree was affirmed on appeal, 9 01. & Fin. 88 ; 8. C. 6 Jur. 673. Lord Lyndhurst, C, in giving judgment, said, after referring to the general circumstances of the case : — " The facts as to the state of the prop- erty were these : — The testator had purchased, some time before his death, £3,000 3 per cent. Consols; he had, before that period, a sum of £13,000 3 per cent. Consols ; he had lent that £13,000 3 per cent. Consols to a relation of his, upon condition that that sum of Consols should be re- transferred and replaced at his request; and that, in the meantime, a sum equal to the dividends, and payable "at the time that the dividends were TDayable, should bepaid to Mm. Now, my opinion is, that having this 94 PEOPOSiTioiir II. 47, Opposed to tte strong current of cases last re- property at the time of his death, — ^namely, the £3,000 3 per cent. Consols, and being entitled, as I consider him entitled, to the other £13,000 3 per cent. Consols, — ^hehad, -within the meaning of this bequest, at the time of' his death, £15,000 3 per cent. Consols, and that they would satisfy the terms of the legacy. Under such circumstances, I consider that the judg- ment of the Court below was right. Lord Campbell, in expressing his concurrence with the above opinion, obserred :. — " It seems to me to be in conformity with the principle well established on the subject, and in accordance with all the decisions ; and I think it would be most formidable if it were to be supposed that we are departing from the principle that you cannot admit extrinsic evidence to show the sense in which a testator used any particular expression. I dis- claim all intention of any such departure on this occasion. On the contra- ry, I have looked to the will ; I have put an interpretation on it ; and I apprehend that, according to the just interpretation of that will, stock which the testator does possess under the circumstances which are here proved, would be ' possessed ' by him at the time of his death. " Then the reference is merely to inquire whether he had any such stock ; and it is not at all to put an interpretation on the will, but to ap- ^ly the language of the will. I apprehend that, according to common parlance, not putting any strained or secondary meaning on the language of the will, the testator may be sujiposed to say, that he is possessed of stock, which he held under the name of stock. ' Possessed ' is a very flexible word. ' All that I die possessed of,' would be all the pers6nal property which I have. 'AH the stock which I die possessed of,' would be stock which I may have lent, and which is to be restored to me in con- sequence of a contract which I may have entered into; and it is a matter which cannot depend, I think, on the remedy, and upon whether a Court of Equity would decree a specific performance or not. It is admitted, that if it were a horse, or anything of that sort, that was the subject of the con- tract, the testator might be considered in possession of it ; but even in that case the remedy would only be damages, to be raised from Ms lands in re- spect' of a breach of the contract. It seems to me, therefore, that the view taken of the case by the Vice-Chancellor and by the late Lord Chancellor was perfectly correct." The Courts, in this case, having professed to be governed by the principles enunciated by the learned author, it may be permissible, with unfeigned respect for the high authorities by which it was decided, to commend it to the careful consideration of the reader. It is clear that there was nothing in the context of Mr. CoUison's will, from which it was apparent that he had used the words " die possessed of" in any other than their strict and primary sense, and that his words, however strictly interpreted, were sensible with reference to extrinsic circumstances. The strict and primary sense of the above words was PROPOSITION II. 95 ferred to, stand tte case of Druce v. Dennjsoii/ and tlie cases upon the antliority of wMcIi tliat case was decided. 48. In the case of Druce v. Dennison it was held, that, for the specific purpose of raising a case of election, extrinsic evidence was admissihle to prove- that the testator, by the words " my .personal estate," meant personal estate subject to a power ; and the case is referred to in ' support of that proposition, in a work of the first celebrity.* 49. It may be questioned, however, whether Lord Eldon has not since repudiated the decision attributed to him by the ^report of that case in Vesey.^ The case, at all events, applies to cases of election only. It win probably be followed in Courts of equity of original jurisdiction, but wiU not, it is hoped, be sup- ported by the Court of last resort, if the point should ever call for determination there. The point is not of that nature which sometimes requires that a common error should be perpetuated.* therefore the only sense in which they could legitimately be adopted by the Court. Was the testator, in any such sense, possessed of the »j6l2,000 Consols at the date of his death ? In fact, the £13,000 was sold andr dispersed, the only bargain being, that the mortgage should some day go into the market and buy stock, in the name of his mortgagee, to an equiv- alent amount. Fully admitting the flexibility of the word in question, might not this yery case be cited as an instance of its pri;nary and second- ary use, if indeed it be necessary to concede that the testator was, in any correct sense, possessed of the £13,000 ? ' 6 Ves. 385. = Sugden on Powers, p. 385^3rd edit. [Vol. ii. p. 349,7th ed.] ' See per Lord Eldon in Doe d. Oxenden v. Chichester, 4 Dow, 65 ; and see BlommartD. Player, 3 Sim. & Stu. 597 ; and Dummer v. Pitcher, 3 Myl, & K. 363. [Shuttleworth ». Greaves, 4 Myl. & Cr. 37 ; Maxwell v. Max- well, 16 Beav. 113 ; Clementson «. Gandy, infra, pi. 133 ; 1 Jarm. Wills. 3nd ed. 377.] * [The doctrine of election may be thus illustrated: — [Suppose a testator to include in a devise to B. property which really , 96 " PKOPQSITION II. 50. The only positive exception to tlie Second Prop- osition, of wMcli the writer is aware, exists in those cases in which a testator, Tumi/ng no children, devises property in default or failure of issue of Tiirmelf ; in which case the words, in default of issue, arfcdhi/re of issue, contrary to their strict legal meaning, have been construed to mean issue Uvi/ng at the death of the tes- belongs to C, upon whom, by the same instrument, he confers a benefit. Equity will, in certain cases, compel C. to elect to take either under or against the will, i._e\ either to fulfil the testator's intention with regard to B., or to relinquish, in B.'s favor, the benefit intended for himself. The question frequently arises, whether or no the devise to B. was really de- signed by the testator to include anything belonging to C. (vide e. gr. Ellis v. Ellis, 3 Hare, 110 ; Jervoise v. Jervoise, 17 Beav. 566 ; Swan «. Holmes, 19- Beav. 471 ;• Maxwell v. Maxwell, 3 De ft. M. & Gor. 705.) In such cases, both upon principle and authority, extrinsic evidence of what the testator intended, as distinguished from what his words express, isadmisajble. But C. may, it is conceived, resist election by proving, if he can, thjt the disposition of his property, expressed upon the face of the will, is not the will of the testator. See inira, pi. 153. In connection with the subject of election, that of satisfaction may be here.adverted to, with the remark that the subject of this volume should be carefully distinguished from a class of cases with which it is sometimes confounded, i.. e. cases in which extrinsic evidence is admitted to rebut or support a legal presumption. This is, obviously, a very diflferent matter from admitting such evidence to prove with what intention particular »words were employed by a testator. In point of fact, the legal presump- tion above referred to, does not arise until after the meaning of the testa- tor's words has been determined. It arises upon his words properly inter- preted. The common cases of a devise or bequest by a debtor to his creditor, or by a parent, or one in loco parentis, to a child whom be has previously undertaken to portion, will occur to the reader. In such qases, the presumption of law, arising from whjit the testator has actually done, may be repelled by evidence showing the intention with which he did it. And extrinsic evidence adduced for this purpose, may be replied to by like testimony advanced in support of the presumption. See, generally, as to the admissibility and office of extrinsic evidence with rfeference to the purposes just adverted to : Wallace n. Pomfret, 11, Ves. 543 ; Weall v. Rice, 3 Russ. &Myl.'351; Kirk ». Eddowes, 3 Hare, 509; Exparte Pye, 18 Ves. 140; 8. C. 3 White & Tudor's Leading Cas. 363, and the notes thereon ; Williams on Executors, part III. book 3, sect. viii. PROPOSITION II. 97 tator.* . These cases are always spoken of as anoma- lies. [Unless the words of a will are ambiguous in some respect, parol evidence is wholly excluded.* It may be added to this Bta,tement that, unless the ambiguity also relates to the subject or object, parol evidence is inadmissible, even to the extent warranted by propositions 3 and 5. [The main reason perhaps, why, parol evidence is not admit- ted to explain an ambiguity under a will, so far as the words of disposition are concerned, ia, that there is no equity in such cases between the devisee and the heir, just as there is no equity between the heir and next of kin on a disputed or doubtful case of a direction to convert.* [The inotive for applying parol evidence in aid of the con- struction is to prevent the words receiving their primary signif- ication. The parol evidence is allowable for the purpose men- tioned, as is shown under Proposition 3, if' the gift accord- ing to the primary sense of its terms is void as insensible^ But, if it can have any, even the least, operation according to ' "ts primary signification, it will never be interpreted in any other way. Therefore, before adducing parol evidence, tlie preliminary question must be disposed of, " has the gift any force according to the primary sense of the terms of bequest."' If it has, or can, by possibillity, have such operation, parol evi- dence is inadmissible. [Parol evidence* therefore, is not admissible to show that a » French ». Caddell, 3 Bro. P. C. 357; Wellington «. Wellington, i Bnrr. 2165 ; S. C. 1 Blacks, 645; (Lytton v. Lytton, 4 Bro. 0. 0. 441 ; Jones V. Morgan, 1 Bro. C. C. 306 ; Sandford v. Irby, 3 B. & A. 654. [Doe v. Lucraft, 1 M. & 8c. 573 ; 8 Bing. 386 ; Egerton v. Jones, 3 Sim. 409 ; Rye's Settlement, 10 Hare, 106 ; 3 Jarm. Wills, 3nd ed. pp. 436 et. seq. The 7th Wm. 4 & 1 Vict. c. 36, s. 39, has, with reference to wills executed or re- published on or after the Ist of January, 1838, placed tffis exception which was originally admitted by the Courts in deference to the evident intention of the testator) under the protection of positive law. See the observations on this section in the volume just referred to, pp. 453 et se^.] ' Tamlyn on Evidence, pp. 338, 334 ; Hampshire v. Pierce, 3 Ves. Sen. 216. • • Wright V. Trustees of Meth. Episcop. Ch., 1 HoflF., 803. 98 ■ PROPOSITION II. gift by will* was intended to be an execution .of a power, even though the sum bequeathed is the amount subject to the power, and the testator has no other property. The reason appears to be that the ambiguity in such cases relates to the words of dis- position rather than to the subject of the testator's power, since he may at his death have personalty. Accordingly, neither the coverture nor the infancy of devisees can effect the question whether, they take beneficially, or a mere legal estate. The question is wholly one of construction.' There is a possibil- ity that the feme covert may become discovert, and that the infant may reach maturity. Tire terms of the will, being thus sensible in their primary signification, can receive no secondary construction. {Pari ratione, though a bequest to one, his executors, etc., may lapse, parol evidence is not admissible to show that the testator used, the word executor as a term of purchasei and not of legal devolution, and for the purpose of preventing a total lapse.' [It may be considered as certain that a devise of an estate described as of a certain county or parish will not be extended to lands outside of the county, parish, or district specified, if the devise can operate on any property within the district men- tioned.* The addition, however, of the words " appurtenances," " thereunto belonging," &c., may possibly be deemed to extend the meaning more than if the same words were contained in a deed.' But the case of Anstee v. Nelms ^ was decided on special grounds, and does not confiict with the rule in Doe d. Browne V. Greening, &c. [It has been held in Allan v. \anmeter,'' that the meaning of terms in a will may be explained by parol, and no distinc- tion is taken between those cases where the primary meaning of the terms is sensible and those where it is not, with ref- erence to the circumstances of the testator. But, this case can- ' See Standen v. Standen, 3 Ves. Jun. 589. = 3 You. & Cal., 248. = Comfort 11. Mather, 3 W. & S. 450. * Doe(Z. Browne v. Greening, 3M. & Sel. 171 ; Doe d. Tyrrell «. Lyford, 4 ill. & Sel. 550. » Doe d. acre v. Langton, 3 Barn. & Ad. 680. « Ante, p. 73. ' 1 Met. Ky. 364. PEOPOSITION II. , 99 not be considered as having any authority except in precisely similar circumstances to those adjudicated upon in it. , [Evidence even of .the testator's intent has been received in some States, on the ground of explaining, but not qualifying, the terms in the will — a distinction correctly described by Judg9 Redfield^ as unintelligible.* It is doubtful whether Doyal V. Smith is law at the present day, or would be followed in any of the States. [Indeed, in the case of Betts v. Jackson,* parol evidence was excluded of the state of the circumstances of the testator's ' children, although such evidence, semble, would have been admitted in most other States. On the other hand, in the case of Pool V. Pool,* evidence was admitted to show the circum- stances of a legatee where the text of the will was quite sen- sible, with reference to surrounding circumstances. [Extrinsic evidence is not allowable to prove that the tes- tator on the particular occasion used a phrase or word in any sense different from its strict and primary import,' unless the meaning of the terms in the will is insensible with reference to the circumstances. This is the case of Doe d. Brown v. Brown.* Under a devise of copyholds, it was held that free- holds could not pass, since the testator had copyholds which could satisfy the terms of the devise. The testator had free- holds conveyed to him by the designation of copyholds. Yet, the devise was not extended to these. If, however, the testator had no copyholds, then evidence would, according to Sir J. Wi- gan's third proposition, be admissible to show that freeholds were regarded by the testator as copyholds. [Parol evidence, in short, is never admitted except from necessity. If the will is sensible with reference to extrinsic circumstances, no fulcrum is afforded for the adduction of parol testimony.'' If the primary meaning of the whole will does not square with the facts, then a secondary meaning will be adopted, to suit any phase of the testator's circumstances, or ' 3 vol. 47. ° Doyal i>. Smith, 38 G-a. 363 ; but, see Leigh e. Savidge, 1 McCarter, 134 ; Hearn v. Ross, 4 Harring, 46, ' 6 Wendell. ' . " 33 Ala., 145. <■ 3 Jarm. 359. ' 11 East, 441. ' Dcre d. Westlake, 4 B. & AM., 57. 100 PROPOSITION II. any hypotheses of his intention, in the order of their proba- bility, as determined by the construction.^ Therefore, if a be- qliegt suits one person more than another, parol "evidence is not always admissible in England, but is in America. See Horwood V. Griffith ; ^ Delmare v. Eobello.' If no correllation or apposition of the testator's circumstances will fit any -of the various secondary constructions tried hypothetically by the Court, more than some other subject or object, then, and then only, is parol evidence of the testator's intentions admissible.* [With respect to cases like that last referred to, when the description in the will suits one person more than an- other, and neither perfectly, it is doubtful whether parol evi- dence of the testator's intention would not b6 received here, except some time-honored rule of construction stood in the way and determined or defined the person. Indeed, the maxims Veritas nominis and falsa demonsi/ratio were doubtless Intended to raise conclusive, and not disputable, presumptions, to be themselves the sport of any parol evidence. ' [In Doe d. Chichester v. Oxenden,'every word of the clause in question could operate according to its primary m'eaning, without recourse to a secondary sense. Such a sense, therefore, or parol evidence thereof, could not be entertained by the Court. Tliis and similar cases are plainly distinguishable from those 'where parol evidence was received. In the latter class of decisions, the phrases under review would have been wholly inoperative but for the aid of parol. [When the words of the will can operate in the natural sense or by construction aided by the maxims '■'• falsa demons sbratio^'' " error nominis^'' etc., evidence cannot be received of f%cts showing a probability that the testator intended a pieculiar use of the terms. For instance, in Doe d. Tyrrell v. Lyford, ' the testator devised lands " at Sutton Wick, in the parish of Sutton Courtney, which he purchased of S." The Court re- jected extrinsic evidence- to prove that the testator intended to ■ Jeffries ». Mitchell, 30 Beav. 1^ ; 1 Jarman, 404. » 4 De G. M. & G., 708. = 1 Ves. Jr., 413 ; Hart v. Marks, 4 Brad. Sur. 161. * See Doe d. Hiscocks «. Hiscocks, 5 M. & W. 363, 'post, pi. 1S3. ' 3 Taunt, 147, ante, pi. 34. PROPOSITION n include otter lands not in the parish of SuttonS part of the land purchased of S.' [In Doe d. Preedy i). Holtom, a testator devi§ messuage or tenement, in Swalcliffe, wherein he t^v.^^ ~.r^«eT>»», with the offices, outhouses, barns, stables, and other edifices and buildings, yards and gardens to the' same adjoining, and all, the several closes or enclosed grounds, pieces and parcels of ground called and known by the names of " Cow-house," &c., with the appurtenances, part of the farm and lands then in his own occupation. He then devised to B. all other his heredita- ments in Swalcliffe (except what he had before devised to A.). The question was whether ;the devise to A. comprised two cot- tages adjoining the messuage, where the testator resided, and which he hadiseparated therefrom by a stone wall, and let off to tenants. It was held that the cottages passed to A., and that parol "evidence that the testator intended to devise them to B. was inadmissible.* [As a devise to the ■children of a living person as a clas's will comprise all bom previously to the testator's death, proof that the,propositus had no children at the date of the will is in- admissible as irrelevant. For he might have had children before testator's death. The devise, therefore, is capable of operating according to the primary signification, of the terms, and, con- sequently, an illegitimate child of the propositus, though bom at the date of the will, is incapable of taking under the devise. [In short, wherever a clause is construed not according to the primary meaning of the terms used, there must be an ab- solute impossibility of so applying it. Tit res magis valeat, therefore, it is interpreted in some other way. [The same rules as to the admissibility of extrinsic evi- dence prevail in general throughout the States.* [In New York, it has been repeatedly decided that ex- trinsic evidence is inadmissible to influe.nce the interpretation of a will the language of which is clear.* ' 4 Mau. & 8., 171. = 5 Nev. & M. 391. ' Johnson v. Johnson, 33 Ala, 637 ; Jackson v. Payne, 3 Met. (Ky.) 567. ' Banner J/. Storm, 1 Sandf. ch. 357 ; Wolfe v. Van Nostrand, 3 N. Y. (.3 Comst.) 436. 102 PEOPOSITIOIif IT. * [It was held, in Brearly v. Brearly,^ that when the inten- tion of a testator is sensible with reference to surrounding cir- cumstances, neither his situation nor that of his property will affect the constriiction of the will. [The case of Grant v. Grant* is open to some serious diffi-' culties. The terms of the will were, in their primary significa- tion, sensible with reference to surrounding circumstances. Why then should parol evidence be admitted at all in aid of the construction ? Even supposing that the testator's intention will otherwise be defeated, that is not the question. But non constat that the testator did not mean what he said. He might have taken professional advice as to the effect of a dis- position to his nephew, and, wishing to conciliate his wife and render her attentive to him during his last illness, made an ambiguous will, which he hoped would be securein the bosom of the law, and not in that of parol evidence. Of course, if a word has several different primary meanings, the question is different. But, certainly, until the decision referred to, a " nephew " was not supposed to comprise a relation by affinity. [A patent ambiguity or contradiction in terms may, some- times, be rendered innocuous by construction, though never by parol evidence.^ ' 1 Stockt., (N. T.) 31. ' 39 L. J. R. N. S., 372 ; Alb. Law Joum. vol. 3, p. 365. " See Lathrop v. Blake, 3 FoAer, 46. PROPOSITION in. Where there is nothmg m the context of a will^- from which it is qpparent that a testator has used the worok in which he has eaypressed himself in amy other thorn, their strict a/nd primary seme, hut his words, so interpreted, a/re insensilble,^ with reference to extrinsic circumstances, a Court of loAJO ma/y look into the extrinsic circmnstances of the case, to see whether the m^aming of the words he sensihle in am/y popula/r or secondary sense, of which, with. i:eference to these circumstances, they are capable. 51. This Proposition is proved by the cases incident- ally referred to, in considering the Seco];id Proposition.^ The most striking examples, perhaps, are those in which a popular or secondary interpretation has been put on the words child, son, and my e^ate, and other similar cases. Thus, the word child, though in strict construction it means a legitimmte offspring, may be applied to an illegHmiate offspring where the circunistances of the case make it impossible that the testator (who must have had some meaning) used, it in such a strict and primary sense.* ' The word ' insensible, ' as here used, is a word of art, which the reader ■will find in common use in reported cases. " Supra, pi. 34 et seq. ' Wilkinson «. Adam, 1 Ves. & B. 433; [Warner ». Warner, 15 Jur. 141;] Woodhouslee v. Dalrymple, 3 Mer. 419; Beachcroft «. Beachcroft, 1 Madd. 430;'Bayley v. Snelham, 1 Sim. & Stu. 78. [See observations on this case, 2 Jarm. Wills, 3nd ed. 198; Earl of Orford v. Churchill, 3 Ves. & B. 69 ; Pratt V. Mathew, 33 Beav. 338.] 104 PROPOSinoH- m. 52. So, son means an immediate descendant : where, however, with reference to extrinsic facts, it is impos- sible that the word can have been .used in such its proper sense, that construction of the word is, of absolute necessity, excluded; and the necessary in- ference, that the testator used the word in some un- proper or inaccurate sense,- lets in the inquiry, in what sense the testator used it.^ 53. So, property subject to a power is not, strictly speaking, Ms by whom the power is to be exercised. Now, suppose a testator having no real estate at the time of making his will, but having a power over the real estate of another, to devise his real estate over to A. Every devise of real estate being specific, the facts of such a case would exclude the persumption that the testator had used the word Ms in its proper sense, and would let in the secondary and only other inter- pretation of which the word under the circumstances is capable.^ 54. Other analogous cases might be cited.' 55. In Gm V. Shelley, Rolls, 28th January, 1831,* Elizabeth Merricks gave the residue of her real and per- sonal estate to her husband, James Mericks, for Hfe, and directed, that after his death the residue should be di- vided amongst certain classes of persons mentioned in her will, and added, " amongst whom I include the cMl- dren of the late Mary Gladman." Elizabeth Merricks died in the year 1817, and James Merricks died in the year 1820. The bill was filed by the trustees under the * Steede v. Berrier, 1 Frtem. ?93 & 477 ; 8 Vin. Abr. 310, pi. 9. ' (See ante, pi. 26, note) Lewis «. Llewellyn, 1 Turn. 104; Napier ■0. Napier, 1 Sim. 28 ; Sugden on Powers, chap. v. sect. 56, n. ' Keeves v. Brymer, 4 Ves. 693, and the cases there referred to ; Wilde's case, 6 Rep. 16 ; 8 Viner's Abr. 310, pi, 7. * (2 Buss. & Myl. 336.) PKOPOSITION IUj 105 will of Elizalaetli Merricks praying the directions of the Court in distributing the residue of her estate. The defendant, Charlotte Shelley, was an illegitimate child of Mary Gladman, born before marriage, and claimed a part of the residue as a person described in the will under the words " children of the late Mary Gladman^ The claim of Charlotte Shelley was opposed by the personal representatives of James Gladman, deceased, who was the only legitimate child born of Mary Glad- man. It was stated in the answer of Charlotte Shelley, and proved by the witnesses in the cause, that she was born before the marriage of Mary Gladman, and that the facts of her birth and illegitimacy, and of the subsequent marriage of her mother, and of the birth of James Gladman, and that Mary Gladman had but one legitimate child, were all known to the testatrix, who was on terms of intimacy with Mary Gladman from a period before the marriage until her death, and clothed and maintained Charlotte Shelley. Mr. Pem- berton and Mr. Wigram, for Charlotte Shelley, cited Woodhouslee v. Dalrymple, 2 Mer. 419, and contended that, as no state of circumstances existed before or at the date of the wiU, or could possibly arise after the date of the will, with reference to which the testatrix could have used the word " children " in its proper sense, the Court must look into the circumstances of the testatrix's family, and see whether any person had, by reputation, gained the name of a child of Mary Gladman, as otherwise the word ^^ children'''' in the vnll could not be satisfied. Mr. Bacon, for the rep- resentatives of James Gladman, cited Wilkinson v. Adam, 1 Ves. &, B. 422 ; Swaine v. Kennerley, ib. 471 ; and Hart v. Durand, 3 Anst. 684 ; and contended, . upon the authority of those cases, that legitimate and illegitimate children could not take together under 8 106 PROPOSITION in. tte general description of chUdren. Mr. Pemlberton, in reply, said, tliat the rule that children and illegitimate children could not take together under the general de- scription of children, applied only to cases in which the word was used to describe a class, and not where (as in the case before the Court) the word clearly de- scribed particular individuals ; 'that if, in Wilkinson v. Adam, the testator had survived his wife and married Ann Lewis, the legitimate children of that marriage would have taken jointly with the illegitimate chil- dren in whose favor the cause was decided ; 1 Ves. & B. 454 ; that Swaine v. Kennerley was distinguishable from the case before the Court, because it did not ap- pear that in that case the facts were known to the tes- tator ; and that Hart v, Durand did not apply, because the evidence in that case was tendered to prove tJie testator's intention to comprehend illegitimate children. The Master of the Eolls said, that if Swaine v. Ken- nerley and Hart v. Durand had not been distinguish- able from the case before him, he should have felt no hesitation in overruling them : and decreed that Char- lotte Shelley, though illegitimate, was entitled to share in the residue of the testatrix's estate jointly with the representative of James Gladman.^ [Parol evidence is inadmissible to contradict or vary a state- ment in any written document that is sensible in the primary signification of its terms, or to impose on it a sense which its terms do not imply.* Neither is parol evidence admissible to explain or control the legal operation of such a document or oi the intent of the parties in entering into it.* So far as the eon- ' [See Dover «. Alexander, 3 Hare, 383 ; Leigh ». Byron, 1 Sm. & Gif 486.] " Faro«. Maisteller, 3 Cranch, 10; McCulloch v. Girard, 4 Wash. C. Ot 289 ; vide Abbotts' Nat. Dig. 3 vol. p. 339, et seq. ' Kemmil v. Wilson, 4 "VVash. C. Ct. 308 ; Troy Iron & Nail Factory v. Coming, 1 Blatchf. 467 ; Anld «. Hepburn, 1 Cranch 0. Ot. 133. PROPOSITION III, 107 struction is concerned, the last position stated is strictly true. Neither can evidence of this intent be advanced for any other purpose, as, for instance, in a criminal proceeding for a libel, although evidence may be forthcoming in such a proceeding of an avowed intent to write a libel of a gross nature. Such evi- dence is irrelevant as regards the particular libel before the court, and can only be adduced on a charge of conspiracy or an attempt to provoke to a breach of the peace, or on some other crime not founded solely on the document. [Prior conversations are also inadmissible in aid of the con- struction.^ Even secondary evidence of a document can only relate to its terms and not to parol variations of it.^- [A document, however, does not preclude parol evidence to explain or corroborate a fact referred to in the instrument, un- less the evidence is offered in aid of the construction. Hence all latent ambiguities, as they relate to external facts, may be cleared up by parol,' and hence, also, the adepiption or satis- faction of legacies, if referred to ambiguously in a codicil, is •open to explanation by parol. [When once a latent ambiguity exists, parol evidence is ad- mitted to explain all the circumstances connected with it.^ Therefore, all evidence relating to a custom of any kind of trade,^ trade-marks, usages, entries, or abbreviations,® is admis- sible when the ambiguity is occas'ioned by se reference to such. [In Gray v. Harper,' conversations between parties at the time of the making of the contract in question, were held to be provable, in order to show that the parties used the terms in the ^ Hunt V. Rousmanier, 8 Wheat. 174; Uilpins v. Consequa, Pet. C. Ct. «5. ' Tayloe v. Biggs, 1 Pet'. 591 ; reversing, 2 Cranch C. Ct. 687 ; Keene v. Meade, 3 Pet. 1, 7 ; affirmiug s. c. sitb nom. Meade v. Keane, 3 Cranch C. Ct. 51. 'Atkinson v. Cummins, 9 How.*479, 486; 8 Bingh. 344; Bradley*. Washington, i&c. Steam Packet Co., 13 Pet. 89 ; reversing, 5 Cranch C. Ct. •393 ; Peisch v. Dickson, 1 Mas. 9 ; Pomeroy «. Manin, 3 Paine, 476. * Peisch «. Dickson, 1 Mas. 9. " Bradley v. Washington, &c. Steam Packet Co., 13 Pet. 89. « Salmon Falls Co. v. Goddard, 14 How. 446. ^ 1 Story C. Ct. 574. 108 PKOPOSITION III. written contract in a peculiar sense. The evidence is allowable^ in wills only in cases tinder propositions four and seven. [Writings, to be read together, in the United States, need not in terms refer to each other.^ jSemUe, the reference to an external document in the case of a will stands on the same footing, even though the document is unattested. [Legal presumptions are deemed to be of the nature of latent ambiguities, so far ^s to admit of parol proof of facts to rebut or prove them. [In cases of fraud, in like manner,^ parol evidence is admis- sible to prove or rebut the charge of fraud.^ [The identity of parties to a deed is provable to the jury by parol,* so may the actual delivery be, thus proved, even though the testimony vary from the date alleged in the deed.* The admission of parol evidence with respect to identifying the subject or object of a gift, is, in theory, really founded on the fact that the subject and object of a gift, as well as of a con- tract, are part of the res gestae. [A perfect description of the subject or object is not neces- sary. All that the court requires is such a specification as will acquaint it of the testator's intention.* It will then reject any erroneous additions, as surplusage or false demonstration. This is very readily done in the case of corporations whose long names are apt to be "mistaken. But, if the name is wholly er* rone&us, and is not a pet or nick-name, the gift is usually void.' [The case of Thomas v. Stevens * was very like that of Beau- mont V. Fell.' The bequest was to Cornelia Thompson. Caro- line Thomas was held entitled to it on parol evidence that she was the person intended. [The nature of a testamentary disposition requires that it ' Rutland & Burlington R. R. Co. v. Crocker, 29 Vt. 549 ; see Bell ». Bruen, 1 How. 169. " Susquehanna Bridge & Bank Co. v. Evans, 4 Wash. C. Ct. 480. " Bottomley •o. United States, 1 Story 0. Ct. 135, 153. , * Dunn V. Gaines, 1 McLean, 321. i ' Majburry v. Brien, 15 Pet. 21. • Stevens ®. Powys, 1 De G. & J. 24. ' Andrews «. Dobson, 1 Cox, 425. ' 4 John Ch. 607. See ConoUy «. Paroon, 1 Paige, 291 ; Trustees e. Peas^ lee, 15 N. Hamp. 817. " 2 P. Wms. 140. PROPOSITION III. ■ 109 should not be construed with the strictness appropriate to con- tracts. This view of the case probably suggested to the ecclesias- tical courts originally the expediency of giving probate to wills where the testator, being in extremis, was unable to articulate distinctly, but yet sufficiently indicated his intention. Any such intimation is not deprived by tke statute of frauds of its original efficacy. There is, therefore, real ground for the doc- trine in Beaumont v. Fell,^ that imperfect descriptions of a l#ga- atee are more easily remedied by parol than similar defects in devises of realty. [But, it may be asked when the stati;ite of wills allowed de- vises to be made of land, was not realty thus subjected to the same latitude of testamentary construction' as personalty pre- viously was ? This view of the case is arguable, but does not affect th.e doctrine that the statutory requisitions as to wills of personalty made no change in the latitude of designation pre- viously allowed to bequests. That such latitude existed is probable in the very highest degree, being so spoken of in the cases from the earliest date down to the present time, while, from the contrast pointed out between bequests and devises, it seems probable that. devises of trust estates were more strictly construed, in Chancery, than beqilests of personalty were by the ecclesiastical courts. [A will that is found 'to contain an erroneous description of the testator's property, or of the objects of his bounty, may be compared to the key of a bureau presented as a donatio mortis causa, but which is found not to fit the lock of the particular 1)ureau described by the testator. If it does open the drawer specified, no parol evidence can be received to the effect that the testator's words do not exactly indicate his intention. But, if it is not the key of the article mentioned by him, but is the key of another similar one belonging to the testator, the courts ■would, as a rule, hold that the error of the testator related to the bureau and not to the .key which he had before his eyes. The escritoire, therefore, which the key would unlock, would be deemed to be the one intended by the testator. If there were a dozen others, however, belonging to the testator, all of which could be opened by the key, then, the bureau whose lock most nearly resembled the conformation of the key, would be • 2 P. Wms. 140 ; pi. 183, 10 PEOPOSITIOTJ III. eld to be the subject of the^ testamentory disposition. If all be thirteen bureaus were exactly alike, then, the donee of the ;ey should get his choice ut res magis valeat, or else the declar- tions of the testator should be resorted to, owing to the absolute mpossibility of there being any other evidence as to which of he bureaus the testator intended to bequeath. [All the ambiguities here mentioned relate to the subject f a gift. But, mutatis mutandis, the same arguments are ap- licable to an ambiguity respecting the person of the beneficiary, n the latter case, the description of the donee is the key. [If any part of the description suits the claimant, this, ffords a fulcrum for the adduction of parol evidence to prove he identity of the claimant with the person intended. For astance. Sir John Strange, in citing a case where the executor ppointed was " my nephew, Kobert New," which, in the en- ;rossing, was written "Nnne," and parol evidence of this fact ?^as admitted of the error, observes that, if the phrase " my ephew " were absent, parol evidence could not be given, and he donation would have been void.^ This, however, it must be aid, is doubtful, especially as regards a bequest of personalty, lisnomers, indeed, of any kind, are, at the present day, rarely a,tal in wills.* [The general ground on which the admission of parol evi- ence in aid of testamentary construction rests is correctly tated in "Whilden v. "Whilden,' to be the fact that otherwise, the ?ill would be so far inoperative. If the will can, by possibility, lave any effect independently of parol, then, such evidence lever can be admitted. Even a secondary . meaning of the srms will not be resorted to except where the primary meaning f the words would be insensible.* But, as already stated, be question, what is the primary meaning, of a word, is an ex-^ 3nsive one. It has lately been held that a nephew by mar- lage is a nephew even in the primary sense of that term.^ [When an illegitimate child claims under a gift to children, liere being none of these, parol evidence is admissible to show ' See Hampshire «. Pierce, 3 Yes., Sea. 218 ; Holton ■o.White, 3 Zab. 330 ; ?^intley v. Kaim, 83 N. H. 368 ; Brownfield ». Brownfield, 30 Penn. St. 55. " See Miller v. Travers, 1 Moore & Scott, 343 ; s. c.,. 8 Bing. 344 ; pi. 147, 181. » Riley, Ch. 303. ■■ Pell «. Ball, Spear's Oh. 48. ' Grant v. Grant, 39 L. J. R. N. 8. 273. PROPOSITION III. Ill that' he has been reputed to he the child of the person named,^ hut the testator's intention to make him a beneficiary, ^ cannot be thus proved. Williams^ considers that the case cited has been overruled.^ It seems to rest on weak founda- tions.* An illegitimate child in ventre sa mere may take, though it then has no name by repute, provided its right is not made dependent upon any. question of paternity.* [The principle on which the admissibility of parol in aid of . testamentary interpretation rests, is the same as that which admits of like evidence to rebut a legal presumption. A latent ambiguity is necessarily created by parol, wherever the will does not fit the surrounding circumstances. Necessitas non hahet legem. Hence, parol explanations are allowed ut res magis valeat, as much to adapt surrounding circumstances to the will, as the will to the circumstances of the case. It is not strange that such a rule of evidence has prevailed. But, it was certainly contrary to fundamental principle to admit originally of parol to rebut a legal presumption, since rules of presump- tion are, at least, as strong as rules of testamentary construc- tion against which parol is not allowed to prevail. However, the law on this«point is completely settled. [The principle on which parol evidence is admissible, appears to be not so much to put the court in the position of the testator — for no evidence is admissible in the cases just speci- fied to show that the testator intended to use words in a peculiar, sense — ^but, rather to inform the court of things generally known — of matters of which, when made known to it, it will take judicial cognizance so far as not to require special proof that the testator did, in point of fact, dictate his will with ref- erence to the usage in question. The principle, then, on which the admissibility of parol rests, is similar to that which is at the foundation of judicial cognizance or notice.* ' Beachcroft ». Beachcroft, 1 Mad. 430. » 3 Exrs., 990, in note. » Overhill's Trust, 1 Sm. & G. 363. * See, however, 3 Redfield, 35, note. ' See Gordon v. Gordon, 1 Mer. 141, 148, overruling Metham «. Duke of Devon, 1 P. Wms. 539. ' See Greenleaf on Ev., 1st vol. p. 340, and 13th ed. G.; Hackensmitb V. Slusher, 26 MisBOU. (5 Jones), 237; Cresson's App., 30 Penn. St. 437. 112 PROPOSITION ni. [The function of parol evidence in aid of the construction is to render the terms of the will itself intelligible but not to add to them.^ [Extrinsic evidence is never admissible in respect to the vfords used* by the testator, but only in respect to the sense in which the words in the will were used by him. It is only as to the meaning of the terms used and not as to the terms them- selves that any inquiry can be instituted by the court respect- ing the testator's intention ; and it is only in cases falling under propositions three, five, and seven, that parol evidence, even on this limited area, is admissible. [Before admitting parol evidence in aid of the construction, it must be clear to the court that the words used are susceptible- of some sense that is generally known, at least in the testator's neighborhood, and the meaning proved to have been attributed to the terms by the testator must not be inconsistent with the sense which the court a priori, and before the adduction of proof, would consider the language in the will to be susceptible.* In other words, a totally absurd meaning cannot be proved. But a term in itself indifferent may be proved to mean any- thing, if custom so warrants. , Thus the abbreviation " mod." may be proved to mean " model." ' [False designation is to be distinguished from false demon- stration. A gift to John Brown, the donee's name being Joseph Brown, is an instance of the former kind. A gift to Joseph Brown, of Brownstown, when his residence is Castlerock, is an example of the latter class. Parol evidence in aid of the con- struction is usually admissible in the latter cases to eliminate the erroneous surplusage, but not to show that it was John Brown that was intended, when the name of the donee in the will was Joseph Brown, even though John Brown lived in Brownstown. This general rule, however, has suffered serious encroachments. [Sometimes part of the designation applies to several persons equally, while the remainder of the description applies to none of them. For instance, in the case of Still v. Hoste,* the be- quest was to Sophia Still, daughter of Peter Still. He had two daughters, Selina and Mary Ann, but no Sophia. The extrinsic ' Miller v Travers, 8 Bing. 324. ° Webster v. Hodgkins, 5 Foster, 138. = Appendix, No. 1. ' 6 Madd. 193. PROPOSITION III. 113 evidence showed Selina to be the person intended by the testator. Parol evidence of intent seems to be admissible in such cases. [In cases such as Delmare v. Eobello/ when the whole descrip- tion of the donee does not square with the facts there is little doubt that parol evidence ought to be received. The disposi- tion is insensible with reference to the testator's circumstances, it, therefore, clearly falls within the principle of proposition three, and may be .elucidated by parol, uidess we accept in its integrity the maxim Veritas norninis tollit errorem descrvp- tionis. The case of Doe d. Chavalier v. Uthwaite,^ however, shows that this maxim does not prevent the application of parol. In Andrews v. Dobson,^ there was a mistake doubtless on the part of the testator. But, as his error was not apparent on the face of the wiU, it could not be remedied in equity. If plaintiff is not designated by any part of the description of the donee, parol evidence is not admissible to show whom or what the testator intended. In other words, the net result of the cases appears to be this. Parol evidence can show that the name in the will was the usual pet or nick-name given to the donee by the testator, but not that it was given him for the first time at the making of the will, or that it was inserted by mis- take for his real name, or tliat received by him in baptism. [ Yeritas norninis tollit errorem descriptionis. In the case of Doe d. Chevalier v. Uthwaite, the devise was to the first son of John H. and his issue, remainder to Stokeham H., second son of John H., for life, remainder to his sons and ■daug'hters in strict settlement, remainder to John, the third son of John H., and his issue in like manner. John, however, was the second son, while Stokeham was the third. Parol evi- dence was admitted by the Court of Error to show whether the mistake was in the name or in the description. The Court of Common Pleas had held that Stokeham was the person en- titled, according to the maxim Veritas norninis, &c. This maxim, like every rule of construction, is applicable only where the context is not adverse. But if the context itself points to an error in the name, and not in the description, the maxim ' PI. 30; see BlundeUa. Gladstone, 1 Phillips Ch. 379. = 3 Moore, 304. = 1 Cox, 425. 114 , PEOPOSITION III. will not be applied. Every rule of construction bends to the context, but rules of evidence are not affected by tbe context. The testator's intention never can preclude a law of evidence, if applicable. [In Thomas d. Evans v. Thomas,* the evidence was rejected as to what the testator declared, previous to the making of the will, to be his intention respecting the claimant, to whom part of the description applied, though the court considered that if the declarations had been cotemporaneous with the making of the will, they would have been conclusive in favor of Eleanor Evans. There being no evidence properly so called ^s to which of the two women was intended by the testator, the gift was held void. In this case, be it observed, the evidence was ad- mitted. The weight of evidence, of course, is a wholly differ- ent question from its admissibility. Parol evidence is always admissible to explain whether the error is in the name or the description. The case of Thomas d. Evans v. Thomas would probably be not at all followed at the present day. The court will now incline the balance to any superiority of evi- dence, however slight. [As to errors of name an,d not of description, a leading case is that of Bradshaw -u. Bradshaw.^ There a devise in trust for Eol^ert Blagrove Bradshaw, the second son of the testator's daughter, was held to 'enure to the benefit of her second son," though his name was not Egbert, but Henry, while her eldest son was named Robert. The court considered that the error was in the name, and not in the description. The court formed this opinion partly from the extrinsic evidence adduced, and partly from the frame of the will, the remainder in which was to the third and other sons of his daughter, thereby showing that the name of the first son was omitted inten- tionally.' [Jarman considers^ that where part of a description ap- pears to suit one person, and part another, the designation of each must be so accurate as that, if the other were out of the way, he could have established a title under the will. This is ' PI. 140. ^ 2 You. & C. 7S ; 1 Jamnan, 378. " See, however, Langston «. Langston, 8 Bligh. N. S. 167 ; s. c. 3 CI. & Fin. 194. '1 vol. 376. PROPOSITION III. 115 true. But that title might be established by parol evidence adduced in aid of the interpretation. [Any description that might be helped by parol does not become null and void, because parol evidence is also required to negative the description of somebody else. A devise to my brother's son, who lives at Norwich, is good, even though the brother had seven sons and none of them lived at, but only near, Norwich. Though no nephew lived there, parol evidence would be admissible to show, first, that*it was a brother's son ; * and, secondly, a particular son that was intended who resided near Norwich. Jarman seems inclined to hold that, as the son could not prove his title to the gift without parol, if there was no addition of the clause as to residence at Norwich, so he could not now negative the claim of his other brothers, who would be equally Jwrs de combat as regarded him. The gift would,, therefore, be void for uncertainty. Jarman, indeed, would probably not accept this inference frooi his proposi- tion. But his postulate seems to admit of this deduction. [Parol evidence under proposition three is really referrable to the rule admitting parol evidence of res gestw. For the subject and object of a gift — in other words, the circumstances of the testator — are part of the res gestae. Construction, properly so called, is confined to the willing and disposing element. Evidence respecting- the circumstances of the testa- tor is thus not strictly a question of construction. But evi- dence of intent, under proposition seven, differs much in principle from evidence under propositions three or five. For, under proposition seven, the evidence is not of the neces-- sary res gestce, but of a particular feature of the gifts made 2>ro hac vice, nuncupatively, and opening a wide door for perjury. [Jarman ^ considers that there is no difference in principle between cases where part of the description suits one person, and part another ; and those where the ambiguity is owing to the plurality of persons to whom the description is applicable. There is, however, this distinction between the two classes of cases. The former raise diflaculties which are frequently ones of construotion, for which the common law has provided ' 1 vol. 378. 116 PKOPOSITIOK III. various rules. Of these the maxims erromominis, &(i., falsa demonstratio, &c., are samples. But, as to the latter class, the ambiguity arises not at all from the construction, but wholly from matters dehors the will. In these cases the description «uits any of the claimants equally well. [Parol evidence of intention, therefore, is in the abstract necessary to determine which of the latter is meant. But under propositions three or five the question is properly one to"" be de- termined on evidence of facts, and not of the testator's inten- tion. [The primary reason why parol evidence is admissible in these cases aj)pears to be, not to distinguish the one party from the other, but to show, ut res magis valeat, that the description in the will is approximately correct, or sufficiently accurate for a practical description. In showing this the donee may then be indirectly distinguished from some other person, to whom a part of the description applies. But, where the description in the will exactly suits two or more persons or things, the •difficulty is always wholly one of fact, or res gestcB, and not at all of construction. [It' had been decided in Thomas v. Thomas, Doe v. Huthwaite, and Bradshaw v. Bradshaw, that parol evidence of testator's intention could be received, where part of the devise was applicable to one person, and part to another. But in Doe d. Hiscocks v. Hiscocks,^ Lord Abinger considered that those cases had been overruled by Miller v. Travers.^ At all events, parol evidence of intention will not be received in such cases, if the question can be disposed of either by the context or by a rule of construction such as Veritas nominis, falsa demonstratio, &c. But if there is nothing of law to turn the balance one way or the other, the case certainly seems to fall? in point of principle and substahce, under proposition seven The characters in the will are, as it were, cypher abbreviations, or foreign words equally applicable — though not for the same reasons — to two or more subjects or objects. The applicability of the symbols being the same, the relations of the things de- noted to the text of the will may be regarded as identical, and to call, therefore, for parol evidence of the testator's inten-' tion. ' PI. 183. = Id. PEOPOSITION III. 117 [The rules of construction by aid of parol evidence, ■where part of a devise is applicable to one person, and part to another, are admirably laid down by Lord Abinger, -in Doe d. Hiscocks V. Hiscocks.^ In siich eases he thought the evidence can relate only to the circumstances of the testator, and not to his intention — that, in other words, cases of this nature fall under proposition three and not proposition seven. [In Doe d. Hiscocks v. Hiscocks, Lord Abinger admitted parol evidence of the surrounding circumstances, but not of the testator's declarations prior or subsequent to the will. This distinction between parol evidence of facts-*and of inten- tion is supported by general pi'inciple, where the devise applies to one person more than to another. But where the words of the will equally apply to two persons or things, parol evidence of intention is admissible, and is often indispensable. In other words, the precise person or thing intended by the testator might not be otherwise proved. For, if there are two John Jones', the testator must have always called each by that name, and his intention cannot possibly be proved in most cases by his acts dehors those connected with the making of the will. [In most of the States parol evidence will not be accepted in aid of the construction, except under the same circumstances as in England.* In ex {parte Hornby^ the surrogate of New York seemed to think the American code of evidence would admit of parol evidence of the testator's intentions in cases where the English courts would reject it. This is undoubted;, while, as regards cases under proposition three, the courts' here appear not to be so strict in 'defining such cases as the English decisions show. [Though the American courts, as a general rule, follow the English principles and cases, yet, in Delaware, parol evidence is received in respect* of the testator's preferences and ' affec- tions. But, in New York, such evidence is admitted only in ' 5 Mees & W. 363 ; pi. 183. » AUen 0. Allen, 18 How. U. S. 385. " % Bradf. Sur. 430. See Reno ». Davis, 4 Hen. & Munf. 388. • Redfield, vol. 3, p. 506. 118 pROPOSiTioisr III. cases of latent ambiguity, or to rebut a legal presumption.^ This is true also of most if not all of the other States.^ It has been beld in IS'ew York, in Mann v. Mann,^ Hyatt v. Pugsley,^ and several other cases, that the state of the testator's property -cannot be shown except for the purpose of -clearing up a latent ambiguity.^ This proposition Judge Eedfield denies.* It is in- consistent, certainly, with several American cases. But it is doubtful whether those decisions would be now followed. The admission of parol evidence in aid of the construction of wills is becoming daily more and more strictly watched. [It cannot be too distinctly remembered that the rules re- specting the admissibility of parol evidence in aid of the con- struction are founded upon the absolute necessity, (in the ab- stract), of adducing such evidence to prevent the gift from being void for uncertainty. It is equally to be remembered that even when parol evidence becomes necessary, as little as possible of it is accepted by the court. But if, according to the general rules of evidence, parol' testimony is admissible, it ■cannot be rejected in the particular case, (in the concrete,) merely because special facts adduced under propositions three and five leave no doubt in the mind of the court as to who or what was intended by the testator. For instance, under a de- vise to John Brown, the testator's nephew, there may be no such person but only James and Charles Brown. Here parol evidence is admissible, first, under proposition three, to apply the . will to either James or Charles, and, secondly, iinder proposition seven, of the testator's intent, even though it ra.&j have been already proved by the course of dealing and habits of the testator that James was the person intended. Proof that the testator intended Charles and not James to be the beneficiary, may then defeat all the evidence adduced under proposition three. ' Id. Mann v. Mann, 1 Johns. Ch. 231 ; s. c. affirmed 14 Johns. 1 : Jackson ». Sill, 11 Johns. 301 ; Massaker «. Massaker, 3 Beas. 364. ^ See cmte, p. 51. » 33 Barb. 385. * Tole «. Hardy, 6 Cow. 833. ' 3 vol. 506. " G-reenleafonEv. 1 vol. 337. See Crocker ». Crocker," 11 Pick. 257 Lamb ». Lamb, ib. 375, per Shaw, 0. J. PROPOSITION III. 119 [Evidence of matters preliminary to the will, as the direc- tions given to the scrivener,^ is not admissible in aid ^of the interpretation, except under proposition seven. Debates in the Legislature fdr a like reason are not available in aid of the con- struction of a statute. The speakers may have changed their mind before the bill was put to the vote. A testator in like manner, although his simple volition is competent to lead to the making of any yill he pleases, may yet change his mind be- fore his testamentary act is complete. It is the finished writ- ten document, and not the intention, that constitutes the proper evidence of the will. The simple elements have no trace in , the compound. [In Quincey v. Quincey,^ parol evidence was admitted to show that a reference in a codicil to a will of 1833 was a mis- take, (that will being supposed to be destroyed,) for a will of 1837. As parol evidence is admissible of the res gestm of a will, so, pari ratione the same reference seems admissible as to ^ reference to the res gestae of a prior will or codicil. [Parol evidence of the circumstances of a testator, but not of his intention, is admissible to show that repeated legacies are or are not cumulative.* This admission is contrary to principle, for the ambiguity is patent as one of construction. The civil law admitted parol evidence, however, even of intention, in such cases.^ Mr. Hawkins^ considers that where the presump- tion relates to a will and codicil, and not merely to one instru- ment, a rule of construction and not a mere legal presumption stands in the way of admitting parol evidence. But it is not likely the courts here would hold the difficulties against the reception of parol to be varied by the fact that the whole testamentary record of the intention of the testator was contained in two documents and not in one. There is, however, greater dif- ficulty on principle in admitting parol evidence in such cases than where a debtor gives a legacy to his creditor. Yet, in the latter class of cases parol evidence is excluded,* although the question is wholly a presumption and raised by an extrin- ' Brown v. Selmyn Cas, temp. Talbot 240 ; s. «. H. L. 3 Br. P. C. 607. ' 11 Jur. 111. ' Wilson V. O'Leary, 20 W. E. 28 ; Osborne v. Duke of Leeds, 5 Ves. 369, 380. * Hurst v. Beach, 5 Madd. 351. ' P. 305. » Fowler v. Fowler, 3 P. Wms. 353-4; Eaton «. Benton, 2 Hill (K Y.), 576 ; see, contra, however, Williams v. Crary, 4 Wendell 443. 120 PKOPOSITION III. sic or latent ambiguity, and is not furnished by the context, as is the case in a will giving repetitive legacies. [Parol evidence is admissible that a legacy by a cred- itor to a debtor was or was not intended by the testator to be a release of the debt, just as such evidence is admissible in the case of cumulative legacies. But, the declarations of the testator, cannot, in England, be brought in by a side-wind on the ground that they are evidence of the release of the debt.^ Such evidence would be no answer to an action by the testator's executors, for such release would be without consideration. In the converse case q£ a legacy by the debtor to the creditor, there seems to be more ground for adducing direct evidence of intention, inasmuch as the will may be considered as part of the res gestae of pay- ment. The will, with all its surroundings, is evidence in an action by the creditor against the testator's executor. If the evidence is thus admissible for one purpose, it ought to be received also in aid of the construction of the will itself, as respects the question of satisfaction, since that questiori is, ex kypothesi, merely one of presumption, the will not being explicit on the point. [Semhle, parol evidence is admissible in some parts of the Uni- ted States in all the foregoing cases,^ as also to show that the tes- tator intended to make his land the primary fund for the payment of his debts. At least such evidence has been admitted ' to show the state of the testator's property in order to determine whether a legacy has been charged on land or not. If adduced for such a purpose, similar evidence can doubtless also show that the land was to be the sole fund for the payment of debts and leg- acies. This is an extreme to which the principle of Dey t). Dey will hardly be pushed. The case is suspicious. [In Ongley i*. Chambers,^ the devise was of the rectory or , parsonage of M. with the messuages, lands, tenements, tithes, hereditaments, and all and singular other the premises thereunto belonging, with all and every of their rights, members and appurtenances. It was held that the lands and a messuage which had been uniformly held with the parsonage for two cen- ' See contra, Blond v. Blinkinbeard, 8 B. Mod., 397. = See 3 Story Eq. Jur. § 1119-1133, and the cases there cited. ' Dey V. Dey, 4 C. E. Green, 137. * 8 Moore, 665. PEOPOSITION in. 121 tunes previously, and had been so purchased by the testator with the parsonage, passed under the devise. The leases and other intrinsic evidence were resorted to, in order to identify the parcels. Lord Gifford 0. J., distinguished the case from Doe d. Brown and others, where the question was not as in this case parcel or no parcel, but related to. a property not comprised within the terms of the gift. Indeed the question parcel or no parcel is one of fact to be determined by a jury, and not one of construction, except that the court ma-y see enough in the writ- ten documents before it not to direct an issue to try the question. [Where there is a direction to raise a certain sum out of rents and profits, parol evidence has been received as to the state of the testator's property and value of the rents, in order to determine whether the charge implied a power of sale. This inquiry is often very necessary where the interest is a lease- hold subject to renewal fines.^ Parol evidence of the tes- tator's circumstances is also 'received in the United States to show that he intended to charge a legacy on land.^ There is, no doubt, some ground for distinguishing between this case and Allen 1). Backhouse, for though every legatee is a mere volun- teer, and cannot as such put in motion the general equitable powers of the court, yet, where the penalty for not paying the charge is a forfeiture of the whole interest, equity will as a rule jtelieve by ordering a sale ; not by reason of the testator's charge, but in order to preserve the subject matter of the gift. [Parol evidence is admissible to show if land is wild, in order that the court may determine whether a fee passed or not under the Massachusetts law.' This evidence, howeverj, is really rather to identify the parcels, than in aid of the construction. [Under both contracts and wills, parol evidence is always admissible to identify the parties or to prove a custom. Extrin- sic evidence is also admissible to show that the contra,ct or gift is void as illegal, or that there is a misrecital of misdescription in the document,^ since the reference being to an external ' Allan t. Backhouse, 3 Ves. & Beam.. 65. » Dey v. Dey, 4 0. E. Green, isl ' Sargent ®. Towne, 10 Mass. 303.. * Quincey ®. Quinceyj 11 Jur. III. 9 122 PROPOSITION III. thing, the ambiguity thus occasioned is latent. Kelevant cotemporaneous documents, however, can be adduced in aid of the interpretation of contracts, while such evidence is as inad- missible as parol in respect to wills,* unless the writings are executed as wills, and not merely signed by the testator. [About the same latitude has been allowed to parol evidence to describe tlie metes and bounds of parcels in questions under contracts, as when a will is the subject of construction.* [It is thus perfectly clear that though wills and contracts are at law open to the same principles and practice of evidence, with the exception of extrinsic written documents, yet, as a matter of fact, the various usages and nomenclature of trade afford more numerous loop-holes for the adduction of parol testimony than are available in the case of a will. The cases, however, do not show that wills in re are, as a rule, more rigidly guarded by the courts iu respect to the adduction of this kind of evidence. [In Winkley v. Kaime,' the devise was of " thirty acres more' or less, in lot 37, in 2d division in Barnstead." There was no such lot as 37 in the 2d division in Barnstead ; but there was lot I^o. 97 in that division, a part of which belonge to the testator. It was held that parol evidence was admissible .to explain the latent ambiguity. [A testator devised all his messuages and lands in the parish of D. Part of his land lay' in the parish of W. . Parol evi- dence was admitted to show that at the date of the will all the testator's lands w:ere supposed to be ia the parish of D.* Com- munis error faoit jus. [In Allen v. Lyons,^ the devise was of a house and lot, in Fourth street, Philadelphia. The testator had no property in Fourth street, but had a house and lot in Third street. Parol testimony was admitted to explain the de- fective description. In such a case as this, be it remembered, parol evidence of the testator's intent could not be received. This is never allowed except in cases falling strictly under Proposition Seven. All that could be proved in a case like ' BeU V. Bruen, 17 Pet. 161. * See Doe d. Freeland, v. Burt, 1 T. R. 701 ; Brown v. Slater, 16 Conn. 192; Farrar v. Stackpoole, 6 Greenleaf, 154. » 33 N. H. 268. " Anstee v. Nelms, 3.8 Eng. L. & Eq. 314. » 3 Wash. C. C. 475. PROPOSITION III. 123 that of Allen v. Lyons is, that the testator had no pr6perty in Fourth street, but" that he had property in Third street corres- ponding with part of the description in the devise, yiz. : con- sisting of a house and lot. It would then be a question for the court to decide whether the description was sufficient to pass any, and, if any, what particular property, of the testator. In all such instances, since it is extremely unlikely that the testa- tor did not mean to pass an interest at all, that part of his prop- erty which comes nearest to the description wiU in most cases be deemed to pass. [A general devise of lands will pass leaseholds if the testa- tor has no freeholds to give effect to the disposition. Such a devise may also, in other instances, operate as an execution of a power ; if otherwise, it will have no force. [So a devise of lands, stated to be situate in a certain district, may extend to* lands situate elsewhere ; if, otherwise, the gift would be nugatory.^ [For the same reason a specific bequest of stock in the pub- lic funds has been applied to stock of another denomination, in which alone the testator had stock when he made the bequest.^ [Rents received by the testator, but labelled " rents," and set apart for his wife, passed under a devise to her of rents in arrear, although there was rent in arrear, and the bequest could be thus satisfied without recourse to extrinsic evidence.* [Declarations of a testa,tor are admissible in respect of cases under proposition thrSe, when the declarations are not of his intention with respect to the fra9iing of his will, but relate to the proof of circumstances from which the intent may be in- ferred. * [The distinction between applying the provisions in the will according- to their primary sense and interpreting them in a different sense is obvious enough. Parol evidence is always admissible for the former purpose. Indeed, there is no limit to ' Allen ». Lyons, 2 Wash. C. C. 475; Doe v. Roberts, 5 B. & Aid. 407. See, however, Miller ». Travers, 1 M. & Scott, 343; s. c. 8 Bing. 244. " Pqnnerau v. Poyntz, 1 Bro. C. 0. 472,. Perkins' ed. 480, note a. See, however, Boys «. Williams, 3 Sim. 573. = Wadsworth v. Ruggles, 6" Pick. 68. * G-reenleaf on Evidence, § 291. 124 PROPOSITION III. the admission of parol, if it be, relevent and not adduced for the purpose of varying the construction put upon the will ac- cording to the ordinary rules of law and grammar. In such cases, says Sir William Grant, " Nothing is offered in explana- tion of the will or in addition to it. The evidence is only to ascertain what is included in the description which the testalior has given of the thing devised." ^ [If a testator devises the house he lives in' or the one he built, or the one he enlarged, or bought from A, parol evidence is necessary to show what house he lived in, bought, repaired, or bought from A. So, with respect to land and other property, specifically given in the will. The evidence is necessary to con- nect the property with the public maps and surveys which the court will require as legal evidences of boundaries. The evi- dence will likewise identify the subject of the gift and separate it from adjacent property from which it could not otherwise be readily distinguished. [In Sanford v. Kaikes,* a testator by codicil devised as fol- lows : " I give the house iu Seymour Place which I have given a memorandum of agreement to purchase, (and which is to be paid for out of timber, which I have ordered to be cut down), to the Kev. John Sanford." The testator had previous- ly contracted for the purchase of a house in Seymour Place for £7,350, and had two days after the contract given an order in writing to his steward to cut down timber in a particular estate to the amount of £10,000. The house, of course, was identified by parol, which connected the -contract to purchase with certain premises in the square. The heir, however, contended that as tlie codicil did not refer to any timber in particular, it was void for uncertainty and could not be rectified by parol. He relied most on the doctrine that a will in order to incorporate another document, should refer to it specifically and with sufficient marks of identification, witliout recourse to parol aid. On these points Sir William Grant said in words which admit of no amendment, " I had always understood that where the subject of a devise was described by reference to some intrinsic fact, it was not * Sanford v. Raikes, 1 Mer. 646 ; ante, p. 63. ' Doe d. Clements v. Collins, 2 Dum. and East, 498. = 1 Mer. 646. PBOPOSITION III. 125 merely competent, but necessary, to admit extrinsic evidence to ascertain the fact ; and through that medium to ascertain the subject of the devise. I do not know what this has to do with cases where there is a reference to some paper which is to make part of the will. There it may be considered that the will itself must specify the paper that is to be incorporated into it. Here the question is not upon the devise, b\it upon the subject of it. Where there is a devise of the estate purchased of A, or of the farm in the occupation of B, nobody can tell w;hat is given, un- til it is shown by extrinsic evidence, what.estate it was that was purchased of A, or that was in the occupation of B. In this case the direction with regard to the payment for the house amounted in effect to a devise of so 'much of the produce of the timber ordered to be cut down, as should be sufficient to pay for the house. "What is there in the fact here referred to, namely, an antecedent order for cutting down timber, that makes it less a subject of extrinsic evidence than such a one as I have alluded to. The moment it is shown that it was a given number of trees growing in such a place or £10,000 worth in value of the timber, on such an estate, that the testator had ordered to be cut down, the subject of the devise is rendered as certain as if the number, value, or situation of the trees had been specified in the will." [The gist of these observations of the Master of the EoUs is that description of the parcels is not any admission of parol m aid of the construction, and that parcels may be described by ante-, cedent orders or contracts relating to them as well, as by pres- ent and obvious marks of identification. Both classes of crite- ria alike mustbe proved by parol. The contention on the part of the heir was that a document to be incorporated in a docu- ment must be expressly so, and that a ligamen cannot be raised by parol. This is true.^ But, as all the marks of identification of any one thing are innumerable, it cannot be necessary -to enu- merate them all. Any one or more marks which will lead to the identification of the thing are sufficient. The timber, for in- stance, in Sanford v.-Eaikes was described as a portion of the trees growing on a particular estate. Id oertum est, quod cerium reddi potest. Shylock himself could not avoid cutting down more than was necessary. The house too wa,s sufficiently iden- ' See Boydell v. Dfummond, 11 East, 141. 126 PROPOSITION , III. tified by an account of its history. All description is only ap- proximate. If the will affords the major premiss of the syllo- gism, the minor can be, raised by parol. For instance, le't lis sup- pose that a testator devises all his lands im the parish of A to B. Parol evidence is admissible to show what lands the testator had in the parish of A. Therefore, these latter pass to B not by parol, but by the devise. In like manner if the testator devises to B all the houses purchased by him from A, parol evidence is admissible to show what houses were thus purchased from A. This case, which is; that of Sanford v. Eaites, is not in the least distinguishable from the instance last put. In both cases alike the parcels can only be identified by parol. That the dis- tinguishing mark is in the one case a present event and in the other a past one, does not affect the question of bridging the difficulty over by parol. " My house that was painted red last year," ought to be as capable of being identified by parol as " my house that is now painted brown." " The house wherein I resided last year," is as good a description, so far as parol is concerned as " the house wherein I now reside." So, the house which I bought from A may be as good a description as one which sets out certain existing metes and bounds. In all such cases parol evidence is adduced to sliow not what the words in the will meant in any seconda-ry sense, but what in point of fact, as distinguished from secondary construction, was conveyed by the will. Jarman says,^ that if " the context of the will pre- sents an obstacle to the construing of the terms of description in their strict and most appropriate sense a foundation is thereby laid for parol evidence. The real source of the ambiguity, however, is not in the context, but in extrinsic circumstances if extrinsic evidence is admissible. The ambiguity must be extrin- sic and latent, not intrinsic and patent. If the " obstacle " in the way of the primary meaning of the terms used is insuperable, then a secondary sense may prevail. This often happens where after a limitation to the heirs of the body, the testator dis- tinctly declares that he meant thereby first and other sons, tak- ing by purchase. Obstacles of this kind, or apparent inconsisten- cies in the context must be all remedied by construction, and not by parol evidence. ' Vol. I, 361. PROPOSITION III. 127 [The conditions necessary to subordinate the primary mean- , ing of a clause or term to that of the context are similar to those which will subordinate the meaning of the whole will or any parts thereof to the light afforded by parol evidence. The primary meaning in the former instance must be insensible with respect to the context before the meaning of one passage can be affected by that of another. So, with respect to the whole will, as regards extrinsic evidence, the will must be insensible, inoperative, and void before any light can be thrown on the text by parol. Necessity is thus the source of parol in- terpretation in the latter case and of contextual light in the former. [A gift will also be held, ut res magis valeat, to apply to a person who is imperfectly described, if the disposition would otherwise have no application to any one at all. In all these eases the parol evidence relates merely to the surrounding cir- cumstances in which the testator was placed and not to his inten- tion, wishes, or motives. From the facts the court then infers the intention, and though the opinion of the court may in point of fact be the reverse of what the testator intended, yet, no parol evidence is admissible to rebut' the inference drawn by tlie court. [Extrinsic evidence can rarely, if ever, affect tlie construc- tion of a will as regards dispositions, which by their terms re- late to a future period, such as the death of the testator. This rule applies both to the description of the subject and object of the gift. For instance, the fact that a testator had no residue left undisposed of in the will does not necessarily lead to any portion of the property being regarded as residuary.^ The court, on the contrary, will hold the clause null and void, if to hold otherwise would be to defeat a prior gift in the will. The • testator might have contemplated the contingency of his having residuary property not disposed of by any specific clause in his will. This would account for the insertion of a residuary clause, even though in fact the testator had no residue. Now, the state of facts, therefore, existing at the time of the making of the will cannot be suffered to affect the construction of the instrument in cases such as that mentioned, especially since the 1 __ ' See 1 Jarman, 630 ; Andrews v. Emmot, 2 B. C. 0. «97. 128 PEOiPOSITION III. testator may at his death have property to satisfy the terms of the gift. [In like manner, where a class of objects is not to be ascer- tained until the time of the testator's death, or. some other period subsequent to the making of the will, extrinsic evidence of the circumstances of the testator at the time of his making of his will cannot be admitted in aid of the construction. Such testimony is evidently irrelevant, since the dispositioii points to a state of facts at a different period of time, which is unknown or uncertain, and which could not affect the intention of the testator, as far as regards the several then non-existing objects. [So, if a testator bequeaths such stock of a particular denomi- nation as -he may have at the time of his decease, evidence is not admissible to show that he had no such stock at the time he made his will. Even if he had not, .it does not follow that other stocks of his should be held to be comprised in the be- quest, since he might purchase and own before his death stocks of the particular kind mentioned in the will.'' [It thus appears that neither the object nor the subject of gift need be specifically pointed out on the face of the will. If the testator has furnished the means of identification, this is suflScient. A slight clue is often adequate to this purpose. Indeed, sometimes the intended beneficiary is unknown even to the testator. The objects of the gift may depend upon future and contingent acts, either of other persons or of the testator himself.^ This has been objected to on the ground that the statutory attestation is not appended to the gifts to the particu- lar devisees. This argument, however, implies too n!iuch ;• for it would equally prove that no uncertain donee could take under a will. When the statute of frauds,, however, was passed, it was not intended by the sections relating to wills to make any change whatever in the law of future interests or of trusts, but only to require testamentary gifts of land to be evidenced in a particular manner. Contingent remainders and trusts, therefore, were not interfered, with by the statute of wills, and it has always been immaterial whether the contin- ,' See TifFt t;. Porter, 8 N. Y. 516. ' See Petway v. Powell, 2 Dev. & Batt, eq. 308. PKOPOSTTipSf III. 129 gency affecting a tmst or use is dependent on the acts of the settlor or on those of somebody else. [The principle of the statutory requisition as to writing and attestation is the exclusion of parol, and the frauds likely thence to arise. But, the •wills acts in the respects mentioned were not intended to abridge testamentary power in any manner, nor to render any interest general, specific or de- monstrative, or even devisable, which previously was not such. At least the attestation sections do not conteniplate imposing any such restraint. Tlie objection, therefore, has no solid foundation. The argument equally applies to all future ac- quired property of the testator. Such property he can only describe in general terms. Why should he be curtailed of this power by any statutory requirement with respect to the evidences of his will. But if not restrained as to the nature of the property he may bequeath, neither can he be deemed fettered as to the description of the donees. He is not tied down to more particularity in the one case than in the other, •At least no statute relating to the form and attestation of a will can have any effect upon its construction, or in curtailing the testamentary power. [Accordingly, it was held in Stubbs v. Sargon,' that a devise to the persons who might be partners of the testatrix, or ■ to whom she might sell her business, was valid. Lord Lang- dale observes in that case that the only question was whether the donees were sufficiently distinguished from other persons. It is obviously immaterial how their character of beneficiaries 'has been acquired, whether by their own act or that of the testator, or by the ordinary course of events. The testator in- tended to part with an interest ; that intent is evidenced in the mode required by statute. No fraud can be committed on the testator by parol in aiding the application of his own gift. None certainly can be committed on the -statute, which was only made in aid of the intention of testators. A class consti- tutes the real object of the testator's bounty in such ca,ses. That the particular beneficiaries were not. foreseen to be mem- bers of the class does not affect the merits of the genus as repre- senting which alone they are entitled to partake of the testator's ' 3 Keen, 355. 130 PEOPOSITIOU III. assets. Necessity, which is the reason for admitting"' parol evidence at all, is also the parent of the rule which allows un- known members of a known and specified class to take in despite of any statutory requirement as to attestation. [Extrinsic evidence then cannot be given directly of th^ tes- tator's intention, except in the cases provided for by Proposition seven . ]Sf either can extrinsic eyi dence of any facts be given in aid of the interpretation until the primary and grammatical con- struction of the passage in question is wholly void, as being in- sensible with reference to the surrounding circumstances of the testator. But, extrinsic evidence is, of course, always admissi- ble to apply the dispositions to the facts of the case ^nd the various clauses to their appropriate subjects and objects. ■ [Parol evidence must always be more or less adduced to apply the dispositions of a testator to his property. For in- stance, the court must be satisfied that the testator did not own property devised away from a legatee before a case of election can be raised for such legatee. Even in the simplest case the court will not make a decree concerning property until it is at first made aware by extrinsic evidence that there is such property. The court, therefore, always admits any parol evidence neces- sary to show the state of the testator's property. The court thus places itself in the position of the testator, and applies the dispositions in the will from that point of view. In America, as in England,where the primary meaning of a disposition is in- sensible, evidence has been in many cases admitted, in aid of the construction of facts known to the testator which may reasona- bly be supposed to have influenced him in disposing of his means.^ This is really to admit indirect evidence of his intention, direct proof of which is confessedly not allowable, although direct evi- dence may be given of the state of the property from which knowledge by the court, it may, if necessary to give some effect to the disposition, infer what the testator's intention was. The distinction i§ obvious. The court will accept evidence to show that freeholds could not have passed by a certain devise because the testator had no freeholds in the district, but only leaseholds. But the court will not listen to evidence showing that the testator was grateful to the devisee, for many favors ' Ellis V. Essex Merrimac Bridge, 2 Pick. 243 ; 'Wootlon «. Kedd, 13 Grattan (Va.), 196. PROPOSITION III. 131 received from him, and promised to devise to him not only freeholds, but also leaseholds. [The parol evidence must be of facts, not of the motives of the testator ; his gratitude, feelings, affections, or aversions, as expressed by him at any time. The f^cts however may relate to the condition of the property, or to the testator's dealings with it, especially where these relate to the description of the parcels as " the lauds I bought from B," &c. The court will try to sit, as it were, in the chair where the testator made the will, to look from that position upon the promised inheritance, and totally to forget any precedent motives not expressly referred to in the will. _The view of the court is thus almost literally a a material one. It will always regard the state of the prop- erty ; ^ but as the eye sees not itself, so the court will not turn inward upon the mind or intention of the testator (except in the cases specified under Proposition seven), or take any cognizance of his. motives, fears, or affections, except so far as they are re- corded in the will. [Extrinsic evidence is thus the means of applying the testa- mentary dispositions in all cases. But, it does not react upon the meaning of the will, until it finds no place to rest on any property of the testator. It- then re-seeks the judicial abode, whei'e it is applied from the necessity of the case, uf res magis valeat, to give a new meaning to the will. With this new meaning, it, again goes forth, and if it finds a dry spot on any property that suits the new meaning given to the clause, it set- tles there, and so gives effect to the testamentary disposition. [We thus see how extrinsic evidence is diverted from apply- 'ing the will to construing it. It never is suffered to undertake this latter function until the legal interpretation is worthless, and finds nothing whereon the testamentary disposition in its primary sense may operate. The condition, therefore, the sine qua non, of the admissibility of parol evidence to aid in the construction of a will is the impossibility of the passage in question having any effect according to the general rules of law and grammar, if strictly enforced. [Jarman,^ therefore, appositely suggests that an investigation of " facts often materially aids in elucidating the scheme of dispo- • Holsten «. Sampson, 4 Esp. 184 ; 1 Greenl. on Ev. § 387. " Vol. I, 363. 132 PROPOSITION in. sition which occupied the mind of the testator." Such investi- gation, however, is wholly inadmissible for the purpose alleged, so long as the grammatical and primary meaning of the terms used is "sensible with reference to surrounding circumstances. But if the language of the will thus construed is insensible, then, parol evidence is not merely often, but is always, admis- sible to raise, and if possible to establish, a secondary and operative construction. [The court is bound " to shut its eyes " to surrounding cir- cumstances, so far as the interpretation, as distinguished from the application, of the will is concerned, until it finds itself stumbling.^ It then may exercise its vision, and guide its pro- gress by extrinsic light. But, until the legal interpretation begins to fail, or rather unless it falls powerless, extrinsic evi- dence as a guide to the testator's intention is always inadmissible. [It cannot be too often inculcated, nor too distinctly observed, that parol evidence is never admissible in aid of testamentary construction, except trom absolute necessity. There must be no alternative but total failure and want of operation in the clause under review, before extrinsic evidence is admissible. If the passage can in its primary sense have any, even the least operation, it will not be allowed to have any more by means of parol. [The difficulties supposed to be inherent in this branch of testamentary law spring from a neglect of the simple rule, that extrinsic evidence is not admissible, until intrinsic evidence wholly fails to fit the surrounding facts. The parol evidence re- ceived in all cases of non-contested wills, generally relates only to the application, and not to the construction of the documents.- [This part of the subject cannot be better elucidated, than by the class of cases which decide that the word child or chil- dren comprises only legitimate children, unless there neither are, nor ever can be any legitimate children to satisfy the terms of the gift.' If this impossibility arises, then illegitimate chil- dren can take. Parol evidence, of course, is the instrument whereby this secondary interpretation is adopted. [Although Jarman has investigated this branch of his subject with his usual regard to philosophic precision, yet he is perhaps ' 1 Greenl. on Ev. § 290; Brown i\ Saltonstall, 8 Met. 436. ' Fonke v. Kemp, 5 Harr. & Johns, 135. PROPOSITION III. 133 not quite accurate wliere he says that a judge, by seeing facts from the testator's stand-point, " may find himself justified in departing from a strict construction of the testator'^s language." ^ Semhle, the judge cannot give any such loose reins to his inter- preting functions. He may see the inheritance from any point of view, however elevated, but he is firmly tied down by the rules of law, language, grammar and composition, except so far as the context releases him and gives him more latitude. But extrinsic evidence cannot allow any degree of this liberty ' until the will, or part thereof, is wholly insensible, when applied according to the primary meaning of its terms, to the circum- stances of the testator.' The cases mentioned by Jarman are all instances where the will, in the primary sense of its terms, was wholly insensible. His opinion, therefore, is substantially cor- rect ; but it is couched in language g,pt to lead the cursory reader astray as to the province of parol evidence. [In Grant v. Grant,' there was a plain equivocation. The testator gave a bequest to his nephew, A. B. His wife's nephew was also named A. B. The court considered that the primary meaning of the word nephew comprised nephews by , aflanity as well as by consanguinity. But, if the court had held that the term had only one primary meaning, then, no parol evidence would have been at all admissible, unless the testator left two or more nephews by consanguinity named A. B. [Questions relating to evidence are essentially scientific, and reducible to general rules. Questions of testamentary con- struction are innumerable, Quot hominum, tot sententicB. Yet, the utility of general rules of testamentary construction has never been impugned. A fortiori^ therefore, is it desir- able that the rules of parol evidence should be strictly enforced. Any relaxation made in a seemingly hard case will open a wide door for future litigation, and will tend to render the devolution of property by will uncertain and damnose. Hard cases are the beaten bounds of legal rules. Their value is often in direct proportion to their severity. [Parol evidence is never admitted except with reference to the subject or object of a gift. Even the quantity of interest is to be determined by construction, and not by evidence. ' Vol. I, 364. ' Brearley v. Brearley, 1 Stocks. N. T. 31. ' A7ite, p. 103. 134 PEOPOSITIOK III. Although the fifth proposition asserts that parol evidence maj be given on this head, yet no case cited by Sir James Wigran throughont his whole treatise supports this view. It is not to( much to say that proposition five is inaccurate on this head WLere a devise of uncultivated land passes a fee, or where s fee passes, as in New York, by a general devise of land, this ii done by construction. For, parol evidence is not admissible t( show that a devise of uncultivated land in Massachusetts doei not pass the fee. But if the question were one of evidence, anc not of construction, testimony on both sides would, of course, be admissible. Parol evidence may be given that the land wai uncultivated. Here the evidence relates to the subject of gift But, parol evidence cannot be given that a fee does not pass for this relates to the quantity of interest, or to the limiting and conveying element. [If we consider every testamentary gift as divisible into sub ject, verb, and object, we will find that parol evidence is nevei admitted in respect to the verb, either under proposition three five, or seven. [If it be asked why evidence of intent is not allowed undei proposition three, the answer is obvious. Such is not the besi evidence of which the case admits, as it would open a wide door to perjury, besides repealing the wills acts and abrogating the common law rules of evidence. But evidence of inteni is admitted under proposition seven, because, though the testa tor comply with the requisites of the wills acts, yet hii disposition may be void unless evidence of intent is admitted It is in the power of a testator to make an appropriate disposi- tion to A., but it is not always in his power to negative the claims of every other A. ■ [Dnder proposition three, the testator may not have strictly done his duty. He or his donee is not to benefit, therefore, bj such a delict. But under proposition seven, the testator has done his duty by making a plain disposition. It should not, therefore, be suffered to fall to the ground by excluding evidence, [Where the meaning of an instrument becomes ambiguous in consequence of extrinsic evidence showing a usage, the ques tion of intention is one for the jury to determine.*] ' Gi-eenleaf on Ev. p. 345 ; Doe v. Beviss, 18 L, J. 628. PROPOSITION IV. ■ Where the characters in which a will is written are difficult to he deciphered, or the language of the will is not understood hy tlie Court, the evidence of persons skilled in deciphering writing, or who u/aderstand the language in which the will is written, is admissible to declare what the characters a/re, or to inform the Cou/rt of the proper meaning of 'the words} 56, This Proposition (wHcli, in trutL., is involved in the first Proposition stated above) scarcely needs author- ity to support it. The evidence merely declares what the characters or words are; and for the purpose of ascertaining that, a -Court may call a witness, as it would look into a book or dictionary for the same purpose. 57. Masters v. Masters,* Norman v. Morrell,^ and Goblet V. Beechey,* are authorities for the first branch of the Proposition.^ [' See per Maule, J. 9 01. & Mn. 503 ; per Tindal, C. J. ib. 566 ; 1 Greenleaf on Ev. 3d ed. 401.] ' P. Williams, 431. = 4 Ves. 769. * Appendix, infra, No. I. [3 Sim.. 24 ; s. c. on appeal, 3 Russ. & Myl. 624.] ■ . ^ In a recent case in which a question arose (upon the obscurity of the handwriting) what the words of an instrument were, the Court decided the point, and refused to let it go to the jury. Eeman v. Hayward, 2 Adol. & Ellis, 666, n. [On the question whether, and in what cases, the Court will look at an original will of personal estate with a view of deriving from the form, character, of manner of writing, or from what otherwise 136 PROPOSITION IV. 58. Tlie common practice of the Courts in receiving translations of instruments written in foreign languages proves the second branch of the Proposition. So, with- in the same principle, if a testator express himself in terms, with which, as a member of a particular trade or calling, "he is familiar, the evidence of persons acquainted with the proper meaning of such terms is admissible to interpret them.' may appear thereon, aid in determining the meaning or construction of the will, see Phillipps v. Chamberlaine, 4 Ves. 57 ; Compton «. Bloxham, 2 Coll. 304; Oppenheim v. Henry,'cited 9 Hare, 802, note; Gann v. Gregory, 3 De G. M. & Gor. 780; Shea v. Boschetti, 18 Beav. 331 ; 3 Phil. Bvid! ch. 1, s. iii. In Gauntlett v. Carter, 17 BQav. 586, the punctuation of a will was relied upon in the judgment. In Langston v. Langston, 2 CI. & Fin. 240, Lord Brougham looked at the draft of the testator's will. " I had " said his Lordship, " a curiosity to see the draft from which the engrossment was made, and one party were exceedingly anxious that my curiosity should be gratified ; but that anxietywas met by just an equal anxiety on the opposite side that it should remaih unsatisfied. I at once, therefore, proceeded to have a stiU greater anxiety and curiosity, because I plainly saw it was likely to be a decisive matter. I was awarCj as a lawyer, that 1 had no right to look at it ; but, humanly speaking, it was impossible not to wish to see whether one's extra-judicial conjecture was well founded, namely, that the whole history of this was an error in copying ; and accord- ingly, when I looked at it, I found that there was a limitation to the first son of a testator's son, J. H. Langston, which the person who made the engrossment had for a very obvious reason passed over in copying it ; hav- ing in his haste gone from the same word in one line to the same vpord in another, in mistake. I here lay that entirely out of view. It has nojight to enter into the consideration of the case, and I can positively assure your Lordships that I have formed my opinion upon the intrument as it now stands, without matter deJiors, without having recourse to the draft. I have no right to look at the draft, but anybody who reads this will can- not, if he has his senses about him, doubt that some mistake must have happened ; and that is a legitimate ground in construing an instrument, • because that is a reason derived not dehors the .instrument, but one for which you have not to travel from the four comers of the instru- ment itself"] ' Att.-Gen. v. Plate Glass Co. 1 Auat. 89 ; Goblet v. Beechey, App. infra; a. c. 8. Sim. 34 ; Smith ®. Wilson, 3 B. & Adol. 738 ; and Richard- son V. Watson, 4 B. & Adol. 787. So, in the recent case of The Kjng v. Mashiter, 6 Ad. & Ellis, 153, the Court, upon the construction of a charter, PKOPOSITIOH IV. 137 [All, symbolic writing, as also figures, ciphers, short- hand, foreign and technical expressions* may be explained by parol. A testator bequeathed to his son " the sum of i. x. x^ Extrinsic evidence was admitted to explain the meaning of these letters.* They were in fact equivalent to £ s. d. [Evidence of the habits of the testator is admissible where he has called things or persons by peculiar names. The will is held that a word of uncertain meaning ('inhabitant') must be interpreted by extrinsic evidence of usage, or by reference to the context and objects of the charter. The cases of mercantile contracts are in point. See Clay- ton V. Gregson, 5 Adol. & Ellis, 302, and the cases there cited by counsel. In Clayton v. Gregson, it was held, that, in construing a mining contract, evidence was admissible to show the meaning of the word " level " as un- derstood by coal-miners. It was held, however, that the finding as to the meaning of the word " level," did not, under the circumstances, raise a con- clusion of law, that the contracting parties used the term according to . such meaning, but was only evidence from which a jury might draw that conclusion. That is, it is an extrinsic fact material to the right interpre- tation of the words of the contract. Infra, Prop. V. [So-, "the testator may have habitually called certain persons or things by peculiar names, by which they were not commonly known. If these names should occur in his will, they could only be explained and con- strued by the aid of extiinsic evidence to show the sense in which he used them, in like manner as if his will were written in cipher or in a for- eign language. The habits of the testator in these particulars must be receivable as evidence to explain the meaning of his will " (per Lord Abin- ger, C. B., in Doe d. Hisocks v. Hisocks, 5 M. & W. 363). In the regent case of Kello. Charmer, 33 Beav. 195, the testator by his will expressed himself as follows . — '' I give and bequeath to my son William the sum of i, X. X. To my son Robert the sum of o. x. x." The letters i. x. x. and o. X. X. were written in pencil in the original will, but were included in the probate. [The testator, in his lifetime, had carried on the business of a jeweller, and had, in the course of such business, used certain private marks or symbols to denote prices, etc. ; and extrinsic evidence was tendered to prove that, according to such system, the letters i. x. x. and o. x. x. repre- sented the sums of £100 and £200 respectively. The cases of Goblet ». Beechey, (Appendix, infra, No. I.); Clayton ». Nugent, 13 M. & W. 200; East v. Twyford, 9 Hare, 712, 4 Ho. Lo. Cas. 517, and Shore «. Wilson. 9 CI. & Fin. 355, 555, Were cited. Sir John Eomilly, M. R. admitted the evidence.] "■ KeU ®. Charmer, 33 Beav. 195. ° Id. See note 1, page 136. 10 138 PROPOSITION IV. SO far like a writing in cipher or in a foreign language as the meaning of the words used is not generally known. [Where words have only a local meaning, or have both a general and a local use, parol evidence is admissible, to show that .they were used by the parties to a contract in the local sense. But, if the words have no local or technical meaning, parol evidence is not admissible to show that they were used in a peculiar sense by the parties in that particular case.^ If the words are used in a sense peculiar to a religious sect, this, of course, renders parol explanations admissible.' Similar rules appear to be applicable to words used in wills. [Although short and incomplete terms, which, ^er- se, are un- intelligible, may be explained by parol, yet, their meaning thus explained will not, except where the terms are well known in trade, be suffered to contradict or even modify the meaning of the rest of the document.' [As the fact that a testator stood in loco parentis to a legatee, is provable by parol, this may show that the testator used the word child in a peculiar sense. The evidence may also, of •course, have the consequential effect of preventing the child from taking both a legacy and a subsequent endowment from the testator.^ [The case of Lee v. Paine,' though regarded unfavorably by Judge Kedfield, seems to have been decided by V. 0. Wigram on sound principles, and on the ground that a nick name is a sufficient designation where no other person of the name claims.* [Sir James Wigram deprives his fourth proposition of much of its natural value by not including there under, cases of pet or nick names as appropriate subjects to elucidation by parol. [Judge Eedfield thinks that Beaumont v. Fell,' and Masters V. Masters^ would not be followed at the present day. These cases, however, seem to fall under proposition four. So do all cases of pet or nick names. ' See Gray v. Harper, 1 Story's E. 574. ' Selden «. Williams, 9 "Watts, 9. = Farm. & Mech. Bant, v. Day, 13 Venn. R. 36. ' Povsfys ». Mansfield, 3 My. & C. 339. ' 4 Hare, 351. » See Redfield, 632. ' 2 P. Wms. 141. « 1 P. Wms. 421 ; post, pi. 65. PEOPOSITION IV. 139 [If no part of the written description applies to the person or thing alleged, parol evidence is said not to be admissible.^ But proposition four is a very comprehensive one, and may pro- vide for numerous miscellaneous cases of this kind. The Court, too, sometimes transposes names, if this will render the will sensible with regard to the extrinsic circumstances. [In cases under proposition four there is not really any equivo- cation. The words are not equally applicable to two or more subjects or objects of gift, but are simply imperfect descriptions of only one subject or gift. In such cases parol evidence of in- tent ought not -to be admitted. It is not necessary. In Beau- mont V. Fell,^ therefore, such evidence appears to have been re- ceived contrary to principle. The case, however, is distin- guishable from Miller v. Travers,* where the primary meaning of the terms in the will were sensible, and where the only ground for adducing parol evidence was the untenable one of mistake. [Parol evidence cannot be given to fill up a total blank left for the name, either of the subject or object of the gift.^ In the case of Hunt v. Hunt,' the bequest was to Lady . Lord Thurlow considered the blank to be virtually total, and that extrinsic evidence was inadmissible. [But, in Abbot v. Massie,* where the bequest was to Mr. and Mrs. G-., Lord Brougham directed an inquiry as to who Mrs. G. was. The case is distinguishable from Hunt v. Hunt, inas- much as an abbreviation, a pet or nick name or cipher, is very different from a total blank. [In Price v. Page,'' the bequest was to Price, son of r Price. Parol evidence was admitted by Sir E. P. Arden, M. R., to show that a son of the testator's niece of that name was brought up by the testator, who had no other relation of that name, and had promised to provide for him. Here the omission was of the Christian name. An omission of the surname could, doubtless, be supplied by parol on the same principle. ' Hiscocks V. Hiscocks, 5 M. & W. 362 ; Miller ». Travers, 8 Bing. 344. ' 3 P. Wms. 141. = 8 Bing. 344. * 1 Jarman, 383 ; Miller ». Travers, 8 Bing. 344. ' 3 Bro. 0. C. 311 ; see also 1 M. & Scott, 351. ' 3 Ves. 146. ' 4 Ves. 680. 140 PKOPOSiTioN rv. [Under proposition four a wide footing is given for the parol lever. [In Andrews v. Dobson,^ the bequest was to James, son of Thomas Andrews, of Eastcheap, printer. There was no Thom- as Andrews in Eastcheap, but there was James Andrews who had two sons, one named Thomas, by his first wife, who was related to, the testator, and one named James, by his second wife. The son of the first wife claimed thg- legacy, on the ground that the testator meant to write " Thomas the son of James," instead of "James the son of Thomas." But Sir Lloyd Kenyon, M.E., dismissed the bill, and would not ad- mit any extrinsic evidence. [Propositions three and four are reducible to one thus : — Tech- nical terms, names of places and persons and foreign expressions may be explained by parol. The name of a place or person is, as it were, a term of social art. The generic term land would par- ticularize nothing. The distinctive aippellations, therefore, of places, are, as it were, terms of convenience known to the neigh- borhood but" not to the world. Such appellations are of a different nature from ordinary or common nouns, the meaning of which can be ascertained by reference to a dictionary. The principle, then, which admits parol evidence to apply a bequest to its appropriate subject-matter and object, is the same as that which permits technical terms of art or foreign expressions to be explained by those familiar with the use of such terms. [There seenis to be no solid reason for restricting the ad- duction of parol evidence more in respect to the object than the subject of a gift, although, indeed, it is a leading rule that instruments are to be interpreted according to the subject- matter. Still, as the technical or local meaning of terms may be explained by parol on the ground of the convenience of ad- mitting such evidence so, pari rationed any nick or pet ^name may also be proved by parol. [In Goblet v. Beechey,^ the question was whether the word Mod. occurring in the codicil of a sculptor meant models. The opinions of sculptors and experts in handwriting difi'ered on. the point. Lord Brougham decided that a formal bequest could not be held revoked by a doubtful word in the codicil. A ' 1 Cox, 435. ' 3 Sim. 34 anU, pi. 57. PROPOSITION IV. 141 person who attested the will offered to explain the testator's meaning. But this evidence, of course, was inadmissible. If any reasonable evidence showed that the word had any mean- ing, either as used by the public, by sculptors, or by the testa- tor, Lord Brougham ought, it would seem, to have admitted the evidence ut res magis valeat. If his lordship's theories on questions of philosophy are not more solid than some of his legal decisions, he can be regarded as a Bacon only on the ground of being highly experimental. [The explanation of technical terms of art or of a foreign language orally to the Oourt^ is not, when strictly considered, a case of evidence oi facts at all. The explanation relates rather to general usages or laws of which the judges will then take judicial cognizance, just as they have often sent cases for the opinions of their brethren. Such terms of art or foreign expressions are, like foreign laws, facts of a peculiar kind with which the Court deals. But it wiU not allow proof that such terms were used by testators in any but the primary sense, unless an extrinsic foundation is laid for the adduction of such evidence, just as if the will was in the vernacular.^ [Evidence admissible under proposition four cannot be used for any purpose except that of merely explaining the meaning of the peculiar phraseology under consideration.^ The semhle evidence of the witnesses should relate to the usage, and not to their own opinions, where the question is one which relates to a use of terms or a custom of trade.*] ' Masters «. Masters, 1 P. W. 431. = Goblet V. Beechey, 3 Sim. -24 ; 3 Russ & My. 624; see Salmons. Stuyresant, 16 Wendell, 321 ; Chappel v. Avery, 6 Conn. 34 ; 1 Story's Eq. Jut. § 180 a ; Mitchell v. Gard, 83 L. J. Prob. 139. = '14 How. 445 ; 3 Kent, Comm. 556 ; 3 id. 360, and note ; 1 Greenl. Ev. § 395 ; 3 Cr. & J. 349-50. * Winthrop «. Union Insurance Co. 3 Wash. C. Ct. 7. PKOPOSITION V. For the purpose of determining the object of a testa- tor'' s lounty, or the subject of disposition, or the quantitnj of interest intended to be given by his will, a Court may inquire into every material /ac^ relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his fami- ly and affairs, for the purpose of enabling the Court to identify theperson or thing intended by the'testator, or to determine the quantity of interest he has given by his will? The, same (it is conceived^ is true of every other dis- puted point, rejecting which it can be shown that a Tcnowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator'' s words. 59. The evidence under tlie Proposition last >con- sidered (the Fourth) is applicable only to the purpose ' /?)/to, pi. 98. ' See per Lord Wensleydale, iH Shore v. "Wilson, 9 01. & Fin. 556, and in Grey v. Pearson, 6 Ho. Lo. Cas. 106 ; per Sir W. P. Wood in Webb v. Byng, 1 Kay & Job. 585 ; Martin v. Drinkwater, 3 Beav. 315 ; Passmore ■». Hug- gins, 21 Beav. 103 ; Blundell v. Gladstone, 11 Sim. 467 ; s. c. nom. Camoys (Lord) V. Blundell, 1 Ho. Lo. Cas. \1% ; Doe d. Evans v. Evans, 10 Ad. & Ell. 338 ; Innes v. Sayer, 3 Mac. & Gor. 606. PEOPOSITIOK V. 143 of determining the meaning of tlie characters and words in the abstract. The purpose of resorting to the evi- dence now Tinder consideration is to determine their ■meaning in the will. 60. This Proposition, when examined, will be found to be involved in the Second and Third Propositions, which have already been stated. For, if the strict and primary sense of a testator's words is to prevail in con- struction wherever the circumstances of the case admit of their being so construed, (Second Proposition), ex- trinsic evidence must be admissible, to inform the Court whether this rule of law can be applied or not. And if, where the circumstances of the case make it impossible that the words of the will could have been used by the testator in their strict, and primary sense, a popular or secondary sense may be put upon them (Third Proposi- tion) extrinsic evidence of the state of the testator's famUy and affairs must be admissible, or a Court would be without the means of judging in what popular or sec- ondary sense (if any) the testator may have used the words. Oases, illustrating this Proposition, have occur- red in considering the two Propositions just referred to. A few additional examples, however, with some observations upon them, wUl assist in elucidating the subject. 61. Example 1. — ^Where the person or thing in- tended by the testator is the point of contention, the office of the Couft is simply to declare what person or thing is described in the will. 62. The proposition now under consideration asserts, that, in all cases, calling for such a declaration, evidence as to the nature, name, marks, qualities, etc., of the sub- ject mentioned in the will (whether person or thing) is admissible, in order to enable the Court to de- 144 PROPOSITION V. termine whether the description in the will applies or not.^ 63. K a man devise his estate, correctly described as the manor of Dale, evidence must be admissible t* show that a subject exists which answers the descrip- tion in the will.* This needs no authority. 64. ExAiiPLE 2. — ^K the description in the will is incorrect, evidence that a subject — ^having such marks upon it — exists, must be admissible, that the Court may determine whether such subject, though incorrectly de- scribed in the will, be that which the testator intended. No question can be raised for the opinion of the Court without such evidence. 65. In the legitimate application of this process, a nickname has been held a sufficient description of the object of a testator's bounty,^ it being proved that the testator was in the habit of calling the legatee by such name.* 66. So, also, a name gained by reputation, though not strictly appropriate,® may be a sufficient description of the person intended. 67. So a description, though fallse in part, may, with reference'to extrinsic circumstances, be absolutely ^ Fonnereau v. Poyntz, 1 Bro. C. C. 473 ; Herbert v. Reid, 16 Ves. 481 ; Sandford v. Raikes, 1 Mer. 653 ; Press v. Parker, 10 Moore, 185 ; Doe d. Templemac «. Martin, 4 B. & Add. 77. [Reynolds v. Whelan, 16 L. J. Ch. 434, infra, Prop. VII. note.] ° See per Coleridge, J., in Preedy v. Holton, 4 Add. & Ellis, 82. ° Edge 11. Salisbui7, Amb. 70 ; Dowset v. Sweet, id. 175 ; Baylis «. At- torney-General, 3 Atk. 239 ; Maybank ®. Brooks, 1 Bro. C. C. 84 ; Good- inge V. Goodinge, 1 Ves. sen. '330 ; Parsons e. Parsons, 1 Ves. jun. 366 ; [and see 1 Hoven, Supp. 112 ;] Doe d. Beach ®. Lord Jersey, 3 B. & C. 870. And see Hiscocks^o. Hiscocks, infra, pi. 183, - [Lee ». Pain, 4 Hare, 353.] " River's case, 1 Atk. 410; Crounden ». Gierke, Hob. 33. [4 Hare 348 ; Queen's College v. Sutton, 13 Sim. 531.] PROPOSITION V. 145 certain, or, at least, suMciently so as to enable a Cotirt to identify the subject intended ; as wliere a false de- scription is superadded to one wMcL. by itself would liave been correct.^ Tbus, if a testator devise his hladk ' [In Kennell ®. Abbott, 4 Ves. 802, testatrix gave a legacy to a man whom she described as ' my husband,' Edward Loyell, supposing him to be in fact such, whereas at the time of his marriage with the testatrix, he had had a wife living. Sir R. P. Arden, M. E., said : — " The first question is, whether this legacy is or is not a legacy which this man can claim under the circumstances that it is given him as the TmsbanA of the testatrix, though he does not possess that charaet^. I thought it a case rather novel in its circumstances, and that scarcely has afforded any decision in the law of England, though there are some dicta in the Civil Law that seem to bear upon the point. The passage cited from the Digest (Book xxxv., tit 1, 1. 73, 8. 6) is, 'Falsam causam legato non obesse verius est, quia ratio legandi legato non coheeret : sed plerumque doli exceptio locum habebit, si probetur alias legaturus non fuisse.' " The meaning is, that a false reason given for the legacy is not, of itself, sufficient to destroy it ; but there must be an exception of any frand practised from which it inay be presumed that the person giving the legacy would not, if that fraud had been known to him, have given it. That, from a book of great authority, seems to be the principle of the Civil Law. " The question is, whether, according to the law of England, that can apply to a case like the present, and whether the law will permit a man who obtains a legacy in such a manner, to have the benefit of it. " I have not been able to find anything that bears any very decisive analogy to this, but, upon general prihciples, I am of opinion that it would , be a violation of every rule that ought to prevail as to the intention of a deceased person, if I should permit a man availing himself of that charac- ter of husband to the testatrix, and to whom in that character a legacy is given, to take any part of the estate of a person whom he so grosslyabused, and who must be taken to have acted upon the duty imposed upon her in that relative character. I desife to be understood not to determine that where, from circumstances not moving from the legatee himself, the de- scription is inapplicable, as where a person is supposed to be a child of the testator, and from motives of love and affection to that child, supposing it his own, he has given a legacy to it, and it afterwards turns out that he was imposed upon, and the child was not his own, I am not disposed by any means to determine that the provision for that child should totally fail ; for circumstances of personal affection to the child might mix with it, and which might entitle him, though he might not fill that character in which the legacy is given. My decision, therefore, totally avoids such a point. Neither would I have it understood that if a testator, in consequence of supposed affectionate conduct of his wife, being deceived by her, gives 146 PBOPOSITION y. horse, having only a wMte one,-^ or devise his freehold houses, having only leasehold houses,^ the white horse in the one case, and the leasehold houses in the other, would clearly pass. In these cases the substance of the suhject intended is certain, and, if there he hut one such suhstance^ the superadded description, though falSe, in- troduces no amhiguity ; and as, by the supposition, the rejected words are inapplicable to any subject, the Court does not alter, vary, or add to the effect of the will by rejecting them. To such cases, the maxim, falsa demonstratio non nocet, may, with propriety,* her a legacy as to his chaste wife, evidences of her Tiolation of her marriage vow could be given against that. It would open too wide a field. But this decision steers clear of that point. This is a legacy to her supposed husband and under that name. He was the husband of another person. He had certainly done this lady the grossest injury a man can do to a woman, and I am called upon now to determine whether the law of Eng- land will permit this legacy to be claimed by him. Under these circum- _ stances I am warranted to make a precedent, and to determine that where- ever a legacy is given to a person under a particular character which he has falsely assumed, and which alone can be supposed the motive of the bounty, the law will not permit him to avail himself of it, and therefore he cannot demand his legacy." And see Giles 11. Giles, 1 Keen. 685 ; Pen- bold V. Giles, 6 L. J. N. 8. Ch. 4 ; Eishton v. Cobb, 9 Sim. 615.] ' Door ». Geary, 1 Ves. sen. 355 ; Touch. 433. ' Day V. Trig, 1 P. Wms. 386. [DOe d. Gunniag v. Lord Orjinstoun, 7 ' M. & W. 1 ; and see per Sir J. L. Knight Bruce, in Hall 0. Fisher, supra, page 34, n 9.] ' See per Lord Kenyon, C. J., in Thomas «. Thomas, 6 T. E. 375. ■■ See further Hob. 33 ; 8 Vin. Abr. 310, pi. 4 ; 3 Eq. Abr. 415 ; pi. 6 ; ■ Gynes v. Kernsley, 1 Frem. 398 ; Parsons v. Parsons. 1 Ves. jrni. 366 ; Dow- set If. Sweet, Amb. 175 ; Garth ®. Meyrick, 1 Bro. C. 0. 30 ; Stockdale v. Bushby, 19 Ves. 381 ; s. c. Cooper, 339; Smith ». Campbell, 19 Ves. 403; Welby ®. Welby, 3 Ves. & B. 191 ; 1 Inst. 3 a.; C6m. Dig. Estate (1); Eichardson v. Watson, 4 B. & Adol. 779; Miller v. Travers, 8 Bing. 344 ; Doe d. Smith i). Golloway, 5 B. & Adol. 48. [See per Alderson, B., in Morrell v. Fisher, 4 Exch. 604 ; Schloss «. Stiebel, 6 Sim. 1 ; Newbolt v. Pryce, 14 Sim. 354 ; King v. Wright, ib. 400 ; Hopkinson v Ellis, 5 Beav. 34 ; Bristow «. Bristow, ib. 391 ; Ryell v. Hannam, 10 Beav. 536 ; s. c. 16 L. J. Ch. [491 ; Gallini v. Noble, 3 Mer. 691 ; Bradshaw v. Thompson, 2 PEOPOSITlOJf V. 147 be applied ; and this is the proper limit of that maxim.^ 68. So, where the same thing has two names, as, if I give lands to Christ Ghnrch in Oxford, and the name of the corporation is JEcclesia CJirisU in tlnwersitate Oxford, evidence may be given of the fact, that the precinct of Oxford and the University of Oxford are one and the same.* 69. K a testator, having freehold and leasehold prop- erty in the same place, devise all his messuages, lands, tenements, and hereditaments in that place to uses ap- plicable only to freehold property, the leasehold prop- erty will not generally pass ; but if, in fact, the lease- . hold property had been blended in enjoyment with the freehold, the leasehold propierty will pass, although the T. & Coll. N. 0. 295 ; G-oodlad v. Burnett, 1 Kay & Joh. 341 ; In re the trusts of tlie will of Bridget Feltham. iJ. 538 ; Reynolds «. Whelan, infra, Prop. Vn. ; Attorney-General v. Pyle, 1" Atk. 435 ; Adams a. Jones, 9 Hare, 485 ; Bernasconi v. Atkinson, 10 Hare, 345 ; General Lying-in Hospital t. Knight, 21 L. J. Ch. 537 ; Lane ii. Green, 15 Jur. 768. Re Blackman, 16 Beav. 377, might probably have been supported under the above maxim, ■without reference to evidence of intention, which it is submitted was under the circumstances, inadmissible.] ' See further, 8. P. infra, pi. 133. [Upon the principle expressed in this maxim, must, it is conceived, rest the established rule, that where a testator in terms bequeaths to part only of a number of individuals, described as composing a particular class, e. gr., " to the tli/ree children of A,," who has four children at the date of the wiU, and none of the intended legatees are named nor can be identified, either by the context of the will or by extrinsic evidence, it is to be presumed that he intended a benefit to the entire class, and that his numerical de- scription of it must be wholly disregarded. In such a case the restrictive expressions are accordingly rejected, as merely inaccurate, and the entire number of individuals answering the description are admitted as legatees. In Garvey v. Hibbert,>19 Ves. 124, under a legacy "to the three children of A. the sum of £600 each," the four children of A. were held' entitled to £600 apiece. See also Lee v. Pain, 4 Hare, 349 ; Morrison ». Martin, 5 Hare, 507; Daniell «. Daniell, S De G. & Sm. 337; Yeats «. Yeats, 16 Beav. 170.] Vn/TO, pi. 197. 148 PROPOSITION V. limitations be to uses strictly applicable to freehold property only.^ 70. The admissibility of evidence of the nature and for the purposes here adverted to, without transgress- ing the strictest limits of exposition, must, it is con- ceived, be obvious. Exposition — as applied to causes in which the only question is, whether a given subject is sufficiently described in a will — can mean nothing else than deciding upon the aptness of the testator's expres- sions to identify the subject in question. The only point to be decided, in such cases, is, whether the de- scription in the will does or does not correspond with . that of the subject it is said tp describe. The most ac- curate description possible must require some develop- ment of extrinsic circumstances to enable a Court to decide upon its sufficiency ; and the least accurate de- scription, which is sufficient to satisfy the mind of a judge or jury as to a testator's meaning, must be within the same principle. The principle cannot be affected by the consideration that a more ample development of circumstances is, necessary in one case than in another. In such cases, provided the judgment of a Court, or the finding of a jury, be founded upon a comparison of the description in the will with that of the subject which it is said to describe, the general principle of exposition above stated is strictly adhered to, and the intention of the testator never comes in question except as it is ex- pressed in Ms will. 71. Example 3. — As a knowledge of the nature, name, etc., of the subject intended by the testator is necessary for the purpose of enabling a Court to iden- ' Hobson V. Blackburn, 1 Myl. & K. 571. [Pye v. Bitd, 2 Black. 130 ; Goodman d. Edwards, 3 Myl. & K. 759 ; Arkell «. Fletcher, 3 Jur. 1099 ; Hall 4). Fisher, 1 Coll. 47.] PEOPOSITION V. 149 tify it ; so, a knowledge of the circumstances by wMcli a testator was surrounded at the time of making Ms win ; the situation in which he stood with respect to the objects to which his will refers ; and, generally, a knowledge of, the state and circumstances of the tes- tator, his family, and affairs, may be necessary for the same purpose. 72. Thus, the strict and primary sense of the word cMld is legitimate offspring.^ Now, if a testator, having no legitimate child at the time of making his will, de- vise an estate to his chUd, describing such child in his will as a person then in being, or in any other terms amounting to a designatio peraonce, the extrinsic circum- stances of the case would necessarily exclude the pri- mary sense of the word, and (as the testator must have mfeant some person) would let in the inquiry whether, in any popular or secondary sense of which the "vrords wer# capable, they pointed out the testator's intention with certainty. 73. Again, suppose a testator to devise an estate to A. B., there being two persons, father and son, of the same name, and that the son only was known to the testator ; — Or, suppose a testator resident in India, to bequeath to" A. B., who was also in India, some specific chattel, e. g. a gold watch, and that the testator had vnth him, in constant use, a specific chattel of the kind described, and that he was also owner of another of the same description, which he had left in England twenty years before ; — ^The meaniiig of the testator's words in both these cases, though equivocal in the abstract, is definite with reference to the circumstances under which they were used.^ ' 1 Ves. & B. 466, and the references there. [3 Ves. & B. 67.] = See and consider Lepiot v. Browne, 1 Balk. 7 ; Thomas «. Steward, 7 T. R. 144, n. (6) ; Fonnereau v. Poyntz, 1 Bro. C. C. 471 ; s. c. 6 Vesey, 150 PROPOSITION V. 74.. In Doe d. Gore i). Langton/ the testator by Ms will, wMck was dated in February, 1831, devised " all that my manor or reputed manor of Barrow Minchin, in the county of Somerset, together with the mansion- house, called Barrow-Court, thereto belonging, and the park, and also all and singula^ my freehold messuages, lands, tenements, and hereditaments thereunto belong- ing, situate, lying, and being in the parish of Barrow Minchin and Barrow Gumey, in the county of Somerset aforesaid." The lands in question in the cause adjoined to, and were in some parts intermixed with, the ancient Barrow estate, which had been in the testator's family for several generations;- they were situate in the parish of Barrow Minchin and Barrow Gurney, but were not within the manor of Barrow Minchin, and were pur- chased by the testator in October, 1800. The testator had some lands within both the .parish and manor of Barrow Minchin. • The argument for the plaintif^(the devisee) proceeded upon the manifest intention of the testator to dispose of all his estates, and the flexible meaning of the words "thereunto belonging." The counsel for the defendant (the heir-at-law) contended that the wordp " thereunto belonging " could not apply to newly purchased estates, which had never been held with the manor, or even been in the family of the tes- tator before the purchase in October, 1800. That being conceded, it was contended that the description of the lands consisted of two necessary terms : one, that they be within the parish of Barrow Minchin and Barrow Gur ey; another, that they belong to the manor of Barrow Minchin; that, as there were lands that cor- 401 ; 1 Mer. 389, 380; and see 8 Ves. 23; 10 Moore, 166. [King's College Hospital ®. Wheildon, 18 Beav. 33; Jeffries ». Michell, 20 Beav. 15.] ' 2 B, & Add., 680. PEOPOSITlOlir T. 151 responded in hotla. particulars witli this description, and wMcli undoubtedly passed by the devise, tlie words of tlie will were satisfied without being construed as carrying the lands in question; and that if they did not correspond with the description in both particulars, that is, if they did not belong to the manor and lie within the parish, evidence that the lands in question answered the description in the will, and that they had been occupied, and formed one estate with the manor, wias undoubtedly admissible ; but no such evidence was or could be given. Lord Tenterden, C. J., in de- livering the judgment of the Court, said : " Our opinion in this case is founded upon the will of the testator, together with such only of the extrinsic facts as furnish the date of the purchase and the situation of the lands in question, and show that William Gore Langton, the defendant, was the eldest son of the testator, and had married a lady of fortune, and taken her surname of Langton in addition to his own ; and that the ancient seat of the Gore family was at Barrow — ^the eldest son resided at Newton Park ; cmd all these facts were vm- doubtedly admissible in evidencer ^ After noticing some of the extrinsic facts of the case, his Lordship pro- ceeded: "The question arises upon the use of the words, therev/nto hdonging^ in the devise under which the plaintiff claims. It sometimes happens, that the language of one will is so nearly like that of another, as to make a decision upon the first a plain authority to govern the second ; but this does not always hap- pen, and very small changes of language have often kd' to a difference of interpretation. The mitrmsic fa^ts in this case leave no room to doubt that the testator in- tended his newly-acquired property to pass by his will, ' See Lowe v. Lord Huntingtower, 4 Russ. 533, n. 152 PROPOSITION V. as part of Ms Barrow estate; but, nevertlieless, it can- not pass, unless that meaning can be collected from tlie will itself; and there are two clauses in the latter part of the will, which appear to manifest that intention, and to be sufficient to authorize us to put such a con- struction on the words iherev/nto l)elongmg as will ac- cord with, and give effect to, that intention." 75. The admissibility of extrinsic facts in the cases stated under the third example, and in any cases anal- ogous to them, without transgressing the strict limits of exposition, if not equally obvious as in those falling under the first example, is equally certain. 76. In considering questions of this nature, it must always be remembered, that the words of a testator, like those of every other person, tacitly refer to the circumstances by which, at the time of expressing himself, he is surrounded. If, therefore, when the circumstances under which the testator made his wiU are known, the words of the will do, sufficiently express the intention ascribed to him, the strict limits of ,ex- . position cannot be transgressed, because the Court, in aid of the construction of the will, refers to those ex- trinsic collateral circumstances, to which it is certain the language of the will refers. It may be true, that, with such evidence, the precise meaning of the words could not be determined ; but it is still the wiU which expresses and ascertains the intention ascribed to the testator. A page of history (to use a familiar illustra- tion) may not be intelligible till some collateral ex- trinsic circumstances are known to the reader. No one, however, would imagine that he was' acquiring a knowledge of the writer's meaning from any other sov/rce tliom the page he was reading, because in order to make that page intelligible, he required to be in- formed to what country the writer belonged, or to be PEOPOSITIOU V. 153 farnished witli a map of the country about which, he^^ ift was reading.^ The distinction pointed out in a former page ^ between the application of evidence to explain a testator's words and its application to prove intention as an independent fact^ should here be recalled. The evidence for the admissibility of which we are now contending is of the former description. It does not per se approach the question of intention. It is wholly collateral to it. It explains the words only by re- moving the cause of their apparent ambigtiity, where, in truth, there is no real ambiguity. It places the Court which expounds the will in the situation of the testator who made it, and the words of the will are then vf left to their natwral operation^ 77. The propriety, and indeed the necessity, of thus referring to extrinsic circumstances, is strongly en- forced by the consideration, that the same words, prop- erly interpreted, mean different things under different circumstances. Thus, in the case of a bequest of 'stock,' 'jewels,'* or 'household furniture,'® different subjects are meant by a testator, accordingly as he may be a farmer or a merchant, a nobleman or a jeweller.* To these observations also may be added the considera- tion that a bequest of 'stock,' 'jewels,' 'household furniture,' or any analogous bequest, though it may convey no certainty of the testator's intentions to the mind of a stranger ; yet to any member of the tes- tator's family, or any friend to whom he may have ■ See Hiscocks «. Hiscocks, infra, pi. 183. = Supra, pi. 9, 10. ° See pi. 96, note, and Gore ®. Langton, ante, pi. 74. * In Colpoys v. Oolpoys, Jac. 461. ^ KeUy V. Powlett, Amb. 605. ° [Similarly, a conclusion may be drawn, as to the meaning of the testator's words, from the profession or position in life of the legatee. See the case of a bequest of " books," Willis ®. Curtois, 1 Beay, 193.1 11 54 PEOPOSITION V. ntrusted the exectitioii of Lis will, the intention may e as clear and certain iy force of the words of the nil alone, as if tlie legatees in tlie one case, and the jgacies in tlie other, had been described with the reatest technical precision. In the case suggested in former page ^ of a bequest of a gold watch, no tes- itor, if he had intended to bequeath the watch he ad left in England, could possibly have thought the escription he had used sufficient ; any testator, how- ver, intending that which he had with him in India, light reasonably think he had sufficiently described ;, even if -the fact that he was owner of the other Iso were present to his mind. To reject or exclude knowledge of collateral circumstances in cases like hese, would often make the sufficiency of a will depend pon the casual knowledge of an executor or trustee,' ather than the sufficiency of the testator's words. , The onstruction of wills giving legacies in the nature of ortions may be used to illustrate the propositions ow under consideration ; the relation in which the estator and legatee stand to each other being made the round of a peculiar construction.^ ^8. The decision, in cases such as those suggested nder the second example, would be, not that the tes- ator intercded merely to express this or that purpose, lut that he had — ^perhaps inaccurately — expressed it. 79. The following hypothetical case may, perhaps, •e considered as illustrating the extreme point to srhich the legitimate use of extrinsic evidence could »e carried in cases falling within the example now mder consideration. Suppose a legacy ' to one of he children of A.,' by her late husband B. Suppose, iirther, that A. had only one son by B., and that the ' 8upra^ page 149. ' Stones M. Hfinrtlfiv 1 Vos afiTi lfi7. fViflp fl7/«»«/T wcura Oi^ ti J. 1 PROPOSITION V. 155 fact was known to the testator. The necessary con- sequence, in such a case, of bringing the words of the will into contact with the circumstances to which they refer, must be to determiae the identity of the person intended. No principle or rule of law would, it is conceived, preclude a Court from acting upon the evi- dence of facts by which the meaning of an apparently anibiguous will would, in such a case, be reduced to certainty. It is the form of expression only, and not the intention which is ambiguous. It would be quite another question if A. had more sons than one, or if her husband were' living.^ 80. All the above observations are equally applicable to cases in which the description of the person or the thing intended by the testator is v/pon the face of the instrument inaccurately or imperfectly described^ as to other cases; the authorities show, in the clearest manner, that evidence of the nature here spoken of is in such cases, admissible.* >• 81. Example 4. — ^The legitimate effect of circum- stantial . evidence in cases in which the quantity of interest given by the wiU is the point in dispute, is not perhaps so well defined ^s in the cases which have already been stated. The proposition, however, that such evidence is admissible, where the quantity of in- terest is the point in dispute, is certain. 82. The arguments of the Court in Pocock v. The ' 3 Vem. 635. ' As to the distinction between an ambiguous description, and one which is merely inaccurate, see infra, pi. 308. ' Fonnereau ■». Poyntz, 1 Bro. C. C. 473, and see s. c. cited and commented on by Lord Eldon, 6 Ves. 401 ; Attorney-General n. Grots, 3 Mer. 316 ; s. c. on appeal, infra, Appendix No. II ; Abbot v. Massie, 3 Ves. 148 ; Price «. Page, 4 Ves. 680 ; Doe d. Smith v. Lord Jersey, 3 Brod. & Bing. 553 ; s. c. infra, pi. 95, n. ; Colpoys v. Colpoys, Jac. 451 ; Goblet V. Beechey, Appendix, No. 1. 156 PEOPOSITIOTf V. Bishop of Lincoln/ fully recognize the particular point now insisted on. The circumstances of that case were not such as necessarily to exclude the supposition that the words, " perpetual advowson," upon which the ques- tion in that case turned, were used by the testator in their strict and primary sense ; and thq Court there- fore properly refused to admit any other interpretation of the testator's Words. But if, in that case, no state of circunistances could have been suggested, in which the devisee could possibly have been benefited by the devise, without departing from the strict and primary sense of the testator's words, the Court must, in favor of the testator's intention, have accommodated their meaning to the circurtistances of the case, by analogy to the cases referred to under the first and second ex- amples, and upon the same principle. 83. In the recent case of Lowe v. Lord Hunting- tower,^ a bill was filed for the specific performaince of ^n agreement to piu-chase certain lands. The cause was heard before his Honor the Vice-Chancellor, on the 30th day of June, 1818, when the Court ordered, that a case should be made for the opinion of the Judges of the Court of King's Bench; and it was ordered, that the question should be : — ^Whether the plaintiff was seized of an indefeasible estate in' fee sim- ple, or of any and what other estate in the undivided moiety of the lands and hereditaments in question ? 84. The case was argued in Trinity Term, 1823, and the Judges certified theiir opinion to be, — that the plaint- iff was seized of an indefeasible estate in fee simple in the undivided moiety of the lands in question.' 85. A motion was afterwards made before his Hon- ' 3 Brod. & Bing. S7 ; and supra, page 73. ' 4 Russ. 533, n. = Lowe v. Manners, 5 Bam. & Aid. 917. PROPOSITION V. 157 our tlie Vice-Chancellor, that tlie case upon which the Judges had given theit opinion, as aforesaid, should be amended, — by stating therein certain facts collateral to the will under which the estate was devised; and that the case so amended should be sent back to the Judges for their opinion. The motion was supported upon a suggestion, that, if the facts sought to be introduced by amendment had been under the view of the Court, when the above-mentioned certificate was given, a differ- ent construction would have been put upon the will.^ 86. His Honor refused the motion. 87. The motion was afterwards made before the Lord Chancellor (Lord Eldon), when his Lordship made the following order : — " His Lordship doth order that the case whereupon the Judges of the Court of King's Bench have certified their opinion be amended, hy introducing therein a statement of the facts, that, at the date of the will, the plaintiif, in the said bill and the said case named by the name of Drury, was a bach- elor; that 'the testator's daughter, Anne Lowe, had attained the age of fourteen years ; and Edward Miller Mundy had five sons ; namely, Edward Miller Mundy, the younger, aged seven years; Godfrey Basil Maynal, six ; George, four ; Frederick, three ; and Henry, two years, or thereabouts ; and that, at the date of the codi- cil, the said plaintiff was a married man, and all the said sons of the said Edward Miller Mundy, the elder, were living, and bachelors ; and that, at the time when the said testator's daughter, Anne Lowe, attained the age of twenty-one years, the said plaintiff was a married* man; and, by inserting therein the following extract from the will of Lowe, the testator in the case named, (that is to say) * Whereas, at this time I cannot ascertain '- Ex relatione. 58 PROPOSITION V. r put a proper estimate upon my personal estate, and arieties of securities due to me, owing to the abuse of ricked and designing men; and consequently the get- ing in debts and securities due to me is precarious, and lay fall short of what is justly due to me, at the same ime can have no doubt that it must be considerably lore than my debts and legacies can amount to — I will nd desire my aforesaid executors will exert themselves a early applications, ^s from too much experience I ave found that delays are dangerous, and no confidence 5 to be put in specious appearances and promises ; nd that, as soon as my debts and legacies, as aforesaid, re discharged, T will that, as soon as they shall have he sum of £500 in their hands, it shall be laid out in ;ood security till it arrives to the sum of £5,000, and hen laid out in land as near the parish of Danby as hey meet with a purchase ; and the next £5,000 to be aid out in land in the parish of Spoondon and Chaddes- .en, and as contiguous to Locko as a purchase may offer, nd so alternately as it may arise.' — And it is ordered, hat the said case, when so amended, be referred back the Judges for their opinion, — Whether the facts so ritroduced are admissible as evidence in the said case; nd if so, whether, on the case so amended as aforesaid, hey are of the same opinion as before certified by- them, r how otherwise ? And his Lordship doth reserve the ansideration of all further directions, until after the udges shall have made their certificate ; and any of the arties are to be at liberty to apply to the Court as they tiall be advised." ^ 88. The amended case was argued before the Judges P the Court of King's Bench on the 18th and 21st ays of May, 1824, and the following certificate was ' Eeg. Lib. B. 1831, fol. 2041. PROPOSITION V. 159 returned by them : — " This case has been argued before us by counsel ; we have considered it, and are of opinion, that the facts ordered to he introduced into the case are admissible in evidence i and, on the case so amended, we are^of the opinion before certified. C. Abboit. J. Batlet. Gr. S. HoLKOYD. T. LiTTLEDALE." 89. On the 10th day of December, 1825, the cause came on upon the equity reserved, and a specific per- formance of the contract was decreed. 90. This case, which has been recognized in the re- cent case of Miller v. Travers,^ proves in the clearest manner the right of a Coiirt of law, where the estate or ^quantity of interest disppsed of by a testator is in dis- pute, to -look out of the will and be guided in the con- struction of it by the effect (if any) which the circum- stances of the case may have upon it. ' 91. In Gall v. Esdaile,^ which came before the Court upon a special case, the devise was as follows : " As to the rest of my estate, my two houses in S. and T. I give to my wife for life, and, after her decease, that in S. to my daughter, the other between my two sons. The rest of my estate, of what kind* soever, one-third to my wife, and the rest equally among the three children." The testator had no real property hut the two houses. The question was, whether the daughter took an estate for life, or an estate in fee, in those houses. Tindal, C. J., said : " It aids this construction (giving the daugh- ter a fee) that the testator had no other real property ; " and Alderson, J., said : " I should have had some dif- ' 8 Bing. 344/ ' 8 Bing. 323 [and see 1 Russ. & Myl. 540]. .60 PROPOSITION V. iculty if the case liad not stated that the testator had lo other real property ; but when that is stated, and he residuary clause may apply to personal property, he devise to the testator's wife and^aughter, standing mconnected with the residuary clause, is sujBficient to five the daughter a fee." ^ 92. Another case in point is the construction of a levise to A. and his heirs^ and if he shall die without •sirs, then to B., where B. is capable of being collateral leir to A. In that case, the word heirs will be con- trued heirs of the lody} So, the effect of a devise to ^., after the death of B., according to a well-known ule of law, will vary according to the relation in which \.. and the testator stand to each other. 'If A. be heir- »t-law to the testator, B. will take a life estate in the ' and devised. If A. be not heir-at-law to the testator, B. will take nothing.* 93. The cases referred to in a former page ^ in which he words in default of issue or on failure of issue have )een construed to mean issue living at the death of the estator, illustrate the same point, although (as before ibserved) an important principle appears to be sacri- iced by the decisions which have been come to in those ases. 94. Example 5. — ^It is upon the principle before ad- verted to, namely, that all writings tacitly refer to the xisting circumstances under which they are made, that Courts of law admit evidence of particular customs and Lsages in aid of the interpretation of written instru- aents — whether ancient or modern — whenever, from the ' [See Vick «. Sueter„3 Ell. & Bl. 219.] ' Feame,'466; Id. 7. = Horton ». Horton, Cro. Jac. 74. [1 Jarm. Wills, 2nd ed. 445.] • Supra, pi. 50. PKOPOSITl'ON V. 161 nature of the case, a knowledge of sucli customs and usages is necessary to a right understanding of the in- strument.^ The law is not so unreasonable as to deny- to the reader of any instrument the same light which the writer enjoyed. 95. Examples illustrating the Fifth Proposition above stated might be multiplied without end.^ ' 1 Phil, on Bv. 558, 7th ed. [Vol. 3, ch. 7, sec. iii, 9th ed.] ' In support of the general proposition, that Courts of law will look at extrinsic circumstances in aid of the construction of a written instrument, see per Lord Hardwicke in Goodinge v. Q-oodinge, 1 Ves. sen. 231 ; per Lord Thurlow, in Jeacock ® Falkener, 1 Bro. C. C. 395 ; in Green v. How- ard, 1 Bro. C. 0. 32 ; and in Fopnereau v. Poyntz, 1 Bro. 0. C. 473 ; per Lord Loughborough, in Mackell v. Winter, 3 Ves. J. 540, 541'; per Law^ rence, J., in Leigh v. Leigh, 15 Ves. 93 ; per Lord Manners, C, in Crone v. Odell, 1 Ball & Bea. 480 ; per Sir T. Plumer, in Beachcroft r. Beachcroft, 1 Madd. 430 ; and in Colpoys v. Colpoys, Jac. 451 ; per Lord Eldon, in Oakden v. Clifden, Line. Inn Hall, 1836, MS. ; [per Sir L. Shadwell, in Blundell v. Gladstone, 11 Sim. 486.] See also Lane v. Lord Stanhope, 6 T. R. 345 ; Doe d. Le Chevalier «. Huthwaite, 3 Barn. & Aid. 633 ; Doe d. Gibson «. Gell, 3 B. & C. 680 ; Pocock v. Bishop oiF Lincoln, 3 Brod. & Bing. 37 ; Alford v. Green, 5 Madd. 95 ; Goodwrighfc v. Downshire, 3 Bos. & Pul. 608 ; 1 New Rep. 344 ; Wilde's case, 6 Rep. 16 ; Lansdowne v. Lans- downe, 3 Bligh. 60 ; and see the arguments of counsel in the recent case of Pycroft «. Gregory, 4 Russ. 536 ; Clementson v. Gandy, 1 Keen, 309 ; King V. Badeley, 3 Myl. & K. 417; Gord «. Needs, 2 Mees, & Welsby, 149, infra, pi. 183 ; Hiscocks v. Hiscocks, 5 ^ees. & Welsby, 363, infra, pi. 1 83 ; [Rey- nolds V. Whelan, infra, JProposition Seven.] The same principle of con- struction applies to deeds. There cannot, indeed, be any difference in this respect between deeds or other writings and wills. Deeds requii'e particular words in particular cases to express a given purpose ; but wherf that requi- sition is-complied with, the rules of construction must be the same, for the intention is the object sought for in all alike. See Wright v Kemp, 3 T. R. 470. Accordingly, in Doe d. Jersey v. Smith, 3 Brod. & Bing. 553, Bay- ley, J., says : " The evidence here is not to produce a construction against the direct and natural meaning of the words ; not to control a provision which was distinct and accurately described ; but, because there is an am- biguity tipon the face of the instrument ; because an indefinite expression is used, capable of being satisfied in more ways than one ; and I look to the state of the property at the time, to the estate and interest the settlor had, and the situation in which she stood with regard to the property she was PROPOSITION V. 96. Thej appear to justify tlie conclusion, that- ^ery claimant under a will has a right to require ; a Court or construction, in the execution of its e, shall — by means of extrinsic evidence — place if in the situation of the testator, the meaning of )se language it is called upon to declare."^ It fol- 8 that, — '^ with the light which that situation alone rds, the testator's meaning can he determvried hy a ■rt, the Court which so determines does, in effect, de- e that the testator has expressed his intention with ivnty, or, in other words, that his will is free from nguity? There is no other criterion of legal cer- \ty in a will. ^ng, to see whether that estate or interest or situation would assist us idging what was her meaning by that indefinite expression." ee also Sir John Eden v. The Earl of Bute, 3 Bro. P. C. 679 ; Countess tielboume v. Inchiquin, 1 Bro. C. 0. 348 ; King v. The Inhabitants of don, 8 T. R. 379 ; and per Ashurst, J., in Doe v. Burt, 1 Term. R. 703! Vendors, p. 142, 6th ed. ; Simons «. Johnson, 3 B. .& Adol. 175 ' h «. Wilson, 8 B. & Adol. 738; Ponton v. Dunn, 1 Russ. & Myl. 403- s, supra, pi. 58, n. In the recent case of Doe d. Templeman i). Martin, as reported in 1 & Manning, p. 534, Parke, J., said : " I think facts and circumstances ing to the subject of the devise are admissible ; such as possession by lestator, the mode of acquiring local situation, and the general state of ;estator's property. The Cburt may take such things into considera- , so as to put themselves in the place of the testator, and then see how the s of the wiU affect the property.''^ And in Guy v. Sharp, 1 Myl. & K. July, 1838, the Lord Chancellor said, " I may, however, observe gene- ■, on the reception of extrinsic evidence, with a view to aid the con- ation and give explanation, not to alter or to control the sense — a pw- for which it can neoer he received — ^that there is a manifest difference reen the declarations, whether verbal or written, of a testator, and the if of facts and dreumstances, by the knowledge of which the Court, n called upon to construe, may be placed in the same situation with the y who made the instrumsnt, and may thereby ie the ietter able to under- d his meaning:" [Thompson v. Hempenstall, 13 Jur. 815 ; Doe d. mas V. Beynon, 13 Ad. & Ell. 431.] ' Infra, pi. 198-304. PEOPOSITIOII V. 163 91. The case of Doe d. Oxenden v. Chichester (su- pra, p, 72) may at first sight appear at variance with the generality of the conclusion stated above ; but, in real- ity, it is not so. It was decided, in that ease, that the words of the will were sensible as they stood, with refer- ence to extrinsiG circumstances, and the evidence was tendered for the express and admitted purpose of prov- ing, that the testator meant something different from what his words, strictly interpreted, expressed. This, according to the Second Proposition stated above, could not be done. [Parol evidence in aid of the construction is admitted more freely in America than in England.^ In New York, however, the English rules are strictly enforced,^ and parol evidence is only admitted to explain a latent ambiguity.' [In Perkins v. Jewett,* parol evidence was received of the purposes for which a testator bought a certain homestead, in order to determine whether it passed under a devise of a " house- lot,"' although the devise could be satisfied without recourse to parol. But, this decision can hardly be relied on as having any authority of a general nature, or as applicable to circumstances at all different from those respecting which it was pronounced. [Parol evidence was held admissible in Ennis v. Smith' to explain the meaning of the phrase " all iny effects." In Smith V. Bell,^ it was also held that parol evidence of the situation of the parties was admissible in aid of ambiguous expressions,. On the other hand, it has been decided in Wilkins v. Allen,' and King v. Ackerman,' that extrinsic evidence is not admissi- ble to control the interpretation of a will, but only to explain a latent ambiguity. This is the well understood rule of the New York courts. ' aee Sargent v. Towne, 10 Mass. 303. " Mann v. Mann, 14 Johns. 1 ; Jackson «. Sill, 11 Johns. 201. » See Tola v. Hardy, 6 Cow. 338; Allen ii. Allen 18 How. U. S. 385. * 11 Allen 9 ; see Fisher's Digest, Title Will; § 3. " 14 How. (U. S.) 400. « 6 Pet. 68. ' 18 H. 385. » 2 Bl. 408 ; See Warner ». Brinton, 15 Haz. Pa. Reg. 49. 64 PBOPOSMION V. [Evidence is not admissible in America to show that the ford " heir " in a will means any one but a statutory (not 16 common law) heir. The American law, therefore,! semlle, ppears to admit of parol evidence more readily in respect to le subject than to the object of a bequest if the gift is couched 1 general terms, such as to one's " heirs," " relations," &c. It mnot, however, be too emphatically or too often stated lat the tendency of modern decisions in all the States is to pproximate to the New York rule, which admits of parol vidence only in the case of a latent presumption or an am- iguity, that is to say, when the primary sense of the terms in le will fit no subject or object in particular. [In England, too, there is a progressive tendency to solve n ambiguity by construction, if possible, and not by extrinsic vidence. The maxims error homvnis and falsa demonstratio re much used for this purpose both in England and in the Fnited States, although not unfrequently the description pre- ails over the name.' In this branch of law the late cases lone need be regarded as having any authority on a doubtful oint. [In the case of Hone v. K«nt,' parol evidence was admit- 3d to show what volumes of the commentaries the Chancellor ad at the time he made his will, in order to determine whether new edition of his work was comprised under a specific equest of " unsold commentaries on hand," or under a specific equest of the copyright. A different conclusion would robably be arrived at in England. The will spoke only from \ie death of the testator as regarded the Chancellor's per- jnalty, and as to the edition which was being printed there rere copies on hand. The case was one, it would seem, more roper for construction than for parol evidence. [SemMe, parol evidence will be admitted to show that a 3stator was in the habit of using the word " appurtenances " in certain sense.* The term sometimes passes land in a will. )f course, if the gift cannot be satisfied at all according to • "Wagner's App. 43 Penn. St. 103 ; see Greeiileaf on Evidence, vol. I, 389. = 6 N. Y. 380 ; reversing s. c. 11 Barb. 315. » Gulliver d. Jeffries, v. Foyntz, 2 Bl. 726: PKOPOSITIOK V. 165 the primary sense of the terms used, parol evidence is admis- sible of the testator's habits. But, in the United States evid- ence of such habits is sometimes admitted, not merely to give words some force, but to extend their meaning.^ This is never allowed iii England if the primary sense of the terms is at all sensible and operative. [In Gulliver d. Jeffries v. Poyntz,' two closes of meadow and six acres of arable land and a house were conveyed to the testator as " a messuage or tenement with the appurtenances." They were held to pass under a devise of " three messuages, with all houses, barns, stables, stalls, etc., that stand upon or belotig to the said messuages." This extension of the meaning of the term messuage was adopted by the light thrown on the case by parol evidence. Jarman,^ however, considers that such evidence would not now be admitted, and that the case, therefore, is infirm. On principle, the evidence seems to be inadmissible if the word appurtenances could be otherwise satisfied. The case would, however, doubtless be followed in America, and parol evidence be received here of the local mean- ing attributed to the terms " appurtenances," " farms," " mes- suage," &c.* [The singular number will not always carry the plurat; nor is parol admissible in England to show that the testator meant the plural.* The case cited would probably be differently determined in the United States. The testator devised his close in the occupation of J. W. H^ had two closes in the occupation of J. W. It was held that the devise was void for uncertainty, as the parol evidence only showed that the testator intended to comprise both closes under the singular number. Now, the want of any specification of parcels by the testator showed that he meant to devise both. The contrary rule, however, has been established since Lord Bacon's time : ^ or, rather, an equivocation is presumed, so as to admit of the ' Ferguson v. Mason, 3 Sneed, 618; Gunnaway «. Shapley, 1 Caldwell, 573 ; Sutton v. Sutton, 5 Harring, 459 ; see, however, Cromer v. Pinckney, 3 Barb. Ch. 466 ; Weston v. Foster, 7 Met. 397. ' 3 Bl. 736 ; s. c. 3 Wils. 141 ; 1 Jarman, 708. » Aldrich v. Gaskill, 10 Gushing, 155. * Richardson v. Watson, 4 Bam. & Ad. 787. ' " See infra, pi. 197. ' PROPOSITIOK V. uction of parol evidence of intent. But, why should not' parol evidence be as competent to pass both closes as to 3ify which of the two was intended to be conveyed by the ator. Besides, when a proprietor classifies all his lands as estate, manor, or close, this is in the nature of a pet or nick ]e under proposition four. When the. gift is thus both msible as uncertain and equivocal, the parol evidence ought, principle, to be admitted to pass all that the testator in- led. [In Doe d. Allen v. Allen,* a testatrix devised land to her ;her, T. A. for his life, and after his decease, to John A., adson of her said brothe^, T. A., his heirs and assigns, rged nevertheless with the bequest of £100 to each and •y of the brothers and sisters of the said John A. At the 3 of making the will, there were two grandsons of T. A. led John, but one of them only had brothers and sisters, court, nevertheless, held that parol evidence was admissible id of the construction, inasmuch as the bequest in the wiU Id apply to the second T. A., as he might in time to come 3 brothers and sisters.* Parol evidence is not admissible of the testator's declara- s at the time of his making the will that a devise to children not to include his daughters,' nor can the acquiescence of a ried daughter be relied on for that purpose.* The testator's aration, too, that he makes a will merely because he was it to go on a journey, does not render the will contingent ny manner upon his return or non-return.' Oral evidence is admissible to show that a person who left iter's service was still regarded by him as his servant, and of the class to whom a bequest to servants should apply.' ! ruling is inconsistent with principle, and is calculated to k down jpro tanto the existing securities against nuncupa- wills. Although relations by affinity are not, as a rule, i Jurist, 985. Bee, however, Osborne e. Vamey, 7 Met. 301. Weatherhead i>. Baskerville, 11 fL. 339; see Shearman «. Angel, Bai- h. 351. ' II. Tarver ». Tarver, 9 Pet. 174 ; see Gregory v. Cowgill, 19 Mo. 415. Eerbert ». Keid, 16 Ves. 481. PEOPOSITION V. 167 comprised under general terms designating kindred, yet, parol evidence is admissible to show that the word nephew means nephew of testator's wife.^ The case is, as it were one of a nick or pet name. The court, however, in Grant v. Grant, considered that the primary sense of the word nephew included nephews by affinity. [The principle established by the last two cases cited appears to be that a generic name, such as " servant," " nephew," is to be very liberally construed, and that, even where it is sensible and operative according to its popular signification, yet, that its legal primary meaning is more comprehensive than the popular sense. " Servants " may thus mean past, present, or future ser- vants, and nephew may denote a wife's nephew. These cases, and the inferences to which they lend support, are wholly con- trary to principle, and to proposition two of Sir James "Wigram's axioms. They are in harmony, however, with the received law of parol evidence in some of the United States, but are wholly at variance with the current and tendencies of both- the British and American courts. The authority of these cases, therefore, is not likely to be permanent. It is morally certain that they will be overruled. If Grant v. Grant continues law, why may not "children " include stepchildren,' or illegitimate children?* [Where a will does not apply with equal clearness to the different claimants, the case, in point of principle, seems to be one of construction, and not of extrinsic evidence, even though the will describes each of the claimants with sufficient legal clearness, if the others were not in question.* In such cases, however, parol evidence of the testator's circumstances will be admitted in England,' and of his intent in America.^ [In the construction of ambiguous expressions in a will, the ties which connect the testator with his legatees, and their mutual relationships, are all matters to be considered,' if the ' Grant v. Grant, 18 W. R. 230. ' Contra, Fouke «. Kemp, 5 Har. and I. 135. ' Contra, 2 Sneed, 618. " Doe d. Westlake v. Westlake, 4 B. & Aid. 57. ' Hiscocks v. Hiscocks, pi. 183. ' M parte Hornby, 20 Brad. Sur. 420. ' Smith V. Bell, 6 Pet. 68 ; see Warner v. Brinton, 15 Haz. Pa. Eeg. 49. 68 PKOPOSITION V. ascription in the will is either inaccurate or ambiguous. But lO extrinsic evidence can either enlarge or abridge the interest onferred in the wilV and if the terms of a will are insufficient a disinherit the heir, they cannot be aided by extrinsic evi- ence.' [It is not, however, every error in description that will admit f extrinsic evidence. Some particular person may be so escribed, as that upon the construction no doubt can be enter- lined that he was the person intended, although he is mis- escribed in some respects. For instance, in Delmare v. bobello,' Lord Thurlow, even held that a nun might get larried and have children, and consequently, as she suited the escription in the will in every respect, there was no ambiguity, od no ground for the application of extrinsic evidence. There , no fault to be found with this ruling, if the nun was young aough to have had children. Her religious name was, as his ordship suggested, but a part of the profession, and was not leant for the rest of the world. But, as she must have been f age when she became professed, and had been thirty years nun at the. date of the will, it is obvious that there was a itent ambiguity sufficient to admit of parol evidence. [In Holmes v. Constance,* there was a legacy to the children FKobert Holmes, "late of N'orwich, but now of London." A erson of this name had gone from Norwich to London at the ^e of fourteen, and had died in London a few years before, laving a child. The legacy was claimed, however, by the chil- ren of George Holmes, who was a relative of the testator and id been formerly of Norwich, but was then resident in Lon- )n and had several children, some of whom were intimate with le testator. Sir W. Grant, however, would not admit parol ridence to this effect. His honor considered that the descrip- 3n was not so inapplicable to Bobert as to admit of extrinsic ddence. His Honor also considered that George was the person tended, thafthe meaning of the word late was not recently, it formerly, and that the testator might not have been aware ' King v. Ackerman, 2 Black. 408. ' Allen V. Allen, 18 How. (U. S.) 385. ' 1 Ves. Jun. 413 Sumner's ed. note supra, p. 70. * 13 Ves. 369. See Doe d. v. Westlake, 4 B. & Aid. 57. PEOPOSITION V. 169 of George's death. It is not easy to reconcile this case witli the host of similar instances of defective description, to explain which parol evidence has been admitted. [In New York, however, the relative situation of the testa- tor's children cannot be shown by extrinsic eTidence, if there is no change ia their circumstances between the making of the will and an alleged revocation thereof.^ " [It sometimes seems hard to determine whether a case falls under Proposition Three or Seven ; in other words, whether parol evidence may be admitted only of the circumstances of the testator, and not directly of his intent and declarations respecting the meaning he attached to the expressions in his will. For instance, in the case of Smith v. Smith,^ a legacy was left to Mary S., wife of' Nathaniel S. Her husband's name, however, was Abraham, but Sarah S.'s husband's name was N athaniel S. U pon the extrinsic evidence and circumstances it was held that Mary S. was the person intended. . This was a' case which would seem to fall properly under Proposition Three. There was not an absolute necessity to resort to extrinsic evi- dence at all in aid of the construction. The court might at once decide that the person intended was Mary S., and that the erroneous description of her husband was merely so much false demonstration. As the court could dispense with parol, there- fore, it seems to follow that it should necessarily have done so, except the case should be deemed to fall under Proposition Four, according to which pet names, names by repute, and familiar designations may be proved by parol. If it were thus proved that the testator used to call Sarah S. by the name of Mary, this evidence would be admissible, and would be the means of passing the property to Sarah. But, where the ambigaity did not spring from this source, but was owing to false demonstra- tion, the case would seem to fall under Proposition Three, and parol evidence not to be admissible of the testator's intention. [In cases like that of Smith v. Smith, the most important part of the description is the name of the legatee. Any false addition will generally be rejected as surplusage, and will not * Betts «. Jackson, 6 Wendell 173. = 1 Edw. ch. 189; s. c. 4 Paige, 271. 12 I PROPOSITION V. ry the gift with it. Yernor v. Henry ^ was a case of this jription. A legacy was given to " James Vernor Henry hew," and son of Elizabeth, a deceased sister of the testa- James Yernor Henry, and Eobert E. Henry, each med the legacy on the following grounds. James wias not hew but grand-nephew to the testator, and was not the son the grand-son of Elizabeth. Eobert, on the other hand, 1 nephew to the testator, and only surviving son of Eliza- i at the date of the will. Upon the extrinsic evidence, the rt held James to be entitled. Even when parol evidence is litted, its weight is often affected by its relations to the :■ and the rules of construction which are temporarily sus- ded for its admission. In the case last cited, for instance, question seemed properly to fall under the head of Veritas linis, etc., and not to be open to parol evidence at all in aid he construction. [Parol evidence is never admitted to show the quantity of !rest intended to be conveyed. In Strode v. Lady Falk- i," letters and oral declarations of the testator were offered how what the testator intended to include under the clause 1 other my lands, tenements, and hereditaments, out of lement." But the court rejected the evidence and alleged t the will should stand or fall on its own terms, where the lence adduced related to the intention of the testator. But, if parol testimony went to show not merely what lands were of settlement, but also the quantity of interest intended to jonveyed, the court would have rejected even evidence of testator's circumstances as well as of his intention.' [As Sir James "Wigram observes, the cases he comprises un- the Fifth Proposition are really included under Proposition fee, or else they belong to Proposition Seven. Latent ambi- ties can arise only with respect either to the subject or objec^ the gift. All extrinsic evidence admissible under Proposi- 1 Five is thus equally admissible under Proposition Three. )position Four relates rather to judicial cognizance than to dence. ' 3 Watts, 385. ' 3 Ch. Cas. 98 ; see Mann v. Mann, 14 Johns. 1 ; 1 Greenl. Ev. 390. ' Rogers v. Wheeler, 22 Wendell, 148. PKOPOSITlOir T. lYl [Parol evidence is inadmissible to raise a case of election.^ ^ The cases cited show that the law on this point has been com- pletely settled since Sir James Wigram wrote.* [As it is also the tendency of modern cases to, transfer ques- tions of description from the sphere of parol evidence to that of construction, it is extremely doubtful whether parol evidence would, at the present day, be admitted directly in any of the United States to show the quantity of interest intended to be given to a beneficiary by will, although th^ high authority of Sir James Wigram appears in Proposition Five to be in favor of admitting such evidence. No case has yet been de- cided in accordance with his opinion on this point. It seems, therefore, to be certain that the quantity of interest intended to be conveyed never can be proved by parol. But, if a certain disposition in a will is wholly insensible in one sense of its terms, this, may indirectly show what interest is conveyed by another gift in the same will. An exception thus often aids the construction. On the other hand, where another or a residuary limitation is sensible, this will, of course, not cut down a previous sensible gift of a fee or other absolute interest. This was all that was decided in Gall v. Esdaile.* The court considered that a specific devise in that case was sufiicient in its terms to pass a fee. The fact, that the testator had no other real estate than certain houses thus devised, showed also that the residuary clause was unconnected with the devise of realty, and did not modify the primary sense of its terms. But, no parol evidence was admitted except on the question whether each clause was sensible or not. The ulterior question, what quan- tity of interest passes, is always one of construction.] 98. In limiting the evidence spoken of in the Fifth Proposition to material facts, the generality of the Propo- sition contended for, respecting the admissibility of ex- planatory evidence'^ in aid of the exposition of wills, is ' Clementson v. Gandy, 1 Keen, 309 ; Stratton ■». !peat, 1 Ves. jun. 285 ; Sumners, ed. note 3, by M. Hovenden ; Doe d. Chichester, 4 Dow. 76, 89, 90 ; see Waters «. Howard, 1 Maryland, ch. Dec. 112; Dixon v. Sampson, 2 You. & C. 556 ; 1 Jarm. 393, ei sequ. ' Supra, -plAS. '.8 Bing. 333. ' * Prop. V. 72 PKOPOSITIOU V. Q no degree broken in upon. This limit is imposed by he general laws of evidence, and not by anything pecu- iar to the subject to which it is here applied. The only [uestion to which this particular subject gives rise, is his : By what iests is the materiality of a given fact to >e tried ? The answer to this question must be taken rom the general laws of evidence, and will be found to iresent itself in a clear and practical form. 99. Thus, the Second Proposition (p. 66) asserts, hat where the words of a will, strictly construed, are snsihle with r^erence to extrinsic circumstances^ their trict and primary meaning, and no other, shall prevail. b will follow that any fact, which, according to the or di- ary rules of evidence^ would prove or tend to prove bat the circumstances of. a case were such as to admit f the testator's words being stri'ctly construed, or that bey were not capable of a strict construction, would be material fact,:within the meaning of the Fifth Propo- ition. 100. Again, the Third Proposition (p. 103) asserts, bat where the words of a will, strictly interpreted, are isensible with reference to extrinsic cwcumstamces, a 3condary sense of the' words may be put upon them rovided the circumstances of the case be sucb as to sat- ify a court that the testator (who must have had some leaning) intended that which is ascribed to Hm. From bis, it will follow, that any fact will be material, in ases falling under the Third Proposition, which, accord- %g to the ordimmry rules of evidence^ proves, or tends to rove, that the ci/rcu/msta/nces of the case are such as to dmit of or require the secondary interpretation of the fords which may be contended for, and , evidence of an pposite tendency must, upon general principles, be ad- lissible also. PKOPOSITION V. 173 .101. The Fourth. Proposition requij:es no comment in this place. 102. It is obvious, from the preceding observations, that the purpose for which extrinsic evidence may be ad- duced in a suit to execute or avoid a will, may undergo sioccesswe changes; for the first question will be, whether the words are sensible as they stand ; and, if that ques- tion be answered in th.e negative, a second will arise, namely, whether their meaning is clear in any other sense. It is obvious, therefore, that the question of ma- teriality must shift with the succession of purposes for which the evidence may be adduced. 1'03. In practice, an opportunity will generally offer of objecting to the admission of evidence, the material- ity of which is questionable, as in Doe d. Oxenden v. Chichester,^ and Mounsey v. Blamire;^ and upon the discussion to which the objection will give rise, the ma- teriality of the evidence will be considered and deter- mined, and the evidence will be admitted or rejected ac- cording to the determination; Where no such oppor- tunity offers, it seems, from the case of Lowe v. Lord Huntingtower,* and Doe . Bishop of Lincoln, 2 P. Wms. 135; Pendleton v. Grant, 2 f^ern. 517; s. c. 1 Eq. Abr. 230 ; Dayrel v. Molesworth, 1 Eq. Abr. 230; )ocksey «. Docksey, 3 Eq. Abr. 415 ; but see s'. c. 11 Vin. Abr. 153 ; Mas- srs V. Masters, 1 .P. Wms. 430 (1^. B. a Charity case) ; and see per Lord Ihancellor Brougham, in Guy ». Sharp, 1 Myl. & K. 602, supra, pi. 96, ote- [Kirk D. Eddowes, 8 Hare, 509.] "4B.& Ad 01.787. * 1 Keen, 309. [The precise object of the eyidence was to show that lie testatrix intended to pass under a general bequest certain property 1 which she had only a life interest, supposing it to be her own abso- utely, so as to put a legatee, who had an interest in the property, 9 his election.] PROPOSITION VI. 183 in tlie will, which without the aid of extrinsic evidence cannot l)e understood. Here the inteiition to dispose is clearly expressed by the testatrix; there is no am- biguity in the expression she has employed ; and ex. trinsic evidence for the purpose of contradicting the intention is inadmissible." In King v. Badeley/ a testator having devised his estates in a particular way, directed, that a different disposition of them should take place, "in case certain contingent property and effects in expectancy should fall in and become vested interests to my children," etc. The children being entitled to no contingent interests at the date of the will, the Court refused to admit evidence for the pur- pose of showing that the testator referred to expecta- tions from particular incidents which had afterwards been realized. The Master of the EoUs said, — " If at the making of the testator's will, his children had been entitled to any contingent interests, evidence would have^been plainly aditnissible to ascertaia those inter- ests, because the expression of contingency has a de- ' finite legal meaning, and id cerPwm est quod ceri/wm reddi potest ; and the evidence would have explained, but would not have added to the will. To admit evi- dence to show that the testator referred to expectations from Mr. Ewer, would not be to explain the expres- sions of his will, but to add to his will that which he has not expressed. The evidence offered must, there- fore be rejected." In Preedy.'W. Holtom,^ the testator devised to A. the messuage in S., in which the testator resided, with the buildings to the same adjoining, and all those several closes in S. aforesaid, called C, D., and E., (with the brick-kiln erected thereon), and ,F., with their appurtenances, part of the farm and lands ' 3 Myl. & K. 417. - 4 Adol. & Ellis, 76. 84 PEOPOSITION VI. hen in testator's own occupation. The will then coi lined a devise to B. of a second messuage, and a] ther the testator's lands. Under this will B. claimed wo cottages in S.^ which, when the wiU was madf djoined the messuage in which the testator residec >ut were not in his occupation, and were divided fror he messuage by a wall built by the testator. For th lurpose of showing that the cottages claimed by I ?ere intended to pass under the residuary clause, ev ence of declarations, made by the testator when gi^ ag instructions for his will, was tendered. The Coui learly held, that evidence was admissible, only to shoT ?^hat the state of the testator's property was, but no for the purpose of construing the expressions of th ^ill, and giving them a more extended meaning tha he words themselves bear." 123. It may, therefore, it is conceived, notwithstanc ag the opinions expressed by Lord Cowper and Si ohn Strange, be considered as settled, that- the rule ,c iw which excludes extiinsic evidence to prove intentia. 3 not subject to any such exception as their opinion ppear to point at.^ 124. It will be seen, on examining the reports of th ases referred to in support of the Sixth Propositioi bat, in many of them, the evidence tendered consist© f dedaraUons by the testator, or of instructions give y him for preparing his will. Such evidence is, ol iously, inapplicalble to an inquiry, in which the quei ion is, not what the testwtor meant to express, but whg is words do express. In others, of the same class ( ases the precise nature of the evidence tendered dot ot appear by the reports; but, from the nature of th oint in dispute in those cases, it is clear that faci ' See obaervations infra, pt. 150 «« seq. PROPOSITION VI. 185 alone could not, by any explanatory eflfect upon tlie ■words of the wjll, have shown that the will itself ex- pressed the intention ascribed to the testator. The purpose, therefore, for which the evidence in those cases' was tendered, must have.been that of proving an inten- tion which the will itself did not express; and the cases, in conformity with principle, are decisive, that, for such a purpose, extrinsic evidence, as a general proposition, is inadmissible. 125. The cases most strongly illustrative of the rule by which averment of intention is excluded, are those in which the language of the will, although it might, in point of strict legal construction, require one inter- pretation, was capable, in. the ordinary use of language, of the secondary 'interpretation which it was the object of the evidence to give it. Yet, it appears that, even in such cases, evidence to prove intenUon, as a general proposition, is -inadmissible. ■ 126. " Voidfffr wncertamty.^'' — ^As the effect of the Sixth Proposition is to preclude a Court from ascribing to a testator any intention which his written will does not express, whilst the Third Proposition leaves a wide field of exposition undefined by any positive rules, it may with reason be said, that, in the application of the Third Proposition to the exposition of a will, conjectural interpretation is likely often to usurp the place of judicial exposition ; and it may be asked, how, in the application of evidence of collateral facts to the exposition of wUls of doubtful meaning, is exposition to be distinguished from conjectural interpretation ? 12^. The answer to the question in aU its bearings, is by no means easy. 128. In cases in which the meaning of the words is either settled by decision, or clear upon the will 13 186 PROPOSITIOlfr VT. s itself, and in wliicli the facts of tlie case do not neces- sarily exclude the supposition tliat the words were used in their decided or apparent sense, the Second Propo- sition albove stated leaves nothing to the discretion of a Court ; and exposition, in the strict observance of •that Proposition, is safe against the inroads of conjec- ture. In those cases, however, in which (the strict and primary sense of the words Ijeing excluded by the circumstances of the case) it is left to the Court to explain them in some secondary or popular sense; or in which it is doubtful whether the words express any certaiu meaning: the judgment and discrimination of the Court is, of necessity, brought into action, and the difficulty suggested by the question now under consideration presses with considerable force. It is impossible, with reference to such cases, to draw any precise line, by which, in the application of extrinsic evidence to the exposition of a wUl, exposition is to be distinguished from conjectural interpretation. The test to be applied in each particular ease is this, — ^Do the words of the vriU, when all the circumstances of the case are known, express the intention which is ascribed to the testator? The Court which interprets the will must be satisfied that they do so, and no other rule can, in the abstract, be laid down. 129. K it be said, that this is raising a question rather than propounding a rule, — the answer to such an observation must be, that the test is as precise as the nature of the subject will admit. The Master of the Eolls, Lord Alvanly, in deciding on a will of doubtful construction, does not appear to have thought that a more precise test could be proposed. "As to the irresistible inference," he says, "I do not know what is meant by that ; I admit it must be such an inference as leaves no doubt upon the mind of the PEOPOSITION TE. 187 person who is to decide upon it. It must be wresis- Uhle to my mmdr And in Attorney-General v. Grote,^ Lord Eldon said: "Individual belief ought not to govern the case, — it must be judicial persuasion." In the case of Goblet v. Beechey,* the inference that Nollekens meant models^ by the word "mod" was irresistible to the mind of the Vice-Chancellor. His mind was judicially persuaded that such was the sense in which the testator used the word. The mind of the Lord Chancellor was proof against the same im- pressions. The case is a fair illustration of the legal meaning of an i/rresistihle inference^ and a judicial per- suasion? [For the American law, and cases of uncertain testimentary gifts, the reader is referred to the supplementary treatise.]* ' Appendix, No. I. " Appendix, No. II. » 3 Ves. 113; and see 1 Ves. & B. 466; and 1 Mer. 193, in Bootle ». Blundell ; Attorney-General v. Grote, infra, Appendix, No. 11. * Chap, ii, §§ 13, 14 ; cha;p. xvi, §§ 4, 5 ; chap. ' xxvi, § 1 ; see, espe- cially, Winder ®. Smith, 2 Jones' Law (N. C), 337 ; Den v. McMurtrie, 3 Green, 276 ; Limbrey v. Gurr, 1 Mad. & Geld. 151 ; First Parish in Sutton ». Cole, 3 Pick. 233 ; Bartlett v. King, 12 Mass. 537 ; Piercy «. Piercy, 19 Ind. 467 ; Woods «. Woods, 2 Jones' Eq. 430 ; Townsend ■a. Downer, 33 Vermont, 335 ; , Janey v. Latone, 4 Leigh, 337 ; Trippe v. Frazier, 4 Har. & Johns. 446 ; Hammond ®. Ridgeley, 5 Har. & Johns. 345 ; Rothmaler v. Myers, 4 Desaus, 215 ; Drew v. Drew, 8 Foster, 489 ; Douglas «. Blackford, 7 Md. 8 ; McDermott v. United States Insujance Company, 3 Serg. & R. 607 ; Hill v. Bowman, 7 Leigh, 650 ; Trustees v. Peaslee, 15 (N. Hamp.) 268; Smith «. Smith, 4 Paige, 371; s. c. 1 Edw. Ch. 189; Neuthway v. Ham, Tamlyn (Eng.) 316; 1 Greenl. Ev. § 301 ; Wheeler v. Smith, 9 How. (U. 8.) 55, 79 ; Carter «. Balfour, 19 Ala. 814; Minot v. Boston Asylum, 7 Met. 416 ; 3 Story Eq. Jur. § 979(8. PROPOSITION VIL Nothwithstanding the Rule qf Loav, which makes a will void for uncertamipy, where the words, aided hy evi- dence of the material facts of the case, a/re insufficient to determine the testator'' s meani/ng, — Oov/rts of Lam, in certain special cases, admit extrinsic evidence of intention to Tnaks certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined : — -where the object of a testator'' s hownty, or the subject of disposition (i. e. the person or thing intended'), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the per- sons or things so described was intended by the testator} 130. A class of cases must now be referred to, in which — ^notwithstanding the preceding class of cases ' [The following case affords too happy an illustration of the liberal and practical spirit in which the Courts will apply the above Proposition, to be dismissed with a mere reference: — In Reynolds o. Whelan, 16 L. J. N. S. Ch. 434, the testator, Augustine Luck, by his will, dated in 1836, made the following bequest : — "I give to William Reynolds, one of my farming men, if in my employ at the time of my decease, the sum of £100." The testator, who was a farmer, had in his employ at the date of his will, and at the time of his death, two persons of the name of William Reynolds. One of them, the plaintiff, was a common farming servant ; and the other, who was called " Old WUl," performed a varietv of func- tions about the person, house, and farm of the testator. Soon after the testator's death, his executors, considering that Old Will was the pepon intended by the testator to be legatee, paid him the legacy. A suit was now instituted by the plaintiff against the surviving PROPOSITION VII. 189 Iby wHcli proof of intention appears, upon principle, to be excluded — the Courts have permitted the inten- executoE, for the payment of the legacy of £100 given to 'William Key- nolds. Some evidence was entered into, for>the purpose of showing that the testator intended the legacy for the person called " Old Will." It ap- peared that Old Will had been in the service of the testator and his father forty years at the date of the will of 1836 ; that the testator had made a will in 1831, which was in part as follows: — "I give to Richard Ainge, one of my farming men, £100, and to William Reynolds, another of my farming men, £50; " that in 1836, before the date of his second will, he told a witness that he had given " Old Will " £50,. and that he should leave him £100. Sir J. L. Knight Bruce said : — " The question in this case is, whether William Reynolds, the plaintiff, is the person to whom a legacy is given by the wiU of Augustine Luck in these words, 'To William Reynolds, one of my farming men, if in my employ at the time of my decease, a sum of £100.' To this legacy the plaintiff's title would be clear and unexcep- tionable, but for the circumstance that another man, also called William Reynolds, was also in the service and employment of the testator at the time his will was made, and at the time of his death. By this other Wil- liam Reynolds the money was claimed and, whether rightly or erroneously, paid to him by the executors, — ^the truth being that it certainly would have been correct to consider him as the legatee if the plaintiff had never been in the testator's service, assuming, as I do, that there was not a third William Reynolds. " The only question of any diflSculty is, I suppose, whether, at the time of the will being made, the William Reynolds who is not the plaintiff was one of the testator's ' farming men,' or a person to whom, without impro- priety or inaccuracy, the description of one of his farming men was then actually applicable ? If this question ought to be answered in the nega- tive, the plaintiff is, I think, entitled to a decree; if it ought to be answered in the affirmative, I consider the evidence goes to show that the legacy was intended for the other William Reynolds and not for the plaintiff. "The testator, a Northamptonshire gentleman, who was, I think, a bachelor or widower without family, seems to have been one of those per- sons of unostentatious habits who prefer the realities to the fancies of life. He farmed 200 or 300 acres of land, or more, wholly or partly his own. He employed upon his farm eight or nine fanning men, if not more, of whom Ainge, mentioned in his will as one of his farming men, was his overseer, or a kind of bailiff, under a less high name. Mr. Luck's domes- tic establishment seems to have been frugal and rustic. He had only two female servants; one of them a kind of housekeeper. He seems not to 190 PROPOSITION VII. tion of a testator to he made tlie subject of inquiry "by extrinsic evidence alone. have had a man or a boy in his service except mere farm lahorers, subject to the question whether that description belongs to the person who has received the legacy, or Ainge ? This William Reynolds, who has received the legacy, was the only male person, besides the testator, who lived in the house. He seems to have been one of that very useful order of men, well known to some of our old dramatists, who according-to the custom which, perhaps more frequently formerly than at present, prevailed as well here as everywhere else, in fanning as in other households, turned their hands to anything; which class however, especially since the practice of the division of labor, is fast disappearing. He was, in some sense, a household servant certainly ; I do not coUect that he waited at table, but he whetted the knives, and cleaned the boots and shoes. I do not say or infer that he attended the dressing-room, if any, of Mr. Luck. "Whether, in respect of him, the testator was a direct contributor to the revenue, or made himself so, does not appear; but I must believe (always speaking from that portion of the information concerning his maimer of life which the materials before me afford), that if he had been taxed with— I do not say taxed for — having a coachman, groom, gardener, footman, valet, or butler, he would have denied the charge ; and yet that it would have been incorrect or improper for him to hav^ described Old Will as — or that he was not in the habit of calling him, or that he might not honestly have called him — his groom, his gardener, his footmen, his butler, his coachman, or his valet, I am far from sure ; since in the exer- cise of the functions belonging to a majority at least, if not every one of such various departments of service with their very diversified names, this manifold sefving man seems to have passed his time, so far as he was not employed in other ministrations, which in a minor degree were at least perfectly ample ; for in the morning he milked the cows ; he also milked the cows in the evening ; he attended to them and the calves ; he waited on the pigs ; and, in addition to all this, lent a hand occasionally in the rick-yard, or otherwise upon the farm. If then he was coachman, groom, and gardener, if he was valet, footman, and butler, why may he not also have been a farming man ? To what other part of that description can the care of cows, calves, or pigs, be treated as belonging, — ^to say nothing of the rick-yard, or occasional work otherwise on the, farm-yard ? He boarded, and generally lodged, it is true, in the testator's house ; but that does not prove him not to be a ' farming man.' His wages were weekly wages, and, most certainly during a considerable part of his life, he was a farm laborer or & fann servant. " Upon the whole of the evidence legitimately capable of being re- garded upon the question, I am of opinion that the William Reynolds who is not the plaintiff was a person whom, at the time of the wiU being PEOPOSiTiosr VII. 191 131. In Selwood v. Mildmay,^ the testator, by his will, dated the 26th of January, 1796, gave to his wife, E. ,M., the interest and proceeds of £1,250, " part of my stock in the £4 per cent, annuities of the Bank of Eng- land, for and during the term of her natural life, to- gether with such dividends as shall he due upon the said £1,250 at the time of my decease;" and, after the decease of his wife, he gave the said stock to several of his relatives in certain shares and proportions, always Qalling it his "£4 per cent, stock;" and he disposed of the residue of his estate. The testator had not, at the time of making his will, or at any subsequent time, any £4: per cent, stock. At the time of his death, his per- sonal estate consisted only of some Long Annuities, household furniture, and leaseholds specially bequeathed. In February, 1792, the testator had some j£4 per cent, stock, which he sold oui In that month, and with the produce of which he purchased, in the same month, cer- tain Long Annuities. The attorney who drew the will deposed, that when the testator gave him instructions for preparing his will, he gave him, as part of his in- structions, a former will, by which he had given divers legacies, payable out of his stock in the £4 per cents. ; and that, the testator not having informed the depo- nent that he had sold out the stock, and invested the proceeds in the purchase of Long Annuities, he, the deponent, made the above mistake in the will. The made, it was not improper or incorrect to designate or describe as one of the testator's ' farming men.' He was in my opinion a fanning man, and something, or rather in some things, more ; but still a farming man. I dismiss the bill, therefore, although without costs, for I do not consider that the case is altogether free from difficulty."] " 3 Ves. jun. 306. See the observations upon this case, in Miller v. Travers, infra, pi. 181, 189; in Hiscocks v. Hiscocks, infra, pi. 188, [and in Lindgren v. Lindgren, infra, pi.' t^Z. note.] 192 PROPOSITION VII. Court was of opinion, upon tie evidence above stated, that the mistake should be rectified, and decreed ac- cordingly. 132. This case, although the evidence consisted of facts only, unconnected with the question of intention, cannot, it is conceived, be satisfactorily explained upon the principle of the cases of inaccurate description be- fore referred to.^ The evidence, in this case, did not establish any correspondence or agreement whatever between the description in the wiU and that of the subject intended. The testator had not (even imper- fectly) described the thing he meant to have described ; on the contrary, the evidence clearly proved, that he had by mistake described one thing where he meant another. The case would, in substance, have been the same, if the proceeds of the sale of the testator's £4 per cent, stock had been tra6ed into an investment in land, instead of Long Annuities ; in which case, it seems, his intention would have been disappointed.^ 133. In Doe d. Le Chevalier v. Huthwaite,' the teS' tator, after several previous limitations (which had ex- pired at the time of the action brought), devised his estate to "Stokeham Huthwaite, second son of John Huthwaite, for life, with remainder to his first 9,nd other sons and daughters, in strict settlement ; and, in default of such issue, to 'John Huthwaite, third son of the above-mentioned John Huthwaite, for life;'" with remainder to his first and other sons and daughters, in strict settlement. In fact, Stokeham Huthwaite was the third son of John Huthwaite, and John Huthwaite (the devisee) was his second son. The Court was of opinion, ^ Supra, pi. 65,66,67. ° 3 Ves. jun. 310 ; Hiscocks «. Hiscocks, infra, pi. 183. ' 3 B. & Aid. 632 ; [s. c. 8 Taunt. 306.] See the observatiQns upon the case of Hiscocks v. Hiscocks, infra, pi. 183 et seq. PBOPOSiTiON vn. 193 tliat evidence of the state of tlie testator's family and other circumstances was admissible; and ttat, upon such evidence being given, the jury might find whether he had made a mistake in the name of the devisee or not.^ It would be impossible, in this case, to adopt any construction which the words of the wiU would not, in some degree, contradict. It is not like the cases referred to in a former page,* to which the rule falsa demon- stratio non nocet was applied. The characteristic of those cases is this, — that the description, so far as it is false, applies to no subject, and so far as it is true, it applies to one subject only. The Court in those cases rejects no words but those which are shown to have no application to any subject. In Doe d. Le Chevalier v. Huthwaite, the entire description ia each case was inap- plicable to either of the sons, but dififerent parts of each entire description were applicable to each claimant.^ Neither claimant answered the words in the wUl. It could, therefore, only be by rejecting from the descrip- tion of each devisee a part which was applicable to the other of them ; or, in other words, it could only be by inference from circumstances, not supported by or recon- cilable with the language of the will, that the testator's intention could be effectuated, 134. The cases of Door v. Geary,* Dobson v. "Water- man,® Penticost v. Ley,° and Evg-us v. Tripp,"^ may also be referred to in this place, as cases respecting which it is (at least) doubtful, whether, they can be explained upon strict principles of exposition. ' It does not appear that any declarations by the testator were tendered in this case. See infra, pi. 183, Hiscocks v. Efiscocks. [Bradwin v. Har- pur, Amb. 373.] " Bupra, pi. 67. ' See 6 Term R. 676, per Lord Kenyon, C. J. * 1 Ves. sen. 355. ' 3 Ves. jun. 308, n. " 2 Jac. & W. 307. ' 6 Madd. 91. 194 PROPOSITION VII. 135. It may, however, be said of the cases of Sel- wood V. Mildmay, Doe d. Le Chevalier v. Huthwaite, ■and the other cases just referred to, that, inasmuch as the evidence by which the intention was ascertained consisted merely of facts collateral to the question of intention, no qualification of the rule, by which direct proof of intenUon is excluded, is, in those cases, judi- cially recognized. This must be admitted. The fol- lowing cases, however, are not open to the same ex- planation, but recognize and establish the proposition — that intention^ independently of the language of the will, has, in some cases, been the direct and immediate subject of proof. 136. In Cheyney's case,^ a.i>. 1591, it is said, if a man has two sons, both baptized by the name of John, and conceiving that the elder (who has been long- absent) is dead, devises his land by his wiU ia writing to his son John generally, and in truth the elder is liv- ing ; ia this case the younger son may produce witnesses to prove This father's mtent ; and in the same case it is farther said, — " And no inconvenience can arise if aver- ment in such case be taken, ia case of a devise by wiU ; for he who sees such wOl, whereby land is devised to his son John, cannot be. deceived by any secret invisible averment ; for when he sees the devise to his son John, he ought, at his peril, to iaquire which John the testa- tor intended, wTiieh ma/y easily he hnown Tyy Tivm who .wrote the will, a/nd others who were privy to his intent ; and if no direct proof can be made of his intent, then the devise is void for the uncertainty." 137. In Crounden v. Clarke,^ a.d. 1613, it is said, — if I devise land to my son John, having two of that name, averment who was meamt shall make this certain. 5 Rep. 68. [Bate «. Amherst, Sir T. Raymond, 82.] ' Hobart, 32 . PROPOSITION vn. 195 138. In Jones v. Newman,^ a testa1;rix devised the premises in question to John Cluer, of Calcot, under whoin the defendant claimed. The plaintiff gave evi- dence that, at the time of making the will, there vrere two John Cleurs, father and son ; and, therefore, that the devise was to the father, who died before the tes- tatrix, and so the devise lapsed. Upon this, the de- fendant offered to prove, by parol evidence, that the testatrix intended to leave it to John Cluer, the son ; but the Judge vsrould not suffer it. Upon a motion for a new trial, it was held, per totain curiam, that the Judge was mistaken. 139. In Hampshire v. Pierce, before stated,^ it was proved Jy declaration^ of the testatrix, that by " the four children," she meant the four children by a second marriage. The Master of the EoUs was clear that this was proper evidence, and acted upon it accordingly. 140. In Thomas v. Thomas,* the devise was as fol- lows: — Item, I devise to my grand-daughter, Mary Thomas, of LlechUoyd, in Merthyr parish, the rever- sion, etc."# The testator had a grand-daughter of the name of Elinor Evans, who lived at Uechlloyd, in Merthyr parish, and a great-grand-daughter, Mary Thomas, who lived at Green, in the parish of Llangam, some miles from Merthyr parish. At the trial, the plaintiff's counsel proposed giving parol evidence to show a mistake in the name of the devisee, namely, that when the will was read over to the devisor, he said there was a mistake in the name of the devisee, but that there was no occasion to alter it, as the place ' 1 Wm. Bl. 60. " Supra, pi. 31, and See Hisc.ocks v. Hiscocks, infra, pi, 183. " 6 Term E. 671. See the observations upon this case, in Hiscocks v. Hiscocks, infra, pi. 183 ; [and per Lord Brougham, in Lord Camoys v. Blundell, 1 Ho. Lo. Cas. 794] 196 PROPOSITION vn. of abode and the parisli where the devisee lived were sufficient to ascertaia the object of his bounty. The Judge admitted the evidence, but the Jury did not give credit to it. Upon a motion for a new trial, Lord Ken- yon, C. J., and Lawr.ence, J., both expressly said, that, for the purpose of showing whom the testator meatit by the ambiguous description in the will, deda/raUons by him at the time of making his will were clearly ad- missible in evidence. 141. In Price v. Page,^ Thomas Bell, by his will, after some legacies, gave to Price, the son of Price, the sum of £100. The plaintiff was the only person who claimed the legacy. Evidence of the rela- tion in which the plaintiff stood to the testaH;or was given ; and it was also proved, that the testator sadd he Tiad provided, or would provide for the plaintiff, and that he had left him something by his will. This latter evidence was relied upon in the judgment. 142. In Hodgson v. Hodgson,^ R. H. devised to the defendant 'H. several closes, paying £100, he (the tes- tator) owed to J. S., and £100 he owed by bond to one Shaw. It fell out, that the money due upon the bond was not due to Shaw, but was the money of Alice Beck, then the wife of one Fitch. The devisee of the land refused to pay the £100. The plaintiff examined Harvey, who drew the will, who deposed that the testator declared he meant the £100 due to the person who married Mr. Beck, of Lincoln; and another wit- ness deposed, that he meant the debt .for which C. was bound as surety. Decreed for the plaintiff", first at the EoUs, and afterwards by the Lord Chancellor, who declared he saw no hurt in admitting collateral proof to make certain ^q person or 'the thmg described. ' 4 Yes. jun. 680. [Phillips v. Barker, 1 Sm. & Gif. 583.] » 2 Vem. 593. PROPOSITION VII. 197 143. In Beaumont v. Fell,^ the testator gave a legacy of £500 to Catherine Earnley. No person of that name, but one Gertrude Yardley claimed the legacy. By the proofs it appeared, that the testator's voice, when he made his will, was very- low, and hardly in- telligible ; that the testator usually called this legatee of £500., Gatty, which the scrivener, who took instruc- tions for drawing the will, might easily mistake for Katy ; and that the said scrivener, not well under- standing who the legatee of £500 was, or what was her name, the testator directed him to J. S. and his wife, to inform him; who afterwards declared that Gertrude Yardley was the person intended. It was moreover proved, that the testator, in his lifetime, had declared that he would do well for her by his will. The Court said, that, in that case, the name only was mistaken, and that it was very material that no such person as Catharine Earnley claimed the legacy, which together with the proofs of the testator having a very low voice, and of his having usually called the plaintiff Gatty, instead of Gertrude, and often declared he would do well for her, was sufficient to entitle the plaintiff to the legacy. This case has frequently been referred to with approbation.^ 144. In Doe d. Westlake v. Westlake,* deda/raimm of the testator were admitted, for the purpose of proving which of several persons having the same name was in- tended. It was afterwards decided, that the evidence was inadmissible ; but the express ground of the latter decision was, that the will itself ascertained which per- son was intended.* ' 2 P. Wms. 140. See Hiscocks v. Hiscocks, infra^ pi. 183. " 6 Term B. 676; 7 Term R. 148; 3 Taunt. 156; MS. *(se, jpZ.'l46, j?i/j-a ; Miller v. Wavers, before the Vice-Chancellor, infra, pi. 147. ' 4 B. & A. 57 ; 8. c. eupra, pi. 35. * Supra, Proposition 11. 198 PROPOSITION vn. ■ 145. In Still V. Hoste/ a testatrix, by her. will, amoBgst other legacies, bequeathed tte sum of £100 " unto SopMa Still, the daughter of Peter Still, of Rus- sell Square." Peter Still had only two daughters, named respectively Selina and Mary Ann. The at- torney who made the wiU, and another, proved that Selina was the person meant. The Vice-Chancellor : " There can be little doubt that Selina Still is the per- son entitled to the legacy, but the other daughter being an infant, let it be referred to the Master to inquire who was the legatee' intemded by the description in the will of the testatrix." 146. In a case (with a copy of which, and of the opinions upon it, the writer of this work has been favored), a testator devised his estate in the county of A., to B. and her heirs. The testator had not, at the time of making his will, any estate in the county of A. He had estates in four other counties, C, D., E., and F, The estate intended for B. was in the county of E. The evidence by which it was proposed to prove the intention, consisted of the instructions given for pre- paring the will; the 'declarations of the testator made to his steward ; and a letter he wrote to B. about the time of making his will. The opinions of several gentlemen of the first professional eminence, two of whom now fill high judicial stations in this country, were taken upon this case, and all agreed in thinking the evidence admis- sible.* The case of Beaumont v. Fell was referred to by one of them as a case in point. 147. The Vice-Chancellor, on the 8th of July, 1830, decided a case, Miller v. Travers, which went the full ' 6 Madd. 193. " See further, Altham's case, 8 Eep. 153 ; Harding ». Suffolk, 1 Ch. Rep. 74; 3 Wills. 276 ; 2 Atk. 239, 240, 373; 1 Bro. C. C. 341 ; 19* Ves. 654 ; Evans «. Tripp, 6 Madd. 91. See, also, note, pi. 193, infra. PROPOSITION VII. 199 length of tlie MS. case wMcli Las been stated, and in its circumstances was scarcely distinguisliaWe from it.^ In that case, the testator devised all his freehold and real estates whatsoever, situate ' in the county of Lim- erick ' and in the city of Limerick, to trustees therein named and their heirs. At the time of making his will, the testator had no real estate in the county of Lim- erick, but he had a small real estate in the city of Lim- erick, and considerable real estates in the county of Clare. The principal question in the cause was, whether evidence was admissible to prove that the testator m- tended his estates in the county of Clare to pass by the devise, and that the word ' Limerick ' was inserted by mistake instead of ' Claire.' The Yice-Chancellor, upon a review of the authorities, was of opinion that such evidence was admissible, and directed an issue upon that principle. 148. The cases above cited exhibit, it is believed, a correct statement of the authorities for admitting evi- dence to prove mt&ntion, at the time the first edition of this word was published (January, 1831). 149. Upon this state of the authorities the observa- tions contained between the Ime in the next page and the line in page 136 (with the exception of a few ex- planatory observations, which have since been added) were made. The cases of Miller v. Travers, Gord v. Need, and Hiscocks v. Hiscocks have since been de- cided, and have settled many of the points to which those observations were applied. The observations, however, are retained in the present edition from an ap- prehension that some points may possibly arise which may not be considered as completely settled by these important cases. _ * Since reported, 8 Bing. 344. 200 PEOPOSixiosr vit. 150. From these cases/ it appears, that evidence of intention has, in some instances, been permitted, and a class of exceptions to the general rule, by which direct proof of intention is excluded, is thereby estab- lished. 151. The principle (if any) upon which the excepted cases, taking them collectively, are founded, is by no means obvious. 152. As to those cases in which the description in the will is applicable indifferently to, and sufficiently describes, more than one subject, the principle upon which they proceed may, perhaps, be explained ; for in such cases, although the words do not ascertain the sub- ject intended, they do describe it. Tie person held en- titled in these cases has answered the description in the will. The effect of the evidence has only been to con- fine the language within one of its natural meanings. The Court has merely rejected;^ and the intention which it has ascribed to the testator (sufficiently ex- pressed) remains in the will. " An averment to take away swrphisoffe is good, but not to increase that which is defective in the will of the testator." * Or, perhaps, the more simple explanation is, that the evidence only determines what subject was hnown to the testator by the name or other description he used.* ' I. e. Cases prior to Miller v. Travers, Gord v. Need, and Hiscocks «. Hiscocks. " Consider but qu. Anon. 8 Vin. 188, (G. a.) pi. 1 ; Trimleston v. Lloyd, 1 Bligh, N. S. 449, 451, 476; Hippesley v. Homer, Turn. & Russ. 48, n.; Powell ■». Mouchett, 6 Madd. 316. ' [Per Anderson, C. J., Godb. 131 ; and see] 6 Ves. 397; 8 Rep. 155; 8 Ring. 358. " In Richardson v. Watson, 4 R. & Adol. 800, Parke, J., referring to cases of this description, says, — " Such evidence is admissible to show, not what the testator intended, but wJkat he understood to be signified hy the words he used in the will. PROPOSITION VII. 201 153. The cases, however, in wMch the descriptive language of the will is iimppUcable with certm/nPy to any subject, cannot be explained in the same way ; nor is it' easy to understand how those cases are to be recon- ciled with the Statute of Frauds. How can it be said, that the will is in writing, so far as it respects the per- son or thing intended, when it is admitted that the will must be inoperative unless the mtenUon of the testator in these respects Tje proved aliunde ? And how can a statute, which makes a writing indispensable, be satis- fied, if the thing which is the subject of disposition, or the person who claims the benefit of it, is not described in that writing with certainty sufficient to enable a Court, by the description contained in the writing, to determine their identity? In the case of Beaumont v. Fell, before referred to, the Master of the EoUs, although he admitted the parol evidence, said, — "K this had been a grant, nay, had it been a d&vise of land, it had been void, by reason of the mistake both of the Chris- tian and surname." But where is the distinction be- tween a grant and a devise of land for the purpose under consideration ? 154. It has, however, with reference to this point, been urged,-' that the practice of admitting evidence to prove intention in the excepted cases had obtained at common iaw before the existence of the statute, and that the practice was properly continued after the statute ; for that it was not the intention ot the framers of the statute to alter oi abridge any legitimate or established modes of expounding a written instrument, but merely to substitute a written for a nuncupative win ; that the statute made a writing indispensable in certain cases, in which a writing was previously un- ' This is the passage in the former edition referred to, swpra, pi &. 14 202 PKOPOSITION VII. necessary, but left untouched the means of expounding the writing which it required ; and that Courts of law, therefore, must, notwithstanding the statute, be at lib- erty still to avail themselves of the aid of extrinsic evi- dence, to the full extent to which authority had, before the statute, established its admissibility. 155. This reasoning, however (regard being had to the rules of law independently of the statute), is not conclusive. The statute requires that the will should be in writing, and it cannot be seriously made a ques- tion whether this requisition is strictly complied with, in cases in which it is admitted that the will must be disappointed unless the person or thing intended, that is, in fact, the will itself, as far as the person or thing intended is concerned, be ascertained by means wholly independent of the writing which is called the will. The rule which existed at common law before the statute, existed only as a rule of convenience, and might be relaxed or straitened as much and as often as convenience, the principle upon which it was founded, made it necessary or expedient to do so. But the statute, by positive enactment, has introduced an arbi- trary and absolute rule, independent of all considera- tions of convenience ; and statute law is, necessarily, of a less flexible and accommodating nature ^ than the rules of the common law. • 156. Another observation, in answer to this last- mentioned theory, remains. It is true that the prac- tice of admitting extrinsic evidence to provd intention had obtained at common law before the statute, except in the special case of the description of the person or thiTiff being applicable indifferently to more than one ' Norton v. Simmes, Hdbart, 14 ; Newman v. Newman, 4 M. & Sel. 66 ; Goss «. Lord Nugent, 5 B. & Add. 58. PEOPOSiTioN vn. 203 subject. Do the earlier authorities, wlien critically examined, sanction tlie admissibility of evidence to prove intention wbere the person or thing said to be intended does not answer the description in the will? The earlier cases do not, it is conceived, warrant any such general conclusion, and, with respect to the text writers, their statements all resolve themselves into the words of the maxim, which has been reserved for separate con- sideration,' and which, properly explained," appears to be limited to the Proposition (the Seventh) now under consideration. 157. It might, indeed, be argued that the admission of extrinsic evidence to prove intention, in cases in which the description of the person or thing was wholly inap- plicable or inapplicable with certainty to any subject, and the admission of similar evidence, where the de- scription applied indifferently to more than one subject, differs in degree but not in principle, — ^for that some person or thing must have been intended in the former case ; and that, if aU but one subject be excluded by means of extrinsic evidence, the person or thing in- tended by the testator wiU alone remain, — so that the only difference between the two cases is, that the num- ber of subjects to be rejected, or out of which a selec- tion is to be made, is greater in the one case than the other. In the spirit of this argument, a learned writer has said, " The names of persons appointed to take under wills have been set right by parol evidence, where both the Christian and surname have been mis- taken ; nor does the statute appear to be violated in this instance ; for, in such case, no words are supplied or substituted, but .the mistaken appellation in the instrument is applied to the person really intended by • Snpra, pi 8. " Infra, pi. 209. 204 PBOPOSITION VIL it; and the names of persons having no intrinsic -mean- ing, the will is rectified without any addition to the sense." ^ 158. The whole of this reasoning, however, is falla- cious. K the statute only required that a nuncupative will should not be set ifp in opposition to a written will, the reason might be sufficient ; but, if the just ex- position of the statute be, that the writing which it requires shall of itself express the intention of the tes- tator, it is difficult to understand how the statute can be satisfied by a writing merely, if the description it contains have nothing in common with that of the per- son intended to take under it, or not enough to deter- mine his identity. To define that which is indefinite, is to make a material addition to the will. Once admit that ihe person or thing intended by the testator need not be adequately described in the will, and it is. im- possible to stop short of the conclusion that a mere mark will in every case supply the place of a proper description. The same observations apply, independ- ently of the statute. 159. Other solutions of- the difficulty have been sug- gested, Thus, it has been said, that extrinsic evidence is admissible in the excepted cases, because the am- biguity, being raised by evidence, may fairly be ex- plained by the same means.* If by this were meant only, that where, upon a partial development of cir- cumstances, the intention appeared to be uncertain, a more ample development of circumstances was allowa- ble, the reason would be quite satisfactory; for the ' Eoberts on. Frauds, 16, 17. ' See 1 W. Bla. 60; 7 T. R. 148; 1 Bro. 0. C. 350; Sug. Yen. p. 137, 6th edit. [oh. iii. s. 10, pi. 2, 11th edit.]; 1 Phil.' on Ev. p. 531, 7th edit, [vol. II, p. 387, 10th edit.] ; 2 Roberts on Wills, p. 13. [See also 1 Roper on Legacies, 390, 4th edit.] PROPOSiTiosr Til. 205 whole- process would then fall within the ascertained limits of exposition. But, applying it to the actual state of the authorities, a reasonahle hesitation may be felt in admitting its sufficiency. It overlooks the essen- tial difference between the nature and effect of the evi- dence which raises the ambiguity, and that by which it is removed. The former is confined to a development of facts with reference to which the will was written, and to which the language of the will expressly or tacitly refers. If the words of the will are applicable to a/rvy subject, the Court is inflexible in applying them accordingly. K inapplicable to aivy subject, the Court declares that the will expresses no certain intention. It is not until this declaration is explicitly made, that the question of admitting evidence of intention is ever entertained?^ There is a wide 'difference, then, be- tween the, evidence which is simply explanatory of the proper meaning of the words, and that which, admit- ting that no certain intention is expressed in the will, is resorted to only for the purpose of proving what it was the testator intended to have expressed.* 160. Again, by what principle is it that the precise limits are determined, within which evidence of inten- tion has been admitted ? 161. It has been shown, that evidence will not be admitted to fill up a total blank in a will.* Now, the omission of a name in a will may have arisen from accident or mistake on the part only of the person who prepared the will, just as much as a total misdescription or an insufficient description of the subject intended. The testator himself may have given full instructions in the former case, as weU as in the latter. If the fact ' Proposition n , «wpra,'pl. 24, [and see per Sir Gr. Turner, L. J., in Hor- wood ». GrifBth, 4 De G. M. & G-. 709, sMpm, pi. 45, nofe.] " See 8 Bing. 247. = Supra^ pi 131. 206 PEOPOSiTiojr vii. were so, and if an entirely new description of the per- son or thing intended by a testator may be substituted for one inserted by mistake, or for one which is insuf- ficient and uncertain, why (technical rules apart) should not a description omitted by mistake be supplied by parol evidence also 1 ^ 162, It is said, in a work of great repij.tation,* that evidence is inadmissible to fill up a total blank, be- cause, in that case, it is uncertain, wpmi the face of the will, whether the testator had selected the subject to which his words were intended to apply, or not. K, in fact, the testator had not made the selection, the reason would be unanswerable, for then there would be no wUl to execute. K the testator had made the selection, and had given full instructions to the person who prepared his wiU, and if the omission was really accidental, the reason can scarcely be deemed satisfactory. ,To fill up a blank in a will by inserting a name which the testator had really directed to be placed there, is not, in sub- stance, more than substitutiag a new description, or perfecting one which is useless as it stands.* The legatee is no more in the will in the latter* case than in the former. It would be thought strange advice to be given to professional gentlemen, that if, in preparing a will, they should forget the name of a legatee, they should put in arvy name, rather than leave a blank for the right one. But would not the cases justify such advice ? The mere circmnstance that the mistake in the one case is pat&nt, and in the other latent, vsill scarcely satisfy the inquirer who looks beyond the letter of a technical rule ; and, it is hoped that the professional in- quirer will, upon reflection, be satisfied that the tech- ' See 8 Bing. 250, 254. ' 1 Phil, on Ev. p. 539, 7th ed. ' See iv/ra,pl. l&l. PKOPOSiTiON vn. 207 nical rule referred to does not support tlie distinction in . question/ 163. The same reason, however, admitting its suf- ficiency to explain the case of a Mank, will not explain the imqualified rejection of Mary Holt's evidence in such a case as Goblet v. Beechey.* The testator, in that case, must, upon the face of his wiU, have intended something; he must have had some particular subject in his mind when he made use of the word upon which the question in that case arose ; the only question was, what he meant ? Now, either a certain description of the subject of the testator's intention is, or it is not, of the essence of a bequest. If it is so, how are the cases already referred to to be explained? If it is not so, why should not a proper description of the person or the thing intended be, in any case, supplied by aver- ment of intention, provided only there is enough upon the face, of the will to show the testator meant some particular person or thing, and the only question is, — Who or what he meant ? It may be said, that, in Gob- let V. Beechey, the suistcmce of the thing intended was not described ; and Selwood v. Mildmay may be cited to show that relief against mistake is confined to cases in which the denomination only has been mistaken, But, is this distinction satisfactory ? K, in Selwood v. Mildmay,^ the proceeds of the sale of the testator's £4 per cent. Bank Annuities had been traced into an in- vestment in land instead of Long Annuities, the real mistake would have been just as manifest, and the in- • Infra, pi. 209, 310. " Appendix, No. 1. The rejection of the evidence of Mary Holt mfhe firtit instcmee was unquestionably right ; for, until the facts of the case were fully developed, it was impossible for the Court to determine wjiether the words did or did not sufficiently express the testator's intentiou. ' Swpra, pi. 131. See also Evans v. Tripp, ubi supra, pi. 134. 208 PROPOSITION VII. tention as certain, as in the case wMch actually oc- curred ; yet, it seems, tlie Court could not in tliat case have prevented an intestacy.^ 164, It is in admitting evidence of intention in any case that the strong act of the Courts is done. Where it is once established, that mistakes in a will may be rectified by evidence of intention, the principle upon which (independently of any particular circumstances of a case) the denomination, but not the substance, of the thing intended,, is permitted to be supplied by ex- trinsic proof, requires explanation. 165. Agaiu, suppose a testator to declare in his wiU that he left to A. the estate he had promised (in con- versation) to leave to him. If it may be assumed that such a will as this (the conscience of the heir-at-law not being affected*) would not satisfy the Statute of Frauds; and that A. could not, either at law or in equity, suc- cessfully claim the estate against the heir-at-law of the testator, upon the evidence of a witness who heard the promise,* an additional difficulty wiU. suggest itself; — • 3 Ves. 310; and see infra, pi. 189. ^ Oldham ®. Litchford, 3 Freem. 384 ; Devenish v. Baines, Prec. in Cha. 3 ; Muckelston v. Brown, 6 Ves. 53 ; Strickland ®. Aldiidge, 9 Ves. 516. ' See MoUnteux ». Molineux, Cro. Jac. 144. But see Beaumont v. Tell, swpra, pi. 143. Qu. What description by reference wiU. satisfy the Statute of Frauds ? A description by reference to a writing wUl, it is conceived, be sufficient (Molineux v. Molineux, vbi supra), although pa/rol evidence be necessary to identify the writing referred to. (Saunderson v. Jackson, 3 Bos. & Pul. 338 ; Hodges v. Horsfall, 1 Russ. & M. 116). But, will a de- scription by reference to words spoken be sufficient ? (MoUneux i>. Mol- ineux, libi supra.) [See upon this point, 1 Jarm. Wills. 3nd ed. pp. 74, et seq., and the cases there cited ; and the remarks in 4 Jur. N.S. part. 3, p. 100. (February 37th, 1858.)] Qu. If the evidence was strictly admissible under the particular cir- cumstances of Hodges «. Horsfall ? The first question would be, whether the word plan, in that case, meant a document or a verbal plan ? Admit- ting that it meant a document, a second question would be, whether evi- dence could be given as to which of the several plans laid before them the PROPOSITION VII. 209 for, if in that case tlie testator had affected only to de- scribe the estate and person intended, although he had done so in terms wholly inapplicable to either, it might be successfally contended, upon the authority of the cases stated above, that evidence would be admissible to siipport the devise, though the witness should only state what he heard the testator say, or what the testa- tor told him. 166. It has, indeed, been suggested to the writer by an intelligent and learned friend, that the case of Beau- mont V. Fell,^ -does not authorize the conclusion which has just been stated ; for that, in Beaumont v. Fell, there was some resemblance between Gatty (by which name the testator used to call the legatee) and KaPy (which the scrivener who drew the will might have parties had agreed to select f This was a term ia the entire agreement which the writing in no way ascertained, and the process does not resem- ble that of applying similar evidence to show which of two persons or estates was Tcnovm to a testator by a given name. (See Smart v. Prujcan, 6 Vefe, 565, and extract from that case, infra, pi. 192, note; Brod'ie v. St. Paul, 1 Ves. yxa. 336 ; 9 Ves. 250 ; Boydell v. Drummond, 11 East, 141 ; Barlow ®. Rhodes, 1 Cromp. & Meeson, 439. See also Dillon v. Harris, 3 BUgh, N. S. 321.) In the case of Shortrede ®. Cheek, 1 Adol. & Ellis, 57, a question arose upon the sufficiency of a guarantee, which was in the following words : " You will be so good 36 to withdraw (he 'promissory note ; and I will see you at Christmas, when you shall receive from me the amount of it, together with the memorandum of my son's, making in the whole £45." It was suggested that the note was not sufficiently described ; but the Court decided otherwise, on the ground that there was rw other note to which the agreement could apply. Little- dale, J., said, "It is true, the letter leaves it uncertain what the note was, and whether it was a note of the father or of the son; and if it had ap- peared that there were two notes, one given by each, I do not think parol evidence could have been received to show what was meant. So, if there had been two notes in question for the same sum, but of different dates." Park, J., said, " If it had appeared in proof that there were tw'o. notes to which the promise might have applied, there might have been a difficulty as to explaining this by parol testimony." The above observations of the judges are in accordance with the author's criticisms on the case of Hodges ®. Horsfall, with reference to the/iZare mentioned in that case. ' 8'wpra, pi. 143. 210 PEOPOSITION VII. mistaken for GatPy, — see tlie case) ; and, consequently, tliat that case cannot te relied on as an authority for the broad proposition, that a description wTwlly dis- simila/r from that of the object intended can be cor- rected by evidence of intention. The point is noticed as deserving attention ; but the writer can see no dif- ference, in principle, between a description which is wholly inapplicable, and one which is so insufficient , as to be useless, until it is proved as an independent fact, for whom or for what the description was in- tended. The suggestion, moreover, does not meet the case of Selwood -y. Mildmay.^ nor the MS. case of several estates in different counties, svpra, pi. 146 ; nor that of Miller v. Travers, as decided by the Vice- Chancellor, supra, pi. 147. The common maxim, which distinguishes latent and patent ambiguities,^ has, moreover, always been considered by test writers as sanctioning the case of Beaumont v. Fell, so under- stood; and the Vice-Chancellor must« have so under- stood the law when he decided the case 'of Miller ii. Travers. , 167. Again, if where the description of the subject intended is applicable indifferently to more subjects than one, evidence of intention is admissible to de- termine its application, why should not such evidence (according to the opinion expressed by Lord Cowper,*) be admissible in all cases to determine the application of words which are capable of various interpretations ? 168. The Decisions, then, in the excepted cases, must, it is conceived, be considered to a great extent as arbitrary, and not to be explained upon any de- terminate principle. They appear to be decisions in ^ Btipra, pi. 1Z\. ' Infra, pll9G. ' Svpra, pi lOQ. PKOPOSiTioN vn. 211 whicli a general principle has been sacrificed to meet the hardship of particular cases. 169. The precise conclusions to be drawn from them are by no means obvious. 170. It is observable that they, are confined to cases in which the object of the testator's bounty, or the sub- ject of disposition, was the only point to be determined by the evidence. 171. The authorities do not, however, embrace every case in which the intention of the testator is ambiguous as to the object or the subject iatended.^ 172. "With respect to the cases in which the am- biguity related to the object of the testator's bounty, it is observable, that they were cases in which the will expressed a determiaate intention in favor of some par- ticular person ; but the particular person intended was tmcertain; either because the name or description of such person was applicable indifferently to more persons than one; or, because it was inapplicable with cer- tainty ^ to any person. ,173. The same reason which prevailed for admitting evidence of ftitention to correct an ambiguity as to the person, woidd, it is conceived, apply to an ambiguity as to the subject of disposition, where the ambiguity arose from a similar cause, provided the substcmce or natmre of the subject intended were defined by the language of the wiU.* 174. Such was the state of the authorities respect- ing the admissibility of extrinsic evidence tp prove in- teaUon, and such the difficulties which appeared to oppose themselves to its admission, prior to the decision of the appeal in Miller v. Travers, mfra. ' Supra, Proposition VI. " See pi. 133, 146. ' See MS. case, pi. 146 ; 3 Ves. jun. 310 ; Miller v. Travers, pi. 147. 212 PROPOSITIOTSr VII. 175. The description of cases in wliicli such evi- dence tad been held admissible prior to this decision^ were two: 1, Those in which the description in the will applied indifferently to more than one subject; and, 2, those in which it was inapplicable with certainty to any subject. 176. Since the decision in MiUer v. Travers, the cases of Gord v. Needs, and Hiscocks v. Hiscocks have been decided. 177. The question raised in Miller v. Travers was, whether evidence to prove mt&nUon, as distinguished from exclamatory evidence^ was admissible to show that estates in the county of Glare were intended by the de- • scription " Estates in the county of Limerick ? " in other words, — whether a description wholly inapplicable in itseK to the subject said to be intended, could be ap- plied to that subject by force only of evidence of the testator's intention ? And it was held that the evidence was inadmissible. 178. The question in Gord v. Needs,* was whether evidence was admissible, to show which of two claim- ants, each cmswermg the description i/n th^will, was in- tended by the testator ? And it was held that the evi- dence was admissible. 179. In Hiscocks v. Hiscocks,* the question raised. was, whether similar evidence was admissible for the purpose of enabling the Court to apply to each of two claimants, respectively, one of two descriptions in a wiE, neither of which was applicable with legal cer- tainty to either claimant ? and it was held that the evi- dence was inadmissible. 180. In the state of the authorities which has been shown, the case of Miller v. Travers came before the * Bupra, pi. 10. " Infra, pi. 182. " Infra, pi. 183. PEOPOSiTiou ,vn. 213 Lord Chancellor, on appeal from the decision of the Vice-Chancellor, already stated/ His Lordship called in the assistance of Chief Justice Tindal, and the Lord Chief Baron, (Lord Lyndhurst), before whom the case was argued, and, on the 28th of January, 1833, Chief Justice Tindal delivered the unanimous opinion of the three Judges, deciding that the evidence to prove that the testator intended to devise his estates in the county of Clare was inadmissible, and that the order of the Vice-Chancellor, directing the issue, should be reversed. 181. The judgment,^ after observing that the main question between the parties was, whether parol evi- dence was admissible to show the testator's intention that his real estates in the county of Clare should pass by his will, and stating the facts of the case,* proceeded as follows : — " It may be admitted, that in all cases in which a difficulty arises in applying the words of a will to the thing which is the subject-matter of the devise, or to the person of the devisee, the difficulty or am- biguity which is introduced by the admission of extrinsic evidence may be rebutted and removed by the produc- tion of further evidence, wpon the sa/rm subject, calculated to explain what was the estate, or subject-matter, really intended to be devised, or who was the person really intended to take under the will ; and this appears to us to be the extent of the maxim, '^Amhigmtas verhorwm latens, verificatione swppletv/r.^ " But the cases to which this construction applies will be found to range themselves into two separate classes, distinguishable from- each other, and to neither of which can the present case be referred. The first ' Sitpra, pi. 147. ^ 8 Bing. 244 [See the observations on this case in Lindgren v. Lind- gren, 9 Beav. 364 ; infra, pi'. 194, note.] ' /SMpm, pi. 147. 214 . PEOPOSITION VII. class is, where tlie description of the thing devised, or of the devisee, is clear upon the face of the will ; but upon the death of the testator it is found, that there are more than one estate or suhject-matter of devise, or more than one person whose description follows out and fills the words used in the will. As where the testator devises his manor of Dale, and at his death it is found that he has two manors of that name. South Dale and North Dale ; or where a man- devises to his son John, and he has two sons of that name. In each of these ^ cases respectively, parol evidence is admis- sible to show which manor was intented to pass, and which son was intended to take. (Bac. Max. 23 ; Hob. Eep. 32 ; Edward Altham's case, 8 Rep. 155.y The other class of cases is that in which the descrip- tion contained in the will of the thing intended to be devised, or of the person who is intended to take, is true in part, but not true iii every particular. As where an estate is devised called A., and is described in the occupation of B., and it is found that though there is an estate called A., yet the whole is not in B.'s occupation ; or where an estate is devised to a person whose surname or Christain name is mistaken ; or whose description is imperfect or inaccurate ; in which latter class of cases parol evidence is admissible to show what estate is intended to pass, a,nd who was the devisee in- tended to take, provided there is sufficient indication of intention appearing on the face of the will to justify the application of the evidence. " But the case now before the Court does not appear to fall within either of these distinctions. There are no words in the will which contain an imperfect, or, indeed, any description whatever of the estates in Clare. ' Infra, pi iSi. PROPOSITION vn. 215 The present case is rather one in which the plaintiff dops not endeavor to apply the description contained in ^ the will to the estates in Clare, hnt, in order to make out such intention, is compelled to introduce new words and a new description into the body of the will itself. "The testator devises all his estates in the county of Limerick and the city of Limerick. There is noth- ing ambiguous in this devise on the face of the will. It is found, upon inquiry, that he had property in the city of Limerick, which answers to the description ia the will, but no property in the county. This extrin- sic evidence produces no ambiguity, no difficulty in the application of the words of his will to the state of the property as it really exists.^ The natural and necessary construction of the will is, that it passes the estate which he has in the city of Limerick, but passes no estate in the county of Limerick, where the testator had no estate to answer that description. " The plaiatiff, however, contends, that he has a right to prove, that the testator intended to pass not only the estate in the city of Limerick, but an estate ia a county not named in the will, namely, the county of Clare; and that the will is to be read and construed as if the word ' Clare ' stood in the place of, or in addition to, that of Limerick. " But this, it is manifest, is not merely calling in the aid of extrinsic evidence to apply the intention of the testator, as it is to he collected from the will itself, to the existmg state of his prop&rt/y ; it is calUng in ex- trinsic evidence to int/roduce into the will an intention not a/pf a/rent v/pon the face of the will. It is not simply removing a difficulty, arising from a defective or mis- ^ Infra, pi. 1^%. 216 PROPOSITION vn. taken description ; it is making tlie will speak upon a subject on wliicli it is altogetlier silent, and is the same ia effect as the filUng wp a Ucmh, wliicli the tes- tator might have left in his will. It amounts, in short, by the admission of parol^ evidence, to the making of a new devise for the testator, which he is supposed to have omitted. "Now, the first objection to the introduction of such evidence is, that it is inconsistent with the rule which reason and sense lay down, and which has been univer- sally established for the construction of vdlls, namely, that the testator's intention is to be collected from the words used in the will, and that words which he has not used cannot be added. Denn v. Page.^ " But it is an objection no less strong, that the only mode of proving the alleged intention of the testator is, by setting up the draft of the will against the exe- cuted will itseK As, however, the copy of the will which omitted the name of the county of Clare was for some time in the custody of the testator, and, there- fore, open for his inspection; which copy was after- wards executed by him with all the formalties required by the Statute of Frauds ; the presumption is, that he must have seen and approved of the alteration, rather than that he overlooked it by mistake. It is unneces- sary to advert to the danger of allowing the draft of the will to be set up as of greater authority to evince the intention of the testator than the will itself, after the will has been solemnly executed, and after the death of the testator. K such evidence is admissible to introduce a new subject-matter of devise, why not also to introduce the name of a devisee, altogether omitted in the will ? If it is admissible to introduce • 3 Term R. 87. PKOPOSITION VII. 217 new matter of devise, or a new devisee, wLy not to ■striJoe out sucli as are contained in the executed will? Tlie effect of siicL. evidence in either case would be, that the will, thoiagh made in form by the testator in his lifetime, would really be made by the attorney after his death ; that all the guards intended to be iatroduced by the Statute of Frauds would be entirely destroyed, and the statute itself virtually repealed. "And upon examination of the decided cases on which the plaintiff has relied in argument, no one will be found to go the length of supporting the proposition which he contends for'; on the contrary, they will all be found consistent with the distinction above adverted to, — that an uncertainty, which arises from applying the description contained in the will either to the thing de- vised, or to the person of the devisee, may be helped by parol evidence ; but that a new subject-matter of de- vise, or a new devisee, where the will is entirely silent upon either, cannot be imported by parol evidence into the will itself. " Thus, in the case of Lowe v. Lord Huntingtower,^ in which it was held that evidence of collateral circum- stances was admissible, as of the ages of the several devisees named in the will, of the fact of their being married or unmarried, and the like, for the purpose of ascertaining the true construction, of the wUl ; such evi- dence, it is to be observed, is not admitted to introduce new words into the will itself, but merely to ^ive a con- struction to the words used in the will consistent with the real state of his property and family ; the evidence is produced to prove facts, which, according to the lan- guage of Lord Coke, in 8 Eep. 155, 'stand well with the words of the will.' ' 4 Russ. Eep. 581, .n. 15 218 PEOPOSITION VII. " The case of Standen v. Standen/ decides no more, than that a devise, of all the residue of the testator's real estate, where he has no real estate at all, but has a power of appointment over real estate, shall pass such estate over which he has the power, though the power is not referred to. But this proceeds upon the prin- ciple that the will would be altogether inoperative, unless it is taken that, by the words used in the will, the testator meant to refer to the power of appoint- ment. " The case of Mosley v. Massey,* does not appear to bear upon the question now under consideration. After the parol evidence had established that the local description of the two estates mentioned in the will had been transposed by mistake, the county of Kadnor having been applied to the estate in Monmouth and vice versa ; the Court held that it was sufficiently to be collected, from the words of the will itself, which estate the testator meant to give to the one devisee, and which to the other, independent of their local descrip- tion ; all, therefore, that was done, was to reject the local description, as unnecessary, and not to import any new description into the will. " In the case of Selwood v. Mildmay,* the testator devised to his wife part of his stock in the £4: per cent. Annuities of the Bank of England ; and it was shown by parol evidence, that, at the time he made his will, he had no stock in the J64 per cent. Annuities, but that he had some which he had sold out, and had" invested the produce ia Long Annuities. And in this case it was held, that the bequest was in substance a bequest of stock, usiag the words as a denomination, not as the, ' 3 Ves. jun. 589. " 8 East, 149. ' 3 Ves. jun. 806. [Supra, page 191.] PROPOSITION VII. 219 identical corpus of the stock; and as none could be found to answer the description but the Long Annuities, it was held that such stock should pass rather than the win be altogether inoperative. " This case is 'certainly a very strong one ; but the decision appears to us to range itself under the head, that ^ falsa demonsl/raUo non nocet^ where enough appears upon the will itself to show the intention after the false description is rejected.^ "The case of Groodtitle v. Southern^ falls more closely within the principle last referred to. A devise ' of all that my farm called Troguis Fa/rm, now in the occupation of A. C Upon looking out for the farm devised, it is found that part of the lands which consti- tuted Trogue's Farm are in the occupation of another person. It was held, that the thing devised was suffi- ciently ascertained by the devise of ' Trogu^s Fa^m, and that the inaccurate part of the devise might be re- jected as surplusage. " The case of Day v. Trigg ^ ranges itself precisely in the same class. A devise of ' all the testator's free- hold Jiouses in Aldersgate street,' when, in fact, he had no freehold, but had leasehold houses there. The devise was held in substance and effect to be a devise of his houses there ; and that, as there were no free- hold houses there to satisfy the description, the word ' freehold ' should rather be rejected than the will be totally void. " But neither of these cases afford any authority in favor of the plaintiff; they decide only that where there is a sufficieni description in the wUl to ascer- tain the thing devised, a part of the description which ' See Hiscocks «. Hiscocks, infra, pi. 183. ^ 1 M. & S. 399. = 1 P. Wms. 286. 220 ■ PROPOSITION VII. is inaccurate may be rejected, not tliat anything may be added to the will; thus following the rule laid down by Anderson, C. J., in Grodb. Eep. 131. — 'An averment to take away any surplusage is good, but not to increase that which is defective in the will of the testator.^ " On the contrary, the cases against the plaintiff's construction appear to bear more closely on the point. In the first place, it is well established, that where a complete blank is left for the name of a legatee or de- visee, no parol evidence, however strong, will be allowed to fill it up as intended by the testator. Hunt v. Hort,^ and in many other cases. "Now the principle must be precisely the same, whether it is the person of the devisee, or the estate or thing devised, which is left altogether in blank. And it requires' a very nice discrimination tO distin- guish between the case of a will, where the description of the estate is left altogether in blank, and the present case, where there is a total omission of the estates in Clare. " In the case of Doe d. Oxenden v. Chichester,^ it was held by the House of Lords, in affirmance of the judgment beloWj that, in the case of a devise of * my estate of Ashton,' no parol evidence was admissible to show that the testator intended to piass not only his lands in Ashton, but in the adjoining parishes, which he had been accustomed to call by the general name of his Ashton estate. The Chief Justice of the Common Pleas, in giving the' judgment of all the Judges, says, ' If a testator should devise his lands of 'or in Devonshire or ^ Somersetshire, it would be impossible to say that you ' Infra, 'pl. 190. » 3 Bro. C. C. 311. " 4 Dow. P. C. 65. [Supra, page 73.] PEOPOSITIOK VII. 221 ouglit to receive evidence that Ms intention was to de- vise lands out of those counties,' Lord Eldon, then Lord Chancellor, in page 90 of the Eeport, had stated in substance the same opinion. The case so put by Lord Eldon and the Chief Justice is the very case now under discussion, " But the case of Newburgh v. Newburgh, decided in the House of Lords on the 16th of June, 1825,^ ap- pears to be in point with the present. In that case, the .appellant contended that the omission of the word ' Gloucester ' in the will of the late Lord Newburgh, proceeded upon a mere mistake, and was contrary to the intention of the testator at the time of making his will, and insisted that she ought to be allowed to prove, as well from the context of the will itself, as from other extrinsic evidence, that the testator intended to devise to her an estate for life as well in the estate in Glouces- ter, which was not inserted in the wUl, as in the county of Sussex, which was mentioned therein, " The question, ' whether parol evidence was admis- sible to prove such mistake, for the purpose of correct- ing the wiU and entitling the appellant to the Glouces- ter estate, as if the word ' Gloucester ' had been inserted in the will,' was submitted to the Judges ; and Lord Chief Justice Abbott declared it to be the unanimous opinion of those who had heard the argument, that it could not, " As well, therefore, upon the authority of the cases, and more particularly of that which is last referred to, as upon reason and principle, we think the evidence offered by the plaintiff would be inadmissible upon the trial of the issue, and that it would, therefore, be ' [1 M. & Sc. 353, on appeal from Sir John Leach, V. C, 5 Madd. 364.] 222 PKOPOSITION VII. useless to grant tlie issue in the terms directed by the Vice- Cliancellor." 182. In Doe d. Gord v. Needs/ tlie will contained a devise to Greorge Gord, the son of John Gord; another to George Gord, the son of George Gord; and a third, after the expiration of certain life estates, to George Gord, the 8on of Gord. The Court held, that the evidence of ihe testator's declarations was admissible to show that he intended that the house devised to " George, the son of Gord," should go to George, the son of George Gord. The rule of law is so fully explained in this case, that the author trusts he shall be excused for inserting the judgment at length, nothwithstanding the reasons which may sug- gest themselves to the reader, why we should have omitted it. "The only point, therefore," said Parke, B.,* " remaining to be considered is, whether evidence was properly admitted of the devisor's declarations to show what person he meant to designate by the de- scription of 'George Gord, the son of Gord.' And we are of opinion that such evidence was properly admitted. K, upon the face of the devise, it had been uncertain whether the devisor had selected a particular object of his bounty, no evidence would have been ad- missible to prove that he intended a gift to a certain individual; such would have been a case of ambigui- tas patens, within the meaning of Lord Bacon's rule,^ which ambiguity could not be holpen by averment; for to • allow such evidence would be, with respect to that subject, to cause a parol will to operate as a writ- ten one; or, adopting the language of Lord Bacon, 'to make that pass without writing, which the law appointeth shall not pass but -by writing.' But here, ' 3 M. & W. 139. ' 3 M. & W. 139. = Maxims, 35. PEOPOSITION VII. 223 on the face of the devise, no such doubt arises. There ■is no hlanh before the name of Gord the father, which might have occasioned a doubt whether the devisor had finally fixed on any certam person in his mind. The devisor has clearly selected a particular individual as the devisee. Let us then . consider, what would have been the case, if there had been no mention in the will of any other George Gord, the son of a Gord ; on that supposition there is no doubt, upon the au- thorities, but that evidence of the testator's intention, as proved by his declarations, would have been ad- missible. Upon the proof of extrinsic facts, which is always allowed in order to enable the Court to place itself in the situation of the devisor, and to construe his will, it would have appeared that there were at the date of the will two persons, to each of whom the description would be equally applicable. This clearly resembles the case put by Lord Bacon of a latent am- biguity, as where one grants his manor of S. to J. F, and his heirs, and the tfnith is that he has the manors both of North S. and South S. ; in. which case Lord Bacon says, ' It shall be holpen by averment, whether of them was that which the party intended to pass.' The case is also exactly like that mentioned by Lord Coke in Altham's case ; ^ ' K A. levies a fine to William his son, and A. has two sons named William, the averment that it was his intent to levy the fine to the younger is good, and stands well with the words of the fine^ Another case is put in Crounden v. Clarke ^ which is in point: 'If one devise to his son John, where he has two sons of that name ; ' and the same rule was acted upon in the recent case of Doe v. Mor- gan.* The characteristic of all these cases is, that the ' 8 Rep. 155 a. " Hob. 33. = 1 C. & M. 235. 224 PEOPOSiTiosr VII. words of the will do describe, the object or subject intended ; and the evidence of the declarations of the testator has not the effect of varying the instrument in any way whatever; it only enables the Court to reject one of the subjects or objects, to which the description in the will applies ; and to determine which of the twa the devisor understood to be signified by the descrip- tion which he used in the will. This subject has been most ably discussed by Mr. Wigram, in his excellent treatise on the rules of law respecting the admission of extrinsic evidence in the interpretation of wills. There would, then, have been no doubt whatever of the ad- missibility of evidence of the devisor's intention, ii the devise to ' George the son of Gord,' had stood alone, and no mention had been made in the will of George the son of John Gord, and George the son of George- Gord. But does the circumstance that there are two * persons named in the will, each answering the descrip- tion of 'George the son of Gord,' prevent the appli- cation of this rule? We are of opinion that it does not. In truth the mention of persons by those de- scriptions in other parts of the will, has no more effect, for this purpose, than proof by extrinsic evidence of the existence of such persons, and that they were known to the devisor, would have had : it shows that there were two persons, to either of whom the de- scription would be applicable, and that such two per- sons were both known: and the present case really amounts to no more than this, that the person to whom the imperfect description appears on the parol evidence to apply, is described in other parts of the same will, by a more fall and perfect description, which excludes, any other object than himself. Still he is pointed out in the devise itself by a description, which, so far as it goes, is perfectly correct. In the case of Doe v. PEOPOSITION VII. 225 Morgan, above referred to, precisely tlie same circum- stance occurred." ^ 183. In Hiscocks v. Hiscocks,*^ a testator devised lands to his son John for life ; and, from his decease, to the testator's grandson, John H., eldest son of the said John H., for life, with remainders over. At the time of making his will, the testator's son John H. had heen twice married. By his first wife he had one son " Simon, and by his second wife an eldest son John, and other younger children, sons and daughters. Simon and John, the grandsons of the testator, both claimed the lands. The question was, whether evidence of the testator's mtention, consisting of instructions given for his will, and declarations made by him after his wUl^ were admissible. The judgment of the Court was as follows: — 'This was an action of ejectment brought on the demise of Simon Hiscocks against John His- cocks. The question turned on the words of a devise in the will of Simon Hiscocks, the gra9.dfather of th^ lessor of the plaintiff and of the defendant. By his wiE, Simon Hiscocks, after devising estates to his son Simon for life, and, from and after his death, to his grandson Henry Hiscocks in tail male, and making, as to certain other estates, an exactly similar provision in favor of his son John for life; then, after his death, the testator devises those estates to ' my grandson John ' [See Doe d. Allen ». Allen, 13 Ad. & Ell. 451.] " 5 M. & W. 363 (1833). The only way (if any) by -which, in this case, either claimant could have approached the end he aimed at, would, per- haps, have been by contending that the words in the will, which were ap- plicable to his opponent, were not the testator^s words (see the cases, supra, pi. 153, note). This point was not open in the argument in the Exchequer, as the whole instrument appears to have been proved or admitted to con- tain nothing but .the testator's words. The effect, however, of striking out words (as not being the words of the testator) in a case like Hiscocks V. Hiscocks, would be the opposite of that in the cases above referred to in this note. It would create a devise and not an intestacy. 226 PROPOSITION vn. Hiscocks, eldest son of the said Jolin Hiscocks.' It is on this devise that the question wholly turns. In fact, John Hiscocks the father had been twice married ; by his first wife he had Simon, the lessor of the plaintiff, his eldest son : the eldest son of the second marriage was John Hiscocks, the defendant. The devise, there- fore, does not, both by name and description, apply to either the lessor of the plaintiff, who is the eldest son, but whose ' name is Simon, nor to the defendant, who, though his name is John, is hot the eldest son. The cause was tried before Mr. Justice Bosanquet, at the Spring Assizes for the county of Devon, 1838, and that learned Judge admitted evidence of the instructions of the testator for the will, and of his declarations after the will was made, in order to explain the ambiguity in the devise, arising from this state of facts; and the ver- dict having, been found for the lessor of the plaintiff, a rule has been obtained for a nonsuit or new trial, on the ground that such evidence of intention was not receiva- able in this case. And after folly considering the ques- tion, which was very well argued on both sides, we think that there ought to be a new trial. - It must be admit- ted, that it is not possible altogether to reconcile the different cases that have been decided on this subject ; which makes it the more expedient to investigate the principles upon which any evidence to explain the will of a testator ought to be received. The object in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read his will as he has written it, and collect his intention from his words. Biit as his words refer to "facts and circum- stances respecting his property and his family, and others whom he names or describes in his will, it is evi- dent that the meaning and application of his words <5annot be ascertained, without evidence of all those facts PEOPOSITION VII. 227 and circumstances. To understand tlie meaning of any writer, we must first be apprised of tlie persons and cir- cumstances that are the subjects or Ms allusions or statements ; and if these are not fully disclosed in his work, we must look for illustration to the history of the times in which he wrote, and to the works of cotempo- raneous authors. All the facts and circumstances, there- fore, respecting persons or property, to which the wUl relates, are undoubtedly legitimate and often necessary evidence, to enable us to understand the meaning and application of his words. Agaia, — ^the testator may have habitually called certain persons or things by peculiar names, by which they were not commonly known. K these names should occur in his will, they could only be explaiued and construed by the aid of evidence to show the sense in which he used them, in like manner as if his will were written in cipher, or in a foreign language. The habits of the testator in these particulars must be receivable as evidence to ex- plain the meaning of his will. But there is another mode of obtaining the intention of the testator, which is by evidence of his declarations, of the instructions given for his wOl, and other circumstances of the like nature, which are not adduced for explaining the words • or meaning of the wUl, but . either to supply some de- ficiency, or remove some obscurity, or to give some effect to expressions that are unmeaning or ambiguous. Now, there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the tes- tator's words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intel- ligible, but, from some of the circumstances admitted in proof, an ambiguity arises, as to which a£ the two or more things, or which of 'the two or more persons (each 228 PROPOSITION VII. answering the words in the wlQ), the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors of North S. and South S., it being clear he means to devise one only, whereas both are equally denoted by the words he has used, in that case there is what Lord Bacon calls ' an equivocation,' *. e., the words equally apply to either manor, and evi- dence of previous intention may be received to solve this latent ambiguity ; for the intention shows what he meant to do ; and when you know that, you immedi- ately perceive that he has done it by the general words he has used, which, in" their ordinary sense, may properly bear that construction. It appears to us, that, in all other cases, parol evidence of what was the testator's intention ought to be excluded, upon this plain ground, that his will ought to be made in writing ; and if his intention cannot be made to appear by the writing, ex- plained by circumstances, there is no will. It must be owned, however, that there are decided cases which aTe not to be reconciled with this distinction in a manner altogether satisfactory. Some of them, indeed, exhibit but an apparent inconsistency. Thus, for example, in the cases of Doe v. Huthwaite^ and Bradshaw •y. Brad- shaw,^ the only thing decided was, that, in a case like the, present, some parol evidence was admissible. There, however, it was not decided that evidence of the testa- tor's intention ought to be received. The decisions, when duly considered, amount to no more than this, that where the words of the devise, in their primary sense, when applied to the circumstances of the family and the property, make the devise insensible, collateral facts may be resorted to, in order to show that in some secondary sense of the words — and one in which the ' Sufra, pi. 133. "^ Infra, pi. 188, note. PEOPOSITION VII. 229 testator meant to use them- — the devise may have a fall effect. Thus, again, in Cheyney's case, and in Crounden V. Clarke, 'the averment is taken' in order to show which of two persons, both equally described within the words of the will, was intended by the testator to take the estate ; and the late cases of Doe d. Morgan v. Mor- gan,^ and Doe d. Gord v. Needs,** both in this court, are to the same effect. So, in the case of Jones v. Newman, according to the view the Court took of the facts, the case may be referred to the same principles as the for- mer. The Court seem to have thought the. proof equiv- alent only to proof of theii* being two J. C.'s, strangers to each other, and then the decision was right, it being a mere case of what Lord Bacon calls equivocation. The cases of Price v. Page,^ Still v. Hoste,* and Careless V. Careless,® do not materially vary in principle from those last cited. They differ, indeed, in this, that the equivocal description is not entirely accurate ; but they ' agree in its being (although inaccurate) equally appli- cable to each claimant ; and they all concur in this, that the inaccurate part of the description is either, as in Price V. Page, a mere blank, or, as in the other two cases, applicable to no person at all. These, therefore, may fairly be classed also as cases of equivocation ; and, in that case, evidence of the intention of the testator seems to be receivable. But there are other cases not so easily explained, and which seems at variance with the true principles of evidence. In Selwood v. Mild- may,* evidence of instructions for the will was received. That case was doubted in Miller v. Travers ; "^ but per- ' [1 Cr. & M. 335.] " {aupra, p.-323.] ' [/Sapra, page 196.] ^ 6 Mad. 193; swpm, ^L 113. ■ " [1 Mer. 384.] » 3 Ves. jun. 306 ; mpra, pi. 131. ' [See observations on this judgment in Lindgren v. Lindgren, 9 Beav. 365 ; infra, pi. 194, note.] , 230 PROPOSITION vn. haps, having "been put by the Master of the KoUs as ^ one analogous to that of the devise of all a testator's freehold houses in a given place, vrhere the testator had only leasehold houses, it may, as suggested by Lord Chief Justice Tindal in Miller v. Travers, be considered aa being only a wrong application to the facts of a cor- rect principle of lawT Again, in Hampshire v. Pierce, Sir John Strange' admitted declarations of the intentions of the testatrix to be given in evidence, to show that by the words, ' the four children of my niece Bamfield,' she meant the four children by the second marriage. It may well be doubted whether this was right, but the decision on the whole case was imdoubtedly correct ; for the circumstances of the family, and their ages, which no doubt were admissible, were quite sufficient tp have sustained the judgment without the questionable evi- dence. And it may be further observed, that the prin- ciple with which Sir J. Strange is said to have com- menced his judgment, is stated in terms much too large, and is so far inconsistent with later authorities. Beau- mont V. Fell,^ though somewhat doubtful, can be recon- ciled with true principles, upon this ground, that there was no such person as Catharine Eamley, and that the testator was accustomed to address Gertrude Yardley by the name of Gatty. This, and other circumstances of the like nature, which were clearly admissible, may perhaps be considered to warrant that decision; but there the evidence o± the testator's declarations as to his intention of providing for Gertrude Yardley was also received ; and the same evidence was received at Hisi Privs in Thomas v. Thomas,^ and approved on a motion for a new trial, by the dicta of Lord Kenyon and Mr. Justice Lawrence.- But these cases seem to us at ' ^tipra^pl. 143. ' Supra, pi. 140. PROPOSITION VII. 231 variance witli tlie decision in Miller v. Travers, wHch * . ... . . is a decision entitled to great weigtt. If evidence of intention could be allowed for the purpose of showing that by Catharine Earnley and Mary Thomas, the re- spective testators meant Gertrude Yardley and Elinor Evans, it might surely equally be adduced to prove that, by the county of Limerick, a testator meant the county of Clare. Yet this was rejected, and we think rightly. We are prepared on this point (the point in judgment in the case of Miller v. Travers) to adhere to the authority of that 248 PROPOSITION VII. blank, or a description, prima facie, not applicable to any per- son or thing,! j^^^ jf there is in the will a sufficient legal de- scription of two or more persons or things, parol evidence of intent is admissible. If the description is partly applicable to each of two or more persons or things, without being strictly equivocal or equally descriptive of them ; if, in other words, part of the description applies to one, and part, to the other, and the case can still not be disposed of under a rule of con- struction, the leading case of Hiscocks v. Hiscocks,^ decides that parol evidence of the testator's circumstances, bat not of his intention, is admissible in England.^ But, if the descrip- tion is as applicable to one claimant as to another, the ambiguity seerns then necessarily to fall under Proposition Seven. For either the description equally suits two or more persons or things, or it suits one of them more than the other. In the lat- ter contingency, the case is one for construction after the adduc- tion of parol evidence of the testator's circumstances.* But, if the description, while inaccurate as to both subjects or ob- jects, is equally applicable to either, though for different rea- sons, the case seems to faU essentially under Proposition Seven, and to admit of evidence of the testator's intent. , [In Thomas v. Moore,^ the Judges seemed to consider that parol evidence of intent would, in such cases, be admissible. In almost all of the United States, the evidence is received.* [The case of ex-parte Hornby seems to be founded on sound principles. For, where the description in the will, though inac- curate, is not suffered to be void for uncertainty, but is allowed to be aided by parol evidence, there is no ground for limiting tlie parol evidence to the testator's circumstances, and not ex- tending it to his intention, if the description, though inaccurate, equally suits both subjects or objects. It is rarely, indeed, that the description will not suit^one more than the other or others. But, if it is equally applicable to all, parol evidence of intenl would seem to be properly admitted. Such evidence, however, ' Price «. Page, 4 Ves. 680 ; Sill v. Hoste, 6 Madd. 193. =■ 5 M. &. W. 363. ° Cass ®. Ross, 3 Sneed, 311. * See Tucker i). Seamen's Aid Soc. 7 Met. 188; id. 209. " 6 T. K. 671. ° See ex-parte Hornby v. Ward, 3 Bradf. Sur. 420. ' PROPOSITION VII. 249 would at present be admitted in the most of the United States, no matter whether all claimants were equally well or ill speci- fied or not in the will. In some of the States, indeed, the rule in Hiscocks v. Hiscocks ^ is strictly followed, and parol evi- dence is not admitted, in such cases, of the. testator's intent.** In ^ most of the States, however, many questions which in England would be determined by construction, will be aided by parol, while similar evidence will also be allowed, even of the testa- tor's intent.' This nebulous state of the law, however, is rapidly passing away. Hence arises the great value of Sir James Wigram's work, since to that complexion all adjudications will come at last, except so far as he himself has deviated from the bounds of strict philosophy. Certainly, there appears to be no essential distinction between latent ambiguities and defective or inaccurate descriptions. Both classes of difficulties are essen- tially equivocations, when th.6 question can not be disposed of under a rule of construction. This is, perhaps, the only phase of present American latitudinarianism, which is likely to pre- vail ultimately as the standard. [The evidence of the scrivener who drew the will is not ad- missible for any purpose of construction whatever,^ except in the case of a latent ambiguity arising either from fact or law.' The cases of Nolan v. Bolton ^ and Lorieux v. Keller,' can hardly be supposed to have much shaken so radical a rule of construction as the inadmissibility of evidence of the testator's intention, except in cases falling under Proposition Seven. [Where words have a well known and unambiguous signifi- cation, parol evidence of the testator's intention is not more admissible in the United States than in England.* Therefore, the meaning of the words " children," ' " parent," ^" &o., cannot be extended by parol." ' PI. 183. " See Herrick ■». Noble, 37 Vt. 1. ' Wagner's App. 43 Penn. St. 103. * Canfleld v. Bostwick, 31 Conn. 550. - " McAllister v. Tate, 11 Rich. Law. 509. » 35 Ga. 353. ' 5 Clarke, 196. » Aspden's Estate, 3 Wallace, .Jr. 368. Shearman v. Angel, Bailey, Ch. 351 ; Fouke «. Kemp, 5 Harr. & J. 185. " Judy V. Williams, 3 Carter, 449. " Smith V. Smith, 1 Edw. Ch. 189 ; see Grant v. Grant, 18 W. R. 30. 11 250 , PROPOSITION VII. [The declarations of a testator are admissible only in cases falling under Proposition Seven, and for no other purpose, either as regards the application or the construction of the will.^ But, where the issue is devisa/oit vel non, and the question is whether the will or passage in contention is the will of the tes- tator or not, his declarations are always admissible as to that fact, though not as to the construction. In cases of alleged fraud, therefore, where there is generally no question as to the construction, but only whether the will propounded is the act and will of the testator, his declarations are admissible either to establish the charge of fraud,^ or to refute it ^ as explained , wfra. But, though admissible for this purpose, the extrinsic evidence cannot be afterwards used in aid of the construction, although it is a .tolerably general rule of evidence, that tes- • timony once admissible is then available for every purpose. Upon this ground, as parol evidence is allowable to rebut the charge of a criminal offence, such as trespass, the fact of taking possession of land under a contract, may be proved by parol, in aid of a suit for specific performance. [As regards latent ambiguities, parol evidence is, as in a case of fraud, admissible of the testator's declarations, whether made before or after the execution of the will.^ This rule, however, seems to have been ignored in some of the American cases, "apparently on the ground, that such proof is admissible only as evidence of the rea gestm? But it seems to be such, even when ex post facto, at least in a case of fraud, undue in- fluence, or latent ambiguity. However, parol evidence of a testator's intentions is only receivable as to what his- inten- tions were at the time of making the will.' [Declarations made by the testator subsequent to the will are inadmissible to show what he meant by the phrase " nephews ' Osborne v. Vamey, 7 Metcalf, 301 ; Farrar «. Ayrea, 5 Pick. 404 ; Bradley ?. Bradley, 24 Mo. (3 Jones) 311. ' Roberts v. Trawick, 17 Ala. 55; see Ca-wthom v. Haynes, 24 Mo. (8 Jones) 236. ' Roberts v. Trawick, 17 Ala. 55. * Doe d. Allen, 13 Ad. & Ellis, 451. ' See Vernor v. Henry, 3 Watts. 885. » T^hitaker v. Tatham, 7 Bing. 628. PROPOSITIOZir VIL 251 and nieces." Indeed, where the phrase is itself unambiguous, the American and English rules are identical with respect to the reception of parol evidence.^ See, however, Grant v. Grant,' as to the meaning of the word " nephew." A generic name or a reference to a class, such as " nephews," " children," * '• heirs," can never per se give rise to a latent ambiguity, though as in the case of Grant v. Grant, such ambiguity may, of course, be occasioned by other parts of the description, as, for instance, by the name of the " nephew," " child," or " heir," referred to.' [The authority of the decision in Beaumont v. Fell,* is not weakened by the fact that the Master of the Rolls seemed to consider that if the donation related to land, the gift might be construed differently. As legacies were governed by the rules of the civil and common law originally, he thought this fact af- fected the construction, even after the passing of the statute of frauds. The case of Forth v. Chapman and other similar de- cisions seem to bear out this distinction. The case was proba- bly decided on the ground of the nickname. However, all that the statute of 'frauds requires to be put in writing is such a will, as before the statute would have been valid without writ- ing. "Whatever latitude of designation, therefore, was allowed by the Ecclesiastical Courts, before the statute, ought to be also permitted now. There is,, consequently, much reason to regard the d/iotwm of the Master of the Eolls, on this point, in Beau- mont V. Fell, as sound and philosophic, although it is strongly argued against by Jarman.'' [The intention of a testator is a fact capable of proof like other facts. Although volition is invisible, yet, as a malua ani- mus may be proved in a criminal case by evidence of declara- tions made by the accused, so may the benevolence of a testator, when manifested by declarations, be proved with equal ease. The Court, however, does not admit evidence of such intention as readily as it will of the circumstances of the testator. Per- ' Cromer v. Pinckney, 3 Barb. Ch. 466. = Weston D. Foster, 7 Met. 397. = 18 W. R. 30; 8. c. 39 L. J. 'N. 8. 373. * Asay V. Hoover, 5 Penn. St. 31. ' AUen ». Allen, 18 How. U. 8. 385. " 3 P. W. 141. ^ Vol. I, 383 ; see Thomas ®. Stevens, 4 John: Ch. 607. 252 PROPOSITION VII. jury is not so easy in instances of this latter character. The logic of facts, or circumstantial evidence, is itself a barrier against the sorting of the facts to order, and the reason for the origin o^ the rule which confines parol evidence of intent to cases under Proposition Seven, is to be found in the fact that, besides involving a departure from all construction, the neces- sity for admitting parol is discovered only in applying the dis- positions in the will to the circumstances of the testator, and that his intention would be the last thing that could come to be mixed up in such application. [Where parol evidence of the testator's declarations is ad- missible, it seems, as already stated, immaterial whether the dec- larations are prior, cotemppraneous with or subsequent, to the making of the will,' p'rovided that. they, relate to the intention he had at the time of mating the will. Possibly, a subsequent declaration might not be deemed to have the same weight, as if it had been made at the time of making the will. But, the admissibility of evidence is a distinct question from its weight. [The case of Careless v. Careless,' is a model case of am- biguity, and seems like the old fictitious issues of Goodtitle v. Badtitle, to have been bespoken for the purpose of showing in what a degree of carelessness some testator's indulge. They may be likened to persons who enclose money in undirected envelopes. The identification of the donee is virtually left wholly to parol. In the case last referred to, the bequest was " to Eobert Careless, my nephew, the son of Joseph Careless." The testator had no brother named Joseph, but had two nephews, each named Robert Careless. One of these was the son of John, the other of Robert. In certain parts of the will Robert was described as the son of John, and sometimes as the testa- tor's nephew, Robert, without further description. The testator was intimately acquainted with John's son Robert, but his other nephew lived at a distance, and was personally unknown to him. It was doubtful even whether the testator knew that such a.person existed. Sir "W". Grant admitted parol evidence to explain the latent ambiguity, and beld that the testator ih- ' Doe d. Anen v. Allen, 4 Jurist, 985. " 1 Mar. 384 ; See Stokeley v. Gordon, 8 Md. 496. PROPOSITION VII. 253 tend.ed throughout the will to refer .to that nephew only, whom he best knew. The insertion of the new word Joseph, however, woul4 seem' to be accounted for more easily by sup- posing that the testator meant a different person from John. If no other brother was referred to, there is less likelihood that the drawer of the will would have slipped in resp'ect to the name. Besides, it is more likely that the testator would have be- queajthed something to the family of his brother Thomas, than have left all to one branch only. However, the parol testimony, doubtless, overthrew these presumptions and conjectures. There is no doubt, at all events,, that the parol evidence was rightly admitted. [In Lord Cheney's case,^ it was resolved that if a man have two sons, both baptized by the name of John, and believing that the elder died, devise his lands to his son John generally, upon the return of the elder son, the younger may prove that it was he himself whom his father intended to designate. The effect of this doctrine is to put a person purchasing from a de- visee, upon enquiring whether there is not some other person of the same name whom the testator may have intended. But a difficulty in this respect rarely occurs, especially as devises are generally confined to relatives or persons standing in a peculiar relation to the testator. A difficulty of the kind suggested may of course occur, even .where the person in possession' claims as purchaser. But, as he usually has the title deeds in his possession, and innumerable other evidences of the res gestae and of his identity, the latent ambiguity is immediately corrected. [The reason assigned by .Coke for the doctrine in Lord Cheney's Case is, that no inconvenience can arise in such in- stances of ambiguity, " because he who sees such will, ought at his peril to enquire which John the testator intended, which may be easily known to him who wrote the will, and others who were privy to his intent." It is hardly necessary to add,- that the reason ascribed for the rule by Lord Coke would ap- ply to every case of ambiguous expression in a will. The true reason for admitting direct evidence of the testator's intent in ^8uch case is, the paramount necessity of such testimony to ap- ply the devise. ' 5 Rep. 68 b. 254 PROPOSITION VII. [In the case of Doe d. Morgan v. Morgan,^ a testator devised certain property to his nephew, Morgan Morgan, and then in the same will, devised other property to his nephew, Morgan Mor- gan, of the village ofMothvey. The testator had two nephews, one of whom lived at Mothvey, and the other elsewhere. It' was contended that the difference in the description between Morgan Morgan, simply, and Morgan Morgan, of the village of Mothvej', pointed to two different persons, and that parol evi- dence was inadmissible. The Court, however, appears to have ■ regarded the phrase, in the village ofMothvey, as so much sur- plusage, and admitted parol evidence of the intent. The case let in evidence of intent where it was not absolutely necessary, and this, indeed, seems not to harmonize wholly with principle. , The distinctness of the devises, and the difference in the de^ scription of the devisees, would seem to indicate that the tes- tator meant different persons. This case would seem to imply that when the, name of the donee is applicable to more persons than one, parol evidence of Intent is admissible.' But this rule is not yet established, and parol evidence of intent would doubtless be , rejected, where any distinctive mark is added tO' the name, as in Doe d. "Westlake v. Westlake.' [In cases falling under Proposition Seven, the description of the person or thing intended, is applicable with legal certainty to each of several subjects.^ Unless it is so applicable to more than one, there cannot be evidence given of the testator's in- tention. Any incompleteness of description can only be cured by parol evidence of the circumstances of the testator, but not of his intention. If the description is applicable with legal certainty, evidence of intent can be given in the United States, but semhle not in England, as a rule, unless the description is equally applicable to two or more persons or things. [There are certain clear lines of principle dividing Proposi- tion Seven from Proposition Three. Where there is a difficulty in applying the description of the will to any subject or object. ' 1 Cromp. & M. 335. ' Tucker v. Seamen's Aid Society, 7 Metcalf, 208, 209. ' 4 B. & Aid. 57. ' 1 Phil. Ev. 533; note, 939;. 1 Greenl. Ev. § 390; Grass «. Ross,, 5 Snee'a, (Tenn.) 311. PROPOSITION VII. 255 Proposition Three applies, and evidence can be given only of . tlie circumstances of the testator, but not of his intention ; bnt, where there is no difficulty in applying the description in the vvill to a single subject or object, but the conflict is between several subjects or objects, all equally appropriate as regards the legal construction, Proposition Seven applies, and evidence of intention can be given. [Necessity is the plea for departing from the primary niean- ing of a term or phrase.^ Necessity, in like manner, is the rea- son why extrinsic evidence is resorted to. We find accord- ingly, that, when the necessity of the case (in the abstract), re- quires it, even parol evidence may be given of the testator's clirect intention. For instance, if he devises his lands of Auburn, to Oliver Goldsmith, and he has two estates of the name of Auburn, or tWo acquaintances named Oliver Gold- smith,^ the devise may nfecessarily be void for uncertainty, unless parol evidence is admitted to identify the particular sub- ject or object of the gift. What is peculiar to this class of ambiguities is, that the parol evidence tendei-ed in aid of the construction need not be confined to facts, or to the acts of the testator, but may directly relate to ■ his intention, and prove the same by expressions used by him. ' See Proposition I. ^ Storer v. Freeman, 6 Mass. 440 ; Hand o. Hoflfman, 3 Halst. 78. OF LATENT AND PATENT- AMBIGXJITIES. 196. The rule of law, an elucidation of wMcli has been attempted in the' preceding pages, is commonly expressed hj Lord Bacon's well-known maxim {Regula 23), " Ambiguitas verhorwm latens verificatione av/pple- tur ; nam quod ex facto orit/wr amhigwwm verificatiom facti tollitwry 19t^. Upon this maxim, Lord Bacon' observes : — " There be two sorts of ambiguities of words : the one is mnbiguitas patens^ and the other latens. Pat'ens is that which appears to be ambiguous upon the deed or instrument ; latens is that which seemeth certain, and without ambiguity, for anything that appeareth upon the deed or instrument; but there is some col- ■ lateral matter out of the deed that breedeth the am- biguity. " Ambiguitas patens is never holpen by averment, and the teason is, because the law will not couple and mingle matter of specialty, which is of the higher ac^ count, vrith matter of averment, which is of inferior account in law ; for that were to make all deeds hollow, and subject to averments, and so, in effect, that to pass without deed, which the, law appointeth shall not pass but by deed. "Therefore, if a man give land to J. D. et J. S. et JioeredihuSy and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited. PATENT AMBIGUITIES. 257 " So, if a man give land in tail, ttougli it he by will, the remainder in tail, and add a proviso in this manner : Provided, that if he, or they, or any of them, do any, etc., according to the usual clauses of per- petuities, it cannot he averred upon the ambiguities of the reference of this claiise, that the intent of the devisor was, that the restraint should go only to him in the remainder, and the heirs of his body ; and that the tenant in tail in possession was meant to be at large. ''"Of these, infinite cases might be put, for it holdeth generally, that all ambiguity of words by mattfer within the deed, and not out of the deed, shall be holpen by construction, or in some case by election, but never by averment, but rather shall make the deed void for un- certainty. ' " But if it be crnibiguitas latens, then otherwise it is : as, if I grant my manor of S. to J. F. and his heirs, here appeareth no ambiguity at all ; but if the truth be, that I have the manors both of South S. and North S., this ambiguity is matter in fact ; and, therefore, it shall be holpen by averment, whether of them, was that the party intended should pass. " So, if I set forth my land by quantity, then it shall be supplied by election, and not averment. "As, if I grant ten acres of wood in Sale, where I have a hundred acres, whether I say it in my deed or no, that I grant out of my hundred acres, yet here phall be an election in the grantee, which ten he will take. " And. the reason is plain, for the presumption of the law is, where the thing is only nominated by quantity, that the parties had indifferent intentions which should be taken, and there being no cause to help the uncertainty by intention, it shall be holpen by election. 258 LATENT AKD "But in the former case the difference toldetliy where it is expressed, and where not ; for if I recite, whereas I am seized of the manor of North S. and South S., I lease unto you wnwm manerimn-de S. — ^there it is clearly an election. So, if I recite, -v^^here I have two tenements in St. Dunstan's, I lease unto you vmutn tene- mentwn, — ^there it is an election, not averment of in- tention, except the intent were of an election, which may be specially averred. "Another sort of amhiguitas latens^ is correlative unto these ; for this ambiguity spoken of bfefore is when one name and appellation doth denominate divers things; and the second, when the same thing is called by divers names. " As, if I give lands to Christ Chu3?da in Oxford,, and the nanie of the 'corporation is ^cclesia Qhristi in Unwermtaie Oxford^ this shall be holpen by averment, because there appears no ambiguity in the words ; for this variance is a matter in fact : but the averment shall not be of intention, because it doth stand with the words. " For, in the case of equivocation, the general intent includes both the special, and therefore stands with the words : but so it is not in variance, and therefore the averment must be of matters that do endure quantity, and not intention. " As to say, of the precinct of Oxford, and of the University of Oxford, is one and the same, and not to say that the intention of the parties was, that the grant ' Can the word " ambiguity," as used in this place, be understood — in its proper sense — as importing uncertainty ? What uncertainty can arise from the omission of an aliaa^ provided the subject is called ty one of its proper names ? " Ambiguous— Doubtful ; having two meanings ; of un- certain signification." — Johnmn. PATENT AMBIGUITIES. 259 should be to Clirist Churcli in that University of Ox- ford." 198. The only point which remains to be considered is, — How far the Propositions stated above are consis- tent with Lord Bacon's Maxims. * 199. The attention of the reader must, in this place, be recalled to the proper meaning of the term a/m- higuity, as applied to the subject of these observations.^ 200. A written instrument is not ambiguous because an ignorant and uninformed person is unable to inter- pret it. It is ambiguous only, if found to be of uncer- tain meaning when persons of competent skill and in- formation are unable to do so. 201. Words cannot be ambiguous, because they are . unintelligible to a man who cannot read; nor can they be ambiguous, merely because the Court which is called upon to explain them may be ignorant of a particular fact, art, or science, which was familiar to the person who used the words, and a knowledge of which is therefore necessary to a right understanding of the words he has used. If this be not a just conclusion, it must follow — that the question, whether a will is am- biguous, might be dependent, not upon the propriety of the language the testator has used, but upon the degree of knowledge, general or even local, which a particular Judge might happen to possess ; nay, the technical pre- cision and accuracy of a scientific man might occasion his intestacy, — a proposition too absurd for an argu- ment. I^ follows, therefore, that a Judge is not in a situation to say whether a testator's will is ambiguous or not until he has first applied to it the extrinsic evi- dence to which the Fourth Proposition ^ refers. ■ 202. Again, a distinction before adverted to,^ but Supra, pi. 96. ' " Supra, pi 56, ' Supra, pi. 96. ■260 LATENT ANB not noticed in any of the reported cases, must be taken between iThOGCuroGy and ambiguity of language. 203. Language may be inaccurate without being ambiguous, and it may be ambiguous although per- fectly accurate. If, for instance, a testator haying one leasehold house in a given place', and no other house, were to devise his freehold house there to A. B., the description, though inaccurate, would occasion no am- biguity. If, however, a testator were to devise an ■estate to John Baker, of Dale, the son of Thomas, and there were two persons to whom the entire de- scription accurately applied, this description, though accurate, would be ambiguous. It is obvious, therefore, that the whole of that class of cases in which an iaac- curate description is found to be sufficient merely by the rejection of words of surplusage are cases in which no ambiguity really exists. The meaning is certain, notwithstanding the inaccuracy of the testator's lan- guage. A Judge in such cases may hesitate long be- fore he comes to a conclusion; but if he is able to come to a conclusion at last^ with no other assistance than the light derived from a knowledge ~ of those cir- cumstances to which the words of the will expressly or tacitly refer, he does in effect declare, that the words have a legal certainty, — a declaration which of course excludes the existence of any ambiguity. The language may be inaccurate ; but if the Court can de- termine the meaning of this inaccurate language, with- out any other guide than a knowledge of the simple facts, upon which — ^from the very nature of language in general — its meaning depends, the language, though inaccurate, cannot be ambiguous. It follows that, in all cases, the amplication of the extrinsic evidence, to ijbhioh the Fifth Proposition refers, must precede any PATElifT AMBIGUITIES. 261 decla/raUon which a Oov/rt Gomihome a right to make that a will is arhhiguous} 204. The circumstance, that the inaccuracy is appar- ent upon the face of the instrument, cannot, in principle,, alter the case. 205. With the distinotions just adverted to in his mind, the reader "will have no difficulty in following the writer through the few remaining observations on the subject of latent and patent ambiguities. 206. It has been shown, in the preceding pages, that evidence of two descriptions has, under circumstances, ' been held admissible in aid of the exposition 'of wills, namely: 1. Explanatory evidence, consisting of evi- dence of collateral facts and circumstance only. 2. Evidence to prove intention as an independent fact.^ 207. Now, courts of l^w, in admitting evidence of the first description, have professed to savc^hole Lord Bacon's rule, and must, therefore, have considered that the admission of such evidence was consistent with the rule. There is no reason for questioning the soundness of the judgment which led to such a conclusion. The strictest interpretation of which the rule is capable can- not be stated higher than this,— -that courts of law, in expounding a written instrument, are precluded from giving to the instrument any, effect which it does not express ; and if it be conceded that the admission of evidence of the first description is strictly consistent with the office of simply ascertaining what the instru- ment itself expresses. Lord ' Bacon's rul.e is untouched by admitting it. Indeed, it is deserving of considera- tion, whether the language of the rule does not tacitly concede the admissibility of such evidence. Lord Bacon, in his concluding paragraphs, expressly points at the « ' Supra, pi. 96. ' Supra, pi. 10. -262 LATENT AKD distinction between evidence of matters collateral to tlie intention, and evidence of tlie intention itself; and the maxim, in speaking of ambiguities which arise " ex fcbcto^'' necessarily supposes the language of the will, and the facts with reference to which it was written, to have been collated together. It is the incongruity or want of correspondence between the language and, the facts which raises- a laUnt ambiguity, in the common acceptation of the term. 208. It may be asked, however, whether the inile is ■ not violated, when evidence of the first kind is admitted in aid of a description which, vjpon the face of the will, is inaccurate or imperfect ? With confidence it is an- swered — ^No. The inaccuracy of the- testator's language in such cases is undoubtedly patent ; but as the mean- ing of inaccurate language may be unambiguous, it is impossible to predicate of a will in such cases, or in any case, that it is ambiguous, until the effect of bringing .the language into contact with the facts to which it refers shall first have been tried. See the case of Goblet V. Beechey.^ The word "mod," as used by NoUekens, in the 11th codicil to his will, was a pdtent inaccuracy ; but the coiirt, upon further directions — with no guide to the testator's intention but his words, and the' knowl- edge which is common to every working sculptor in the country — decided that the testator's models were suffi- ciently described by the word, — a decision which nega- tived the existence of any ambiguity whatever.^ The reversal of the Vice-Ghancelior's judgment^ in that case does not affect this point. 209. To what class of cases, then, does Lord Bacon refer, in speaking of patent ambiguities ? Let his own commentary upon the rule answer for him. The exam- ' Appendix, No. 1. _ " Supra, pi. 96. PATEKT • AMBiaUlTIES. 263 pies by wMcli lie illustrates that part of tlie rule which, relates to patent ambiguities, are not cases of mis- description of the object of the testator's bounty, or of the subjects of disposition, but cases in which (the per- sons and things being sufficiently described) the testa- tor's general intention with respect to them is ambig- uously expressed.^ Such cases are within the Sixth Proposition above stated, and are not saved by the ex- ceptions contaiaed in the Seventh Proposition. A devise to one of the sons of A., who hath several sons, is a case within the same principle.* No person in par- ticular is mtended by the will. 210. So far the maxim and the authorities referred to in the preceding pages appear to stand together. But what is there in the maxim which ever authorized the admission of evidence of intention where the lan- guage of the will was wholly inapplicable, or of uncer- tain application, to any subject ? In the first place, can such a will be properly termed ambiguous ? . An instru- ment, the words of which are sensible in. more senses than one, is properly speaking, an mnbiguous instrument. But an instrument which points at no certain intention is (in the language of the courts) ins&rf^sible, and not merely ambiguous. Admitting, however, that such a will as we are now supposing is an ambiguous will within the meaning of the maxim, the question whether the maxim authorizes its admission in such cases will still recur. The words of the maxim are, undoubtedly, very general; but the examples by which it is illus- trated are not so. The examples given by Lord Bacon, ' The points of inquiry under a will may, for general purposes, be classed under three heads : — 1. The person intended. 3. The thing in- tended. And, 3. The intention of the testator with respect to each of them. ^ 2 Vem. 635. 264 LATENT AND in whicli evidence to prove intention is said to be ad- missible to remove or explain a latent ambiguity, are cases in whicli the language of tlie will includes and describes the subject intended by the testator, and is am- bignons, only because it describes and is equally appli- cable to more ihcm gne subject. It may admit of argu- ment, whether the commentary on the maxim does not justify the admission of evidence to prove intention even in such cases upon that speci&c ground. The ob- servation — " For, in the case of equivocation, the general intent includes both the special, and therefore stmds with the words, but so it is not im, va/riamce " — ^may, without violence to the language of the commentary, be considered as applicable to all the cases of latent ambiguity, which are put in illustration of the maxim.^ Can the practice, then, of admitting evidence of inten- tion" in cases in which the description of the person or thing is inapplicable, or of uncertain application, to any subject, be considered a sound exposition of Lord Bacon's rule, seeing that the practice has carried the force of his general expressions — ^beyond the examples by which he has illustrated his meaning — to cases not in the same predicament ? The decisions in Miller v. Travers on appeal, and in Hiscocks v. Hiscocks, have, it is hoped, set this important point at rest. [Equities may relate either to the whole will, or be merely presumptions of construction applicable to certain dispositions only. To the first class belong cases of fraud, accident, and mis- take ; to the second, presumptions, against the letter of a par- ticular gift, such as that a,gainst cumulative legacies, double portions, &c. Equities founded upon accident or mistake, as distinguished from 'fraud, can, as already stated,* only lead to the nullification of a will, or, a part thereof, but not to its amendment. This is a characteristic distinction between such ^ 4 ^ ' See Hiscocks v. Hiscocks, mpra, pi. 183. " Supra, p. 47. PATENT AMBIGUITIES. 265 equities under a will, and similar equities arising under a con- tract. In the latter instances, courts of equity will give relief in respect to accident and mistake, at least, as willingly as in respect to fraud, which must be very conclusively proved. [The construction of a will is, with the exceptions men- tioned, the same both at law and in equity,* except as regards executory trusts. These will be construed differently in equity, . or rather tl\ey will be enforced in that court so as to give the precise legal interest to each beneficiary that was intended by the testator. As far as mistakes in wills are remedied in equity, they stand on the same footing there as at law. If they are apparent on the face of the will, they are not miistakes properly so called, but eases of involved construction.^ Such errors will be construed at law precisely in the same way as in equity; [A mistake, however, must be distinguished from an uncer- tainty. For, if this is patent on the face of the will, the dis- position is so far void. But, as is shown in t,he chapter in the supplementary treatise, on Void Testamentary Gifts, it is not eveiy gift appearing to be uncertain, that is really such. Equity, too, will correct a mistake of diction, apparent on the face of the will, as this is rather the adoption of a rule of con- struction, than the admission of parol, since the same evidence is not allowed in case the mistake is dehors the document. But, a substantial ambiguity patent on the face of the will pan- not be explained by parol evidence of the testator's intention,* and is not aided by construction. [As to what is sufiicient evidence tliat an omission to pro- vide by will for the grandchildren of a testatrix was intentional, under the Massachusetts' statute of 1862, see Loring v. Marsh.* [The grounds, then, on which parol evidence is admissible in aid of testamentary interpretation, are, as already shown, identification, fraud, and the rebutting of a legal presumption. ' Bwpra, p. 46. = Mann v. Mann, 1 Johns. Ch. 331 ; s. c. 14 Johns. 1. ' 1 St. Eq. Jur. § 169-183 ; Rothmaler e. Myers, 4 Desaus, 215 ; Arthur «. Arthur, 10 Barbour, 9. < Hyatt 1!. Pugsley, 23 Barbour, K T. 285. ' 6 Wall. 337 ; s. c. 2 CUff. 469. 18 266 LATENT AND The evidence, however, is also admitted in cases of accident and mistake, to delete the will or any part thereof, but not to add to it, or explain it in any manner. [The reason why accident or mistake is not rectified in respect of wills, appears to be because the testamentary bene- ficiaries have no equity against the heir, and not because the statute of frauds is more directly operative in the case of a will, than it is in regard to contracts, within the statutory pur- view. A will, however, or any part thereof, executed by mis- take, is as easily overthrown as any other instrument similarly executed. For, the statutes merely provide that certain nuncu- pative and informal wills shall not be valid, but do not enact that every will prima facie validly executed is really the will of the testator. In the case of Comstock v. Hadlyme,* Wil- liams, J., observes, that " if courts of chancery cannot admit such evidence to prove a mistake which they might correct, courts of law cannot admit it to prove a mistake to set aside the will." The primary reason, however, why equity rejects the evidence in question is, because there is no equity to be en- forced, even where the mistake can be proved. The evidence is thus inadmissible if tendered to prove an omission, jEguitas nihil agitfrustva. But, on an issue devimvit vel non, evidence of mistake is admissible to show that the written will, or any pa,rt thereof, was executed by accident or mistake. These are questions, however, of probate rather than of construction. [Another obvious reason why equity refuses to amend wills, like other documents, on the ground of mistake or accident, is, that the party to be charged is in all cases dead, and cannot be examined upon, or tender, interrogatories, like a party to a con- tract inter vivos. The Court of > Chancery, therefore, has not the ordinary means for rectifying wills. Her proceeding would be virtually ex parte, if she set no limits to the adduction of parol evidence in aid of testamentary construction. Besides, beneficiaries under wills are volunteers, and equity never aids a volunteer, except in cases of fraud, which implies a considera- tion moving from the testator. Unless there be such consid- eration, fraud or undue influence will not be relieved against. There is no case to the efiect that, where a testator has been in- ' 8 Conn. 254. PATENT AMBIGUITIES. 267 duced by fraud or undue influence not to make a certain will, the court will deem such a will to be made, thougb the party acting fraudulently has not benefited in any way by reason of his deceit. [In cases under deeds, a mistake or imperfection in the de- scription of the parcels may be proved in equity by acts or admissions of the party sought to be charged,^ if the plaintiff have partly performed the contract ; and, if the description in the deed to a plot on record identify the lots, this is sufficient, even though the record is irregular.^ The last case cited is equally applicable to wills, as regards extrinsic evidence ; so are aU cases respecting contracts inter vivos, if the eqxiity sought to be enforced under a will is maintainable. [In Tucker v. The Seamen's Aid Society," the will gave a legacy to " The Seamen's Aid Society in the city of Boston." Another society, called " The Seamen's Friend Society," claimed the gift on the ground of mistake. The latter society offered to prove that the testator had no knowledge of the society named in the will (although proof of a negative is rarely thought of) ; that he was deeply interested in the welfare of the Seamen's Friend Society, and expressed an intention to give it a legacy, that he directed the scrivener who wrote the will to insert a clause to this effect, but that the scrivener told the testator that the name of the society was the Seamen's Aid Society, to which accordingly the legacy was bequeathed. Parol evidence of the mistake was held to be inadmissible. [In the case of The Earl v. The Countess of Newburgh,* a testator gave directions to his solicitor to prepare a will giving his wife a life interest in his lands in the counties of Gloucester and Suffolk. The draft, however, was submitted to a convev- 3 3 (/ ancer, who struck out the word Gloucester, and the person who made the fair copy of the settled draft changed the word coun- ' Atkinson v. Cummins, 9 How. 479. , ' Jones V. Johnston, 18 How. 150. = Y Metcalf, 188. See Bradley v. Bradley, 34 Mo. (3 Jones) 311 ; Jack- son r>. Sill, 11 Johns. 301. See Chappell v. Avery, 6 Conn. 34 ; Farrer v. Ayres, 5 Pick. 404 ; Csesar «. Chew, 7 Gill. & Johns. 137 ; Hyatt v. Pugs- ley, 38 Barbour (N. Y.) 385 ; Harrison v. Morton, 3 Swan (Tenn.), 461. ' 5 Madd. 864; s. c. 1 M. & Scott, 853 ; awpra, p. 331. 268 LATENT AND ties into county. It was the abstract of the will, and not the will itself, that was read to the testator before execution, bo that the mistake remained undiscovered. Tlie vice-chancellor held that even if the omission were proved, the court had no power to correct the will according to the intention, inasmuch as that would amount to a repeal of the statute of frauds in all cases of mistake or accident. It was, on a rehearing, suggested that there was no omission in the will, but that the passage caus- ing the difficulty was written but afterwards struck through with a pen, and then copied into the fair will. An issue, therefore, was asked to try whether this clause was part of the will or not. The judges, on a case submitted to them by the House of Lords, unanimously declared the evidence to be inadmissible. Lord Eldon, seTnMe, sent a case to a jury to try whether a similar will was the will of the testator on the point in ques- tion. [In Comstock v. Hadlyme,* it was contended that an impor- tant part of the intended will having been omitted by accident, this rendered the whole will void. But this argument almost implies that a partial intestacy is illegal, though it is not un- usual for a testator to adeem, or to make only partial disposi- tion of his property, without any residuary clause. In the case cited, the name of a legatee -was inserted, but the amount of the legacy was omitted. ParoL evidence, of course, was rejected as to the intended amount. A similar omission occurred in Cham- berlayne v. Chamberlayne.^ But, if there was a limitation by way of remainder or executory interest after, or in defeasance of, such primary gift, the question would be different. The remainder, however, if clearly separable from the primary gift, though defined by it, would be still valid.~ [In the case of Lord Walpole v. Earl of C/holmondeley,' the point at issue would most probably have been construed by the light of parol, if the question related to a deed. In that case the testator made a will in 1752, devising his real estate. In ' 8 Conn. 254. ' 4 Ves. 51, 57. See Salmon ». Stuyvesant, 16 Wendell, 321 ; Whit- lock v. Wardlow, 7 Rich. (S. Car.) 453 ; the chapter in supplementary treatise on Void Testamentary Gifts. ' 7 Burn. & East, 138, pi. 121. PATENT AMBIGUITIES. 269 1756 he made another will, altering the limitations of his realty in the former will. In neither instrument did he dispose of his personalty, appoint executors, or give directions as to' the pay- ment of his debts. In 1776, he desired his attorney to get his will from his steward, in order to add a codicil to it. The steward gave to the attorney the will of 1752. It appears the steward had jao other will in his possession. Tlie attorney then drew the codicil, which recited generally that by his last will and testament, dated 25th November, 1752, the testator had devised his real estate to certain uses, but had not charged the same with payment of his debts or legacies, or disposed of his personalty, or appointed executors. He declared this writing to be a codicil to his said last will, and revoked the same only 60 far as it was incompatible with the codicil. He then pro- vided for certain legatees, and for the payment of his debts and funeral expenses, and appointed executors. This codicil was duly executed. Parol evidence was offered to show that when the testator made the will of 1756, he told one of the witnesses that he and his great uncle (to whom the property was limited for life with remainder in strict settlement), had made reciprocal limitations in favor of each other's families, in case of failure of issue of either of them. It appeared also that when he made the codicil of 1776, he expressed no intention of altering the limitations of the , real estate further than by subjecting it to his debts, legacies, and funeral expenses. All this evidence was rejected, inasmuch as the codicil by republishing the will of 1752, had revoked the will of 1756. It was contended that the evidence raised a latent ambiguity on the words " last will dated 1752," that the last will was falsely described, and that, therefore, parol evidence should be resorted to in order to show whether the testator used the word last in its technical or its literal sense. [Lord Kenyon's reasoning on this point is very unsatisfac- tory. Neither of the instruments, he said, was a will properly so called until the death of the testator ; both were ambulatory, and the testator might have set up either. " But," continued his lordship, " supposing Lord Orford had said to the attorney, ' I have two wills in the steward's hands, desire him. to send me the last will,' and the steward had by mistake "sent him the first, this would have occasioned a latent ambiguity, which 270 LATENT AND might have been explained by other parol evidence just as parol evidence is admitted to show quo arrnno a will was cancelled, or as in the case of a child destroying a deed," Jarman^ observes that the acts referred to by Lord Kenyon admit of explanation, and "if the revocation had consisted in the steward sending the wrong wiU, it might also be explained by parol, but that the act of cancellation here was the codicil itself. The distinction is between res geatcB and a legal inference of revocation. The latter is not rebuttable, the former is. [It is somewhat hard to reconcile this case of Lord "Walpole V. Cholmondeley with the hosts of decisions where a similar latent ambiguity was rectified by parol, or even witli the case put by Lord Kenyon of the wrong will being sent by the steward. This, in fact, was a case in which the wrong will was sent, and which is erroneously described as the last will of the testator. Indeed, neither of the two first instruments was the last will of the testator (in the technical sense of the word last), after he made the codicil. The reasoning of Lord Kenyon, therefore, on that point seems weak. The case, however, was one of gross negligence, and hardly deserving the remedial hand of equity. For there was not merely one mistake, but many. It was, on the whole, however, a case fit to be illumined by parol, as the question related to the res gestm. A specific performance was not prayed for against the heir, on the ground that plaint- iff's ancestor had made a will as a consideration for the will of 1756 by Lord Orford. Contracts respecting wills, however, may thus be specifically enforced. [The courts of equity here have sometimes supplied omis- sions in wills, such as the want of the name of a donee.* But it is doubtful whether any case to this effect is of any real authority.' [On the whole, it is very doubtful" whether any departure from the English rules of testamentary evidence, even though sanctioned by authority, can be deemed solid or secure, except as to the rule in Hiscocks v. Hiscocks.* Exceptions to the gen- eral rules of evidence are likely, on future reconsideration of ' Vol. I, 351. " Geer v. Winds, 4 Desaua. 85. ° See 1 Redfleld, 571 ; Abercrombie ®. Abercrombie, 27 Ala. 489. *P1. 183; «Mpra, p. 325. ' PATENT AMBIGUITIES. 271 the same questions, either here or in England, to be deemed errors on the part of the judges who so decided, rather than as laying ■ down anything new on a definite or sound principle which ought to be permanently retained. ' [But parol evidence is admissible to rebut a mere equity, as, for instance, to show that legacies are cumulative, that a por- tion was not intended to be satisfied by a legacy ; or converse- ly, that the portionment of a legatee was not intended to be an ademption of a testamentary gift,^ or that land deeded to a devisee was an ademption of a previous devise.* Ademption virtually relates to the res gestm of the will. In all these cases the presumption is disputable, and against the letter of the will. It will be shown presently that where a trust results in equity, by reason and force of the testator's intent as declared in the will, and not in consequence of any adverse rule of equity, parol evidence is inadmissible for or against such inference of interpretation. [In Hall V. Hill,' Sir Edward Sugden held that as to the fact of advancement, the question was plainly open to parol evidence. So is the intent to advance. [Lord Eldon admitted parol evidence of a testator's inten- tion to rebut the presumption of the satisfaction of a debt by a legacy.* In Weall v. Eice,' Sir J. Leach said that even where the context furnished intrinsic evidence on the point, yet parol evidence of the testator's intention was admissible. But it seems to be wholly contrary to principle to admit of parol evi- dence against construction, as distinguished from a presumption raised by the court against the words of a will.* [As parol evidence of the discharge of a promissory note is receivable, because it relates to payment and not to the making of the note, 60,][>ari ratione, an ademption of a legacy is prov- able by parol. For, ademption is but a payment in advance, and so far diminishes the assets. Ademption is thus distin- guishable from revocation, which directly attacks the devise or ' Livermoe v. Aldiich, 5 Cush. 431. ' Thomas v. Capps, 5 Bush, 373. » 1 Dr. & W. 94-111-133. * Wallace «. Pomfret, 11 Ves. 542. ' 2 Kuss. & M. 267. ' See Williams on Ex'ors, 1173, Am. ed. 272 LATENT AND bequest as such, without conferring any benefit on the legatee. The Wills' acts apply to revocations, but not to ademptions, as regards their relations to parol evidence. [Evidence of a testator's declarations of intention made at the time of the ademption is admissible as part of the res gestm of the ademption.'^ Koper * thinks that declarations made at any time are admissible, and that those made after the advance- ment are tlie most valuable. The evidence is admitted not so much as of part of the res gestm, as of the direct intent to adeem. If such declaration be made after the will, it would show an intent to adeem in the future, if the former ademption was not effectual ; and although an intention to revoke is inoperative where there is a statute prescribing ceremonies to the revoca- tion,, yet an intention to adeem rests on a different principle when coupled with an act which ^er se is aa ademption,, and of which parol evidence can be given. However, if made at the time of the transaction, the declarations appear to be strongest ; though if made at any time, they are admissible.' [Sir William Grant, in Hartopp v. Hartopp,* as well as Koper,' has expressed his disapprobation of admitting parol evidence of any kind respecting the intention of a testator in giving a legacy, as to whether it was designed to operate as a payment -of a debt, or portion, or in substitution of a previous legacy. But, except on the question whether a legacy is cumu- lative or not, the difficulty arises from matter not documentary. There is, consequently, in point of principle, no objection to admitting parol evidence in such pases. [Where a will contains a provision for the payment of debts, and a legacy to a creditor, parol evidence is not admissible to show that the testator did not mean by his charge of debts to rebut the equitable presumption that his legacy was a satisfac- tion of the debt. For the parol evidence in such a case would not be rebutting an implied legal presumption, but would be in the teeth of an express charge. Kules of construction, as ' Dugan s. HoIIIdb, 4 Md. Ch. Decis. 139; Swoope's App. 27 Penn. St. 58 ; Kirk v. Eddowes, 3 Hare, 509. ' Vol. I, 364 ; see supra, p. 334, n. 5. ' "Wallace v. Pomfret, 11 Ves. 543. * 17 Ves. 193. ' 1 Roper on Legacies, 393. PATENT AMBIGUITIES. 273 distinguished from legal presumptions, cannot be rebutted by parol.^ [In Browne v. Selwin,* a testator bequeathed the residue to two persons whom he appointed his executors. One of these was indebted to him by bond, and the person who drew the will was ready to prove that the testator directed him, in writing, to insert a clause forgiving the bond, but tliat the draftsman thought it was unnecessary, as the obligor was to be executor. The House of Lords held this evidence of the mis- take to be inadmissible. [Parol evidence being always admissible to repel an equit- able presumption, the claim of an executor, in England, to the undisposed of personttlty might be formerly repelled or sup- ported by parol against the claims of the next of kin. This claim of executors has been taken away by Stat. 1 Will. IV, c. 40. It never existed in the United States. Cases, however, under the English rule are in point in respect to our presump- tions relating to cumulative legacies and the like. Presumptions thus differ from rules of construction : 1. In being opposed to the letter of the will; and, 2. In admitting of rebuttal or con- firmation by parol evidence. [Parol evidence is admissible to show that a testator placed himself in loco parentis in order to raise grounds for the pre- sumption against double portions, &c. The evidence thus ad- duced virtually relates to the res gestae. It is also connected in principle with the purview of proposition Four, as it tends to explain the epithet " child," as used by the testator. [Tlie admission of parol evidence to rebut a legal presump- tion in the case of a will is based on the ordinary law of evi- dence, which admits of parol to rebut disputable presumptions. TJbe alleged principle of this exception to the general exclusive- ness of written evidence is, that the difficulty is raised by parol, and, therefore, may be rebutted by the same weak evidence.* The alleged principle, indeed, is a mere exemplification of the fallacy petitio prinGvpii, since every rule of law is " See Hawkins on Wills, p. 300. Lee ». Pain, 4 Hare, 251. " Cas temp Talbot, 340. See Bradley v. Bradley, 34 Mo. (3 Jones) 311. ' Start V. Cannady, 3 Littell, 399; 4 Kent, 5tli ed. 305; 3 Story Ecl. Jur. § 1303 ; ■Williams s. Crary, 4 Wendell, 443. 274 I;ATENT AND written in the reports, or had its original theoretically in stat- utes, of which now as lost only, a secondary or parol evidence can he given. As applied to wills, however, there is a special ground for parol to rehut a legal presumption, since the testator is supposed to be ignorant of law, or at least to be inops consilii. [The burden of proof rests on the person claiming against a legal presumption. In the absence of any positive proof either way,' the presumption will prevail. This is what is meant by a presumption. Therefore, a person will not get • double portions in the absence of any positive, evidence to rebut th'e presumption against his right to both. [Much error,, however, is occasioned by statements in text- books * to the effect that parol evidence is admissible to rebut the presumption of a resulting trust. Parol evidence is, in-. deed, admissible, as already shown, to rebut or confirm a mere equity arising on matter dehors the will, as in the case of double portions, &c., or when the " equity " is against the letter of the instrument, as in the case of cumulative ' legacies. But parol evidence is never admissible to rebut any resulting trust that is in harmony with the plain construction of the will. Therefore, when a testator devises or bequeaths property to a trustee on certain trusts, any surplus interest that exists after the dis- charge of the trusts, or by reason of their invalidity, results to the testator's representatives as on an intestacy pro tcmto ', and parol evidence is not admissible to show that such was not the intention of the testator. The question in such cases is, whether the trustee was intended to retain the property, or the balance thereof, for his own benefit. This is a question to be altogether decided on the construction of the document, and not by parol. Any trust that results in such cases to the tesila- tor's heirs or next of kin, is not an " equity " at all. It is the old beneficial interest owned by the testator, and which he never intended to convey to the trustee. He has a mere legal estate in any property or part thereof not required for the pur- poses of the trust. At all events, the question wjiether he has ' 1 Jarman, 357. See Jones v. McKee, 3 Barr. (Penn.) 496 ; Powell «. Manson & Brimf Manuf. Co. 3 Mason, 363 ; Buck ». Pike, 2 Fairf. 1. PATENT AMBIGUITIES. 275 or not is one wholly of construction, and not . for parol evi- dence. The resulting trust in these cases is in accordance with the letter of the will, and with the rule which tends to cut down the estate of a testamentary trustee to the purposes and limits of the tmsts.^ [Eules of construction are easily distinguishable from pre- sumptions of equity, inasmuch as the former are always in accordance with the express terms of the will ; the latter are always against the letter of the instrument. A presumption of equity means one that is not grammatical, or in harmony with the ordinary acceptation of the phrase in question.* [Where the legal presumption, then, is according to the words of the will, parol evidence is not admissible ; but where the presumption either arises from matter dehors the will, or is against the words of the instrument, parol evidence is admis- sible. If the legacy is last in the order of time, as, if it is alleged to be a satisfaction of a debt or stipulated portion, parol testimony is not so freely admitted. There seems, how- ever, to be no ground for rejecting parol evidence in any of these cases. The legacy is a form of payment, and evidence must be admissible to show that the testator did not intend to pay twice, and so to diminish the assets. It is the matter of payment and its relations to the assets, like the ademption of a specific legacy, that constitute the true ground for the admis- sion of parol evidence in such cases,* and not any ambiguity in the will. For, if all the acts, are testamentary, parol evidence is not admissible. [It is to, be remembered, then, that though parol evidence is admissible to rebut or confirm " equities," against the letter of a will, or to show which of several testamentary guardians was meant by the testator ; * yet such evidence is not admissible to rebut the presumption of a resulting trust. ' See Lewin on Trustees, p. 181 et seq. See also chapters in supple- mentary treatise on " Gifts to Trustees " and " Conversion." ■ = See Gladding v. Tapp, 5 Madd. 59. ■ See Duckworth's Ex'rs v. Butler, 31 Ala. 164. * Anon. 2 Ves. Sen. 56 ; contra, Storke v. Storke, 3 P. Wms. 51 ; 2 Eq. Abr. 418, pi. 13. 276 L>.TENT AND PATENT AMBIGUITIES. [Chancellor Kent in Mann v. Mann/ expressed an opinion to the contrary. Eesulting trusts, however, are excepted out of the statute of frauds, but are neither included in nor ex- cepted out of the statutes of wills. Parol evidence surely ought not be admissible to show that a trustee, for an illegal or vain object, is to hold to his own use upon failure of the only specified trust. This would be to create a trust of land without a writing. In the case supposed, the devisee is a trustee for the representatives of tlie testator, by force of the limited expres- sions in the will and the exception of resulting trusts in the statute of frauds. Parol evidence seems to be, both on prin- ciple and authority, wholly inadmissible in such cases.^ [Parol evidence is not admissible to rebut a conclusive or statutory presumption, as, for instance, where statute law pro- vides that a will shall speak from a certain period, unless the context manifest an intention to the contrary.' As regards legal presumptions, in short, parol evidence is admissible only in respect to a presumption or rule of law raised contrcMy to the letter of the document. Equity raises no such contrary presumption in the case of a statutory or a resulting trust. [Extrinsic evidence is never admissible to rebut the pre- sumption of a lapse. That is always a question of construc- tion on the written evidence, and proof of the death of the beneficiary. This latter testimony is extrinsic, but it is not in aid of the construction.] ' 1 Johns. Ch. 231. ' See Langham v. Sanford, 3 Mer. 17 ; Leake d. Randall, 1 Yin. Abr, 188; G— a. pL 3; 2 Br. C.C. 527; Lewin on Trusts, p. 181. ' Canfield v. Bostwick, 21 Conn. 550. GENERAL CONCLUSIONS. 211. The conclusions, tKen, wLicli the preceding pages appear to authorize, are these : 212. I. That evidence of material facts is, in all cases, admissible in aid of the exposition of a will. [Parol evidence is not admissible to show what directions were given by the testator in regard to drawing the will,' nor to supply any defect or omission in the will caused by mistake or inadvertence,^ though even this has been sometimes done in the United States.' But parol evidence is always admissible to prove the insertion of a passage not dictated by the testator. Such a part of the document is clearly no part of the will, and therefore is not governed by testamentary law.* [As to mistakes by a scrivener, see Casar v. Chew.^ As to the difference, so far as parol evidence is concerned, between mistakes in a will required by the statute to be in writing, and those in a will written voluntarily, and not by reason of a stat- ute, see Andress v. "Weller,* and Fawcett v. Jones.'' [In Hippesley v. Homer,' a testator, by a will dated 1800, devised his estate in a certain manner. By a codicil, made in 1804, he empowered one of the devisees for life to jointure alid portion ; and after making various changes in the limitations ' Brown i>. Selwyn, Cas temp Talbot, 240; s. c. H. L. 3 Br. P. C. 607. ' Harrison v. Morton, 2 Swan, Tenn. 461 ; Earl of Newburgh v. New- burgh, 5 Mad. 364. ' Gear v. Winds, 4 Desaus, 85 ; Abercrombie v. Abercrombie, 27 Ala. 489. * Hippesley v. Homer, Turn. & Russ, 48, note ; Downehall v. Catesby, Moore, 356. ' 7 Gill & J. 137; Iddings v. Iddings, 7 S. & Rawle, 111. • 2 Green Ch. 604. ' 3 PhiUim, 434. ' Turn & R. 4*, n. 278 GENEBAL CONCLUSIONS. of the will, he gave certain additioiial powers of management to his trustees. The bill averred that the testator thought that the codicil contained only powers to jointure and portion, and prayed that it might be set aside. The answer admitted the allegations in the bill. Two issues were directed : first, whether ihe testator conferred the powers to jointure and portion ; and, secondly, whether he devised in the manner described in the remainder of the codicil. Tlie jury found in favor of the first issue, and against the second. The court then declared that this latter part of the codicil was void. This ruling is founded on the principle that an execution of a document as a will or codicil' does not make it necessarily valid. [It is quite immaterial, as regards thJB admission of parol evidence, whether the insertion of the passage in question was caused by fraud, accident, or mistake, if it was not inserted with the concurrence of the testator.* In all such cases, parol evidence is admissible, even of the intention and declarations- of the testator.' It is a general rule with respect to evidence under the Statute of Frauds and similar enactments, that these statutes do not exclude parol evidence of a negative nature — proving not what a party did, but what he did not. [The distinction, therefore, suggested by the court in The Earl of Newbury v. Countess of Newbury * is, as Jarman ob- serves,^ founded, in reason. Parol evidence cannot be used to show that' the testator used certain terms under mistake or mis- apprehension of their meaning, or that certain words are omit- ted from the will. Yet, it can be proved by parol, on an issue dmisavit vel non, that clauses have been fraudulently or even inadvertently introduced into the will, although the expunging of these clauses may amount in efiect to a total change in the meaning of the other parts. [This doctrine, however, appears to be cautiously acted upon, as it tends to repeal the wills acts much more effectually than the admission of parol to explain, without expunging, a passage. ' Small e. Allen, 8 T. K. 147 ; Powell v. Mouchett, 6 Mad. 216. = Smith V. Fenner, 1 Gallis. 173; Calvin v. Warford, 30 Md. 357; Doe V. Hardy, 1 Moo. & By. 535. ' 5 Madd. 364. * Vol. I, 355. GENERAL CONCLUSIONS. 279 [Where a testator signed a documeut, erroneously thinking it was a will already executed by him, the first will was upheld by parol evidence, of the facts.^ [And if a will is fraudulently idestroyed before grant of probate, the legacies will be upheld.^ The decision in Thomason V. Driskel,' to the contrary, does not seem to be based on any • sound principles. [A devisee who has contracted with the testator to stand seized to an illegal use, retains the legal estate, but is a trustee for the heir or next of kin,* and parol evidence is not admissi- ble to rebut this resulting trust.* [Where a testator is, by means of a promise that his wishes will be carried out, prevented from making a new will, the promise will be specifically enforced against the promisee.' [See, also, Williams v. Fitch,' where it was held the real beneficiary might recover the gift as a donatio mortis causa, in an action for money had arid received.* [Persuasion, of course, is not equivalent to force, pressure, or undue influence.' The influence, to be deemed undue, must have been suflScient to destroy the testator's free agency on the point in question." [Upon the question of undue influence, see Huguenin v. Beasley." 4 ' Small V. Allen, 8 T. K. 147. See Powell ». Mouchett, 6 Mad. 316. " Legatees of Langdon v. Heirs of Langdon, cited ia 23 Vt. 50. « 13 Ga. 353. * Strickland v. Aldridge, 9 Ves. 516. ° Lewin on Trustees, p. 181. ° Chamberlaine v. Chamberlaine, 2 Free. 34 ; Fearon, ex parte, 5 Ves. 633 ; Barrow v. Greenough, 3 Ves: Sen. 151. ' 18 N. Y. 546; 1 Redfleld, 513. ' See, also. Chamberlain v. Agar, 3 Ves. & Bea. 362 ; Mestaer v. Gilles- pie, 11 Ves. 638 ; Chamberlaine v. Chamberlaine, 2 Free. 34 ; Bryn v. God- frey, 4 Ves. 10; Paine v. Hall, 18 Ves. 475 ; Ridley v. Ridley, 11 Jur. N. S. 475. ' See Hall v. Hall, Law Rep. 1 P. & D. 481 ; Hall v. Hall, 38 Ala. 131 ; Fountain «. Brown, Id. 73. " Mountain v. Bennett, 1 Cox, 353. " 2 White & Tud. Lead. Cas. ; Davis v. Calvert, 5 Gill. & J. 302, 303 ; Duffield V. Robeson, 3 Harring. 384 ; Tomkins v. Tomkins, 1 Bailey, 92 ; Beall V. Mann, 5 Ga. 456 ; McMahon v. Ryan, 20 Penn. St. 329 ; Small v. Small, 4 Greenl. 223, and the chapter in supplementary treatise on "Void Testamentary Gifts." 280 GENERAL CONCLUSIONS. {Semhle, in the United States, a stronger degree of influ- ence is required than in England to invalidate a will on the ground of undue pressure.* [Where a clause in a will is proved by parol, and found by a jury not to be the will of the testator, and is expunged by the court, this does not necessarily render the other parts of the will void. These passages, if they are at all separable from the faulty ones, and are not tainted with the same defect, remain valid.* This is a question of construction for the court, and not open to proof by parol. If the mistake is one of omission, as, for instance, the neglecting to insert a particular gift as directed by the testator, such an omission cannot affect the soundness of the written will, for such omission cannot be proved by parol, except for the purpose of converting the residuary beneficiary or the representative of the testator into a trustee for the per- son who was cheated of his gift. This superadding of a trust to the gift in the will does not directly affect the construction of the will or the will itself. The case suggested is one clearly collateral to it. [Parol evidence is admitted in all the States to show that the real date of execution is different from that stated in the will.' This is in accordance with the general rules of evidence, which distinguish the res gestae of a written document from its construction. [As parol evidence is admissible to show that a will was obtained by fraud, it is. thus easier to defeat a will or a clause therein in toto than to reictify it or modify the .primary sense of its clauses by parol evidence. In Doe d. Small v. Allen,* the testator being pressed to execute a second will, asked if it was the same as the first, and was told that it was, whereon he executed the second will, which proved to be different. The Court of King's Bench held that evidence of these facts ought ' Harrison's Will, 1 B. Mon. 351 ; Miller v. Miller, 3 S. <^ R. 267 ; Lowe D. Williamson, 1 Green Ch. 82 i see, however, Goble ®. Grant, 2 Green Ch. 629. " Salmon v. Stuyvesant, 16 Wendell, 321 ; see Comstock ». Hadlyme, 8 Conn. 254. »Reflfell V. Reflfell, Law Rep. 1 P. & D. 139; Goods of Thompson Id. 8. * 8 Dum. & East, 147. GENERAL CONOIiUSIONS. 281 to be received. Bat if the question was not devisavit ml non, the validity, effect, or construction of the will could not be aided by parol, except in the cases arising under Propositions Three and Seven. [When a will is rectified, on the ground that it is also a •contract ; or, rather, when the heir of the testator is held bound by a promise, the consideration for which is the omission by his ancestor to make a certain devise, this equity is not one of construction, In Strickland v. Aldridge,^ Lord Eldon puts the case of an estate suffered to descend in consequence of a prom- ise by the heir that he would provide for the intended devisee. Several such cases have since occurred. These are all instances of fraud, and not of construction. However, the courts* decide that the heir is in such cases a trustee, by reason of his mala fides, though such a constructive trust is contrary to the pro- visions of the Statute of Frauds. So, if a father devises to his youngest son, by reason of the latter promising that he will pay £10,000 to the eldest son, this fact may be proved by parol, and the youngest son will be decreed to be a trustee accord- ingly.* In all such cases, the party charged can be compelled to discover whether he made this alleged promise. If denied, it may be proved by parol aliunde? [Any relevant parol evidence is admissible, if the question is one of fraud, undue influence, or devisavit vel non.*' The statutes of wills do not, more than the Statute of Frauds, say that all written wills shall bind, but only that unwritten wills shall not bind. Therefore, parol tes"timony to defeat a will or a part thereof, on the ground of fraud, undue influence, or ille- gality of any kind is not forbidden by the "Will's Acts. [The admission of parol evidence to prove that a will was executed under the influence of fraud, is neither technically nor substantially a violation of the statutes of wills. For, a fraud- ulent act is in law as if it never was done. It is wholly void, and a mere nonentity.' Every kind of undue influence » 9 Ves. 516. ° 1 Jarm. 357. ' Colgate D. Owing'a Case, 1 Bland, 397 ; Guallaher ®. Guallaher, 5 Watts, 200; Oldham o. Litchford, 2 Vem. 506. * Hughes v. Hughes, 31 Ala. 519; Beaubien «. Cicotte, 12 Mich. 459; Noble «. Enos, 1 9 Ind. 72 ; Fairchild «. Bascomb, 35 Vt. 898. ' Davis ». Calvert, 5 Gill. & J. 269, 803. 19 282 GENEEAL CONCLUSIONS. is a species of fraud, and so is a direct abuse of a testator's con- fidence, by inducing him to believe slanders of intended objects of Lis bounty.* Parol evidence is admissible in snpport or rebuttal of such charges of fraud.' Such charges are ques- tions of fact, to be determined by a jury. They are, strictly considered, therefore, not questions of construction, but of pro- bate. However, as they afford unlimited facilities for the ad- duction of parol evidence, it is desirable that such eases should be discriminated from those where parol evidence is sought to be used, not for the purpose of invalidating a will or any dispo- sition therein, but, on the contrary, of effectuating it in some secondary sense of the terms used. [Mr. Justice Story considered that declarations made before and at the time of the execution of the ffiW are admissible as part of the res gesicB, but not if they were made so long after the will as not to form part of the transaction.' [The question how far declarations made by the testator after the making of the will are admissible to prove that it was extorted by fraud cannot be considered as settled in the United States. There are numerous authorities on both sides. Best, Ch. J., in Provis V. Reed,* said:. "If such evidence were ad- mitted, some witness would constantly be brought forward to set aside the most solemn instrument." This argument, however applies only to the weight, and not to the admissi- bility, ' of the evidence. Witnesses, surely, cannot be so easily adduced, in despite of the laws against perjury, to prove any- thing at random. If they could, all titles would have long since ceased to have any value. Yet the res gestae, even as to the making of a deed, have always been held to be open to parol. ' DietrJck «. Dietrick, 5 Serg. & E. 207; Nussear«. Arnold, 13 Serg. & E. 333 ; Patterson v. Patterson, 6 Id. S6. ' Collins «. Hope, 20 Ohio, 492. = Smith «. Fenner, 1 Q-allis, 170 ; Provis v. Eowe, 5 Bing. 435. See, however, aontra, Stevens v. Vancleve, 4 Wash. C. ,C. ,265; Means ®. Means, 5 Strobh. 167 ; Cawthom «. Haynes, 24 Mo. 236 ; Eoberts v. Trawick, 17 Ala. 55. See Eeel v. Eeel, 1 Hawks. 248, 268; Howell v. Barden, 3 Dev. 442. * 5 Bing. 435. . • See Pemberton v. Pemberton, 13 Yes. 301, GENERAL COITCLUSIONS. 283 [The New York Court of Appeals has decided in favor of admitting subsequent declarations of the testator, in Waterman V. Whitney.* If the question were one of a revocation of a good will, and not of fraud in procuring a void will, the dec- laration, of course, could not be admitted, except it were part of the res gestm of an actual revocation. The current of authorities is in favor of extending the inadmissibility of the evidence in question to cases of fraud, though the contrary view is also propped by authority. [In a question of fraud, indeed, there is, in point of princi- ple, no limit to the admission of relevant parol testimony,^ as such must relate to the res 'gestae. [Declarations respecting a past occurrence are generally not admissible in evidence, as they are mere unattested hearsay, when they are not part of the res gestw. But where the act is continuous for a long period, any declaration made during that interval is part of the res gestm.^ Declarations made by a tes- tator, that he was induced fraudulently to make a preceding will, appear therefore to be admissible, on the ground that the fraud or undue influence was one continuous act or influence dawn to the time of the declaration. While the will continued unrevoked, the res gestm, in such a case, may be considered as not complete. There is certainly a difficulty in admitting the declarations of the testator prior or subsequent to the making of the will. But this difficulty seems to be met by the considera- .tion stated.* The declaration may be received not as a revoca- tion, which it is not, but as a part of one continuous act, since the will does not operate prior to the death of the testator, and if fraud have been practiced on him, the instrum'ent is, in point of law, a nullity. [The value or weight, however,- of a declaration made after • 5 N. T. 157. ' See Hughes o. Hughes, 31 Ala. 519 ; Beaubien «. Cecotte, 12 Mich.. 459. .' Kew Milford v. Sherman, 31 Conn. 101; Marsh «, Davis,, 34 Venn. 363. * As to what acts are res gestm, see Haynes ». Rutter, 34 Pick. 343 ;, Rawspn «. Haigh, 2 Bing. 104 ; Mitchum «. State, 11 Geo. 615 ;. Bank of Woodstock ». Clarke, 35 Vt. 308. 284 GENERAL CONCLUSIONS. the execution of a will is almost nil as regards the evidence of the circumstances under which the instrtiment was made, since, if the testator really wished to revoke, there was nothing to prevent him from doing so. But the evidence seems admissible in point of principle, although the question is one of great diffi- culty.' Such an ex post facto declaration was admitted in evi- dence in Taylor v. Kelly.* It can iiardly be necessary to state here, that when parol evidence is admitted to invalidate a will, simifer evidence is equally admissible to establish and confirm it. So with respect to such resulting ' trusts as can be rebut- ted by parol ; they may also be corroborated by parol. [In questions of fraud, then, declarations of the testator have been wholly rejected in several cases.' In some instances, however, declarations made long subsequent, or prior, to the will have been admitted,' -while in many other cases cotempo- raneouB declarations alone, on the ground of being part of the res gestae, have been admitted.* In point of principle, all dec- larations made by a person suspected of having been unduly influenced, are evidence on that point ; nor are they hearsay, since they are not tendered as evidence of the testator for or against himself, but as facts by means of which the jury may be aided in their estimate of the free agency of the testator, just as the sayings of a person of weak mind prove neither the truth nor falsity of what is thus spoken, but only his capacity. When, then, the fact of a declaration is sworn to, how is the evidence of the nature of hearsay, since the truth or falsity of the declaration is not necessarily put in issue. Indeed, an un- usual exclamation of endearment might be stronger proof of undue influence than a declaration of the testator that he was conscious he was about being imposed upon. For, influence, when really undue, and especially fraud, imply that the vic- ' 31 Ala. 59 ; Blakey v. Blakey, 33 Ala. 611. ' Stevens ». Vancleve, 4 Wash. C. C. 265 ; Comstock d. Hadlyme, 8 Conn. 254 ; Jackson «. Kniffen, 3 Johns. 31. ' O'Neill V. Murray, 4 Brad. Sur. 311; Roberts «. Tra-wick, 17 Ala. 55. See Cawthorn v. Haynes, 24 Mo. 236 ; Denison's App. 29 Conn. 399 ; Mc- Nincb v. Ch,arles, 2 Pich. 229. * See Waterman v. WMtney, 5 N. Y. 157 ; Boylan v. Meeker, 4 Dutcher, 274. GENERAL CONCLUSIONS. 285 tim is unconscious of the imposition thus practiced upon him. Even if the truth or falsehood of the testator's declarations be deemed to be put in issue, yet such statement of an act which is only inchoate until his death seems, as already stated, to be part of the res geMcB. In Thomas v. Thomas,* indeed, the gift in question was held to be Toid, rather than to be explained by parol evidence of declarations of the testator not simultaneo\i9 ■with the making of the will. But this case is now virtually overruled, being met by the array of authorities already cited on the opposite side. The later cases, even in England, are thus in favor of admitting the testator's declarations, no matter when they were made.^ [As to the admissibility of evidence of declarations made by a testator after making his will, to prove that he had never made it, see Boylan v. Meeker.* [In Ryers v. Wheeler,* it was held that declarations made at the time of the will could not be received, although if made at aay other time they would be admissible. This decision would almost seem to be founded on a supposed analogy between the construction of a will, and the doctrine that a written contract cannot be explained, but may be subsequently waived by parol. There is, however, of course, no real analogy between such a case and tlie construction, as distinguished from the revocation, of a will, or the ademption of a legacy.* It is clear, then, that parol evidence may be used to defeat a will as well as to apply it under Propositions Three, Five and Seven. 213. n. That tlie legitimate purposes to wMcli — ^in succession — such evidence is applicable, are two : name- ly, first, to determine whether the words of the will, with reference to the facts, admit of being construed in their primary sense ; and, secondly, if the facts of the ' 6 Durn. & East, 671. , ' Deo d. V. Allen, 12 Ad. & Ellis, 451. See 1 Jarman, 408, -where the dictum in Thomas v. Thomas, 6 T. B. 677, is said to be overruled. = 4 Butcher, 274. * Wadsworth v. Ruggles, 6 Pick. 63 ; Ayres ». Weed, 16 Conn. 291, 30 ; see Brown ». Saltonstall, 3 Met, 423. ' 32 Wendell, 148. 286 GENEKAIi OOKCLUSIONS. case exclude the primary meaning of the words, to de- termine whether the intention of the testator is certain in any other sense, of which the words, with reference to the facts, are capahle. — ^And, 214. ni. That intention cannot be averred in sup- port of a will, except in the special cases which are stated xmder the Seventh Proposition. 215. The writer of this Examination, then, whilst he admits and insists upon the rule stated in an early page,^ " That the judgment of a Court, in expounding a will, should be simply decla/ratory of what is in the instrument," hopes that he may, in this place, without fear of correction, add that — consistently vsdth that rule — I. Every claimant under a will has a right to require that a Court of construction, in the execution of its officej shall — by means of extrinsic evidence — place itself in the situation of the testator, the meaning of whose lan- guage it is called upon to declare.^ And that, n. The only cases in which evidence to prove inten- tion is admissible, are those in which the description in the will is vm.ambiguous in its application to each of several subjects. ' Supra, pi. 5. ' Supra, pi. 26. APPENDIX. No. I. Goblet -y. Beecht.' "Joseph Nollekens, the scufptor, made his will, and fourteen codicils thereto. By his will, dated the 21st of March, 1818, after giving several pecuniary, and some specific legacies, he gave to Sebas- tian Gahagan, Alexander Goblet (the plaintiff), and George Lupton, described as three of his workmen, £100 each, to be paid as soon as convenient after his death ; and to George Gahagan, another of his workmen, £20, to be paid in like man- ner; and to Louisa Goblet, a daughter of the plaintiif, £30. The will then proceeded as follows : — " I desire my collection of vlrtn in antiques, marbles, busts, models, printed books, prints, and drawing (except such books and prints as 1 have hereinbefore given), be sold by public auction ; and that the said Alexander Goblet be employed to arrange, repair, and clean my said marbles, busts, and models, to fit them for sale under the direction of my said executors ; and that the said Alexander Goblet be paid for his trouble, at the rate of one guinea a day, during such time as he shall be engaged, and which I suppose will be effected in three or four days : and I desire that my said antiques, marbles, busts, and models, books, prints, and drawings, be sold by Mr. Christie, of Fall Mall. I give to Francis Douce, Esq., and to the Eev. Edward Ballme, the executors of this my will, the sum of £500 each, as an ac- knowledgment for their trouble." In a subsequent part of the will was the following passage : — " And as to my property in ' See S. C, 3 Sim. 24. 288 APPENDIX. the funds, in the Bank of England, the moneys to arise by tlie sales hereinbefore directed, the debts that shall be owing to me at my decease,,and all other the residue of my estate and effects whatsoever, I give the same to Mr. Francis Russell Palmer, of Cumberland Place, New Road, and the said Francis Douce, and the Rev. Edward Balme, equally to be divided between them ; and I appoint the said Francis Douce and the Rev. Ed- ward Balme, executors of this my will." By the 5th codicil, dated the 29th of January, 1819, the testator, after declaring that he had revoked the aforesaid residuary bequest, in lieu and stead thereof, gave and be- queathed the said property in the funds, in the Bank of Eng- land, the moneys to arise by thfe aforesaid sales, the debts that should be owing to him at his decease, and all other the resi- due of his estate and effects whatsoever, unto the said Francis Russell Palmer, the defendant Francis Douce, the Rev. Edward Balme, and the Rev. Thomas Kerrick, equally to be divided between them. By the 6th codicil, dated the 15th of April, 1819, the tes- tator revoked the legacy of £100 given by his will to the plaint- iff, and gave him, in lieu of siich legacy, an annuity of £30 for his life. The 8th codicil, dated the 7th of February, 1820, was as follows : — " Whereas, by a former memorandum, I had directed that the marble in the yards, and the working tool's in the study, should be equally divided, and one-half given to Mr. Alexander Goblet ; I do hereby revoke such former direction, and, instead thereof, do hereby will and direct that the whole of the said marble, and all the working tools in the study, be delivered by my executors to thp said Alexander Goblet, for his sole use and benefit, in consideration of his care and atten- tion to me. And whereas, in the aforesaid memorandum, I had directed my books, drawings, and prints, should be sold ' by auction, by Mr. King, 1 do hereby direct that they be sold by Mr. Evans, of Pall Mall. February 7, 1820. Joseph Nollekens." In the 9th codicil, the testator made mention of Henry Goblet, a son of the plaintiff. The 10th codicil, dated the 14th of August, 1820, and APPENDIX. 289 written immediately following the 9tli codicil, was as follows : — 'AH the working tools iu the shop I give to his father, with, the marble in the yard, and the boards and utensils for work- ing the jack I lent to Supto above, a year ago, he out to retern it, I have paid and for what. J. Nollekens, this 14:th day of August, 1820." The 11th codicil was in the testator's own handwriting, except the attestation thereof by the subscribing witness, Mary Holt, and was as follows : — " This 28th day of January, 1822. Memorandum, that, in case of my death, all the marble in the yard, the tools iu the shop, bankers, mod^ tools for carving, the rasp in the draw, with [nevre or nepre],^ and the draw in the parlor, shall be the property of Ales. Goblet. Joseph Nolle- kens. Witness my hand, Mary Holt." By the 13th codicil^ the testator appointed the defendants his executors. The testator died in April, 1823, and his will and codicils were proved by the above-named executors. The testator had certain models, whic^ his executors sold, and which produced the sum of £738 13s. The articles mentioned in the 11th codicil, except ttose intended by the word " mod," were of trifling value. By a decree of the Court, bearing date the 14th of Feb- ruary, 1824r, made in a cause in which Francis William Russell, in the sai'd will called Francis Eussell Palmer, the said Francis Douce, and Thomas Kerrick, were plaintiffs, ' In the original codicil, the word " mod" waa at the end of a line, and waa followed by a small mark, the purport of which appears to have been equivocal, the plain*!*? contended that the mark was the letter " S," and that the word or letters " mod/' with the mark, was an abbreviation of a complete word " models." It was contended, on the part of the defendants, that the mark was a hyphen, and that the words or letters " mod " was an integral part of an unfinished word ; or that the disputed mark was intended for the letter '• g," as mentioned in the an- swer of the defendant Douce. Much argument (as the writer is informed) pro- ceeded upon this distinction, when the cause was heard upon the exceptions to the Master's report. The witnesses in the cause, and Mr. Caley, who was called by the Master, do not appear to have determined what the mark was. Mr. Gar- rard, however, who was also called by the Master, appears to have considered and treated the mark as the letter " S." In the statement of the case in the above report, the word is called indiscriminately " mod." ' These words are almost illegible. 290 APPENDIX. and the said Sir William Beechey and John Thomas Smith, and others, were defendants, the usual accounts of the per- sonal estate of the testator, Joseph KoUekens, were directed to he taken. The plaintiff went in before the Master, under the decree in the cause of Kussell v. Beechey, and. under the 11th codicil, claimed the money produced by the sale of the models. The Master disallowed the claim. On the 29th of October, 1824, the plaintiff filed the bill in this cause against Sir William Beechey, Francis Douce, and John Thomas Smith, as defendants. The bill referred to the will of Joseph NoUekens, and stated the 11th codicil thereto. The bill then stated, that the defendants pretended that the word " mod." in the 11th codicil, was an abbreviation of, and was meant and intended for, the word '■ modelling," and was to be joined in construction with the following words " tools for carving;" and that the testator did not by his 11th codicil intend to bequeath to the plaintiff his models and tools for carving, but only his modelling tools for carving. The bill then charged that the intention of the testator was to bequeath to the plaintiff his models; and that the word "mod," in thfe 11th codicil, was an abbreviation of the word "models; " and that there was no sense in the alleged expression, " modelling tools' for carving," inasmuch as, in the art and practice of sculpt- ure, tools for carving were not used for modelling : and that there was no word, other than the word " models," which the word " mod," with reference to the contents of the will, and the nature of the testator's property and business, could be taken to denote or signify. The bill further charged, that the 11th codicil was in the hand-writing of the testator : and that, after the same was written by him, it was, at his desire, read over to him by Mary- Holt, the attesting witness thereto, in whose presence the same was written, and who was in the service or employment of the testator ; and that when, in so reading over the 11th codicil, she came to the sa!id abbreviation, she observed to the testator, that there was something imperfect or indistinct in such abbreviation, and asked him what he meant thereby ; to which the testator answered, that he meant models, or to that effect. APPENDIX. 291 The bill then prayed, that it might be declared, that, under the lltli codicil to the will of the testator, Joseph Nolleken^, bearing date the 28th day of Janua,ry,. 1822, the plaintiff be- came entitled to the said models ; and that the defendants. Sir William Beeehey, Francis Douce, and John Thomas Smith, might be decreed to pay the plaintiff the sum of £738 13s., with all interest which had become due for the same ; or to assign or deliver to the plaintiff the securities whereupon the same had been invested ; and to pay the plaintiff the interest or other proceeds which had arisen therefrom. The defendant, Douce, by his answer, inter alia, stated, that, amongst the estate arid effects of the testator, Joseph NoUekens, at the time of his death, were certain very valuable models of various descriptions, used, or intended to be used, if occasion required, for the purposes of and belonging to the busi- ness of a sculptor, but which models were, many of them, of themselves rare and valuable specimens of art, and, as such, very desirable and of great worth for the cabinets and collec- tions of persons of taste, and collectors of works of art of such nature and kind, and so esteemed by the testator himself. He further said, he believed that such models were occasionally, and when necessary or convenient, used by the testator in his lifetime for the purposes of sculpture, and in his study and practice of that art ; and were also kept and preserved by him as being, of themselves, intrinsically very rare and curious works of art, and of great value to all lovers of the fine arts, or of that particular branch thereof. The answer admitted the sale of the models, and the receipt by Douce and his two co-executors of the money produced by such sale, and that no part thereof had been paid to the plaintiff. The defendant, by his answer,- insisted, that, according to the true construction of the will and codicils, the plaintiff was not entitled to the models, and that the word " mod," in the 11th codicil, was incapable, either abstracted or by connection with other parts of that codicil, of being ap- plied to the models claimed by the plaintiff, or to any other models. The answer then insisted, that, from the context of the 292 APPENDIX. will and codicils, the testator meant to use the word "mod- elling," and that he omitted by mistake to repeat, or insert twice instead of once, the word " tools," in which case the expression would have been " modelling tools, tools for carv- ing ; " and which the defendant believed the testator intended to express, but which he failed to do, from being at that time under a paralytic affection. The answer further stated, that the testator, for some time before, and particularly about the month of, January, 1822, and from thence up to the time of his death, had great difficulty or thickness in his enunciation or manner of speaking, whereby it was frequently very difficult, if not impossible, to understand him distinctly or correctly when he spoke ; and that, if any communication, as in the bill mentioned, took place between the testator and Mary Holt respecting the 11th codicil (but which the answer did not admit), it was probable that Mary Holt might have misunderstood what the testator said, and that he might have attempted to pronounce in explanation the word "moulds," a great number of which were in his posses- sion, and were not by him specifically disposed of. The answer then insisted, that the 11th codicil must be con- strued by a reference to, and consideration of, the contents of the instrument, and of the will, and of the other codicils there- to ; and that the principle case was not one in which any evi- dence could be received of parol declarations of the testator as to what he meant. The other defendants, by their several answers, submitted the point in question to the judgment of the Court. Witnesses were examined on the part of the plaintiff. It was proved that the plaintiff had been in the service of the testator thirty years, and was held in great estimation by him. Charles Hossi, a sculptor, deposed, that there were not such tools as "modelling tools for carving," and that there was not any sense or meaning in such tools as " modelling tools for carving ; " that tools for carving were not used for modelling, except that, when the model was moulded and cast in plaster, carving tools were used, but that tools for modelling were not used for carving ; that tools for modelling were made of bone APPENDIX. . 293 and wood, and sometinies of steel, and sometimes of brass ; and that tools for carving were made of steel. The same witness deposed, that in his opinion any sculptor would, by the word " mod," as i;sed in the 11th codicil, under- stand that the testator meant " models ; " and that he, the deponent, was of that opinion ; and that having regard to the language of the 11th codicil, and to the nature of the business and description of utensils and specific articles belonging to the testator as a sculptor, there was not, in the deponent's opinion, more than one thing that the word " mod," as used in the 11th codicil, could signify, and that was " models." Peter Eouw and Edward Hodges Bailey, both sculptors, gave evidence to the same efiect as Charles Eossi. Mary Holt deposed, that she was in the service of the testator from March, 1802, to January, 1807, when she mar- ried, and again from the month of August, 1820, when her husband died, up to the testator's death, she having returned to him at his particular desire, to attend on him in his in- firmity. ^ She then deposed, that one day, in the m.onth of January, 1821, or 1822 (but which of those years she did not then recol- lect), and, on the occasion of the witness going into the room in which the testator was sitting in his dwelling-house in Mor- timer-street, he being then alone, with the 11th codicil before him (and which appeared to have been just written), asked her to witness the same, upon which she asked his permission to read it ; and the testator having assented to the witness's request, she did read it aloud to, and in the hearing of, the testator; and the testator heard the same when read over ; and she so read it immediately previous to her signing the 'same as a witness thereto. She further deposed, that, at the time of reading the 11th codicil to the testator, and when she had read as far as the word " bankers," she asked the testator what he meant by the word " mod," being the word nextfoUowing the word " bankers," in the 11th codicil ; and that, in answer thereto, the testator pronounced the word " models ; " and that she then asked the testator whether he meant Goblet (meaning the plaintiff in the cause) to have the models : and that, in answer thereto, the 294 • APPEKDIX. testator said " yes ; " and that she then said " bravo," thereby meaning to express her satisfaction at the testator intending that the plaintiff should have the models alluded to by the tes- tator ; and that the testator then folded the 11th codicil up, and put the same into his pocket-book. The cause came on to be heard in Trinity Term, 1826. Mr. Shadwell and Mr. Sidebottom for the plaintiff. Mr. Sugden, Mr. Joseph Martin, and Mr. Jacob for the de- fendants. The cases cited were. Hunt ?;. Hort, 3 Bro. C. C. 311 Price V. Page, 4 Yes. 680; Abbot v. Massie, 3 Ves. 148 Mohun V. Mohun, 1 Swans. 201 ; Andrews v. Dobson, 1 Cox, 425 ; Parsons v. Parsons, 1 Yes. jun. 266 ; Bay lis v. The At tprney-General, 2 Atk. 239 ; Edge v. Salisbury, Amb. 70 Ulrich V. Litchfield, 2 Atk. 372; Dowset ■«. Sweet, Amb. 175 Careless v. Careless, 1 Mer. S84 ; s. o. 19 Yes. 601 ; Masters v. Masters, 1 P. Wms. 421 ; Norman v. Morrell, 4 Yes. 769 Kelly V. Powlett, Amb. 605 ; Brown v. Selwin, Ca. tem. Tal, 240 ; Fonnereau v. Poyntz, 1 Bro. C. C. 472. The Yice-Chancellor (Sir John Leach) said, that the case was not then ripe for decision, as it did not clearly appear what the letters were which formed the word " mod." He added, that he found no authority which exactly governed the case ; but that, upon principle, he was satisfied, that, to admit the evidence of Mary Holt respecting the testator's declarations, would be to repeal the Statute of Frauds. He, therefore, rejected lier evidence ; and, upon hearing the codicil to the wiir of the testator, dated the 28th January, 1822, and the proofs taken in the cause, except the depositions of Mary Holt, read, he ordered, that it be referred: to the Master, to inquire and state to the Court, what the testator intended by the word between the word " bankers " and the word " tools," and the two words between the words " with " and '' and," in the cod- icil to his will dated the 28th of January, 1822. And the Master was to be at liberty to call to his assistance persons skilled in the art of writing, and also persons who had a com- petent knowledge of, tools and articles used in statuary. * And it was ordered that the consideration of all further directions, and of the costs of the suit, be reserved until after the Master APPENBIX. 295 sliould have made his report. And any of the parties were to be at liberty to apply as there should be occasion. Eeg. Lib. A. 1825, fol. 1846. The Master, by his Report, bearing date the 23d of June, 1827, certified, that he had been attended by the solicitors for the respective parties, plaintiff and defendants, and, in their presence, had proceeded to make the inquiry directed by the decree. And a state of facts had been laid before him on the part of the plaintiff, and another state of facts on the part of the defendant Douce, and the probate of the will and codicils of the testator, and, the original codicil of the 28th January, 1822, and office copies of the depositions of witnesses examined on the part of the plaintiff in the cause (except such parts thereof as were held by the Court to be inadmissible) had been produced and read before him : and.he found thereby that the testator, Joseph Nollekens, was an excellent sculptor, resident in Mortimer Street, Cavendish Square; and that, about the year 1791, having occasion for an assistant in his business, he wrote to Mr. Clarisseau, an architect, resident in Paris, to rec- ommend him a young Franchman as a carver; and, in con- sequence thereof, the plaintiff, who was then in the employ of the sculptor to the King of France (Louis XVL), was sent over by the^said Mr. Clarisseau to this country, to the testator, into his employ or service. And he further found that the plaint- iff continued from that period, that is, in the year 1791, in the employ or service of the testator, until the testator's death, which happened on the 23rd of April, 1823, and during that period was employed by the testator on many of his best works, chiefly as a carver, but frequently as a modeller, and acquired the esteem and confidence of the testator in a very great degree, insomuch, that for years previous to the testator's death, the plaintiff almost wholly resided in the testator's house wi^i him, on a footing of great trust and confidence. And he further found, that, fo» some considerable time previous to his death, the testator was seized with a paralytic affection in his limbs, which deprived him of the use of his limbs, and confined him to the house ; and that during the latter period, the plaintiff' superintended the business of the testator, and gave great and unremitted attention to the same. 296 APPENDIX. The Master, by his Keport, further found, that the " bankers" mentioned in the 11th codicil, were solid pieces of wood, in which were placed blocks of marble when about to be worked ; and that the bankers belonging to the testator, and also his tools for carving, and the rasp mentioned in the 11th codicil, were all matters of small and trifling value ; but the models belonging to the testator, at the respective times of making his llth codicil and of his death, were of great value, (that is to say), of the value of £700 and upwards. The Master further stated, that he had availed himself of the liberty given by the decree, of calling to his assistance Mr. John Caley, a person skilled in, the art of writing, and also that of Mr. Charles Garrard, of Brompton, sculptor and statuary, a person of competent knowledge of the tools and articles used in statuary : and that the said Mr. Caley, having examined the original codicil of the 2Sth of January, 1822, had made a transcript thereof, according to his judgment of the characters, a true copy of which was set forth in the first schedule to his report ; and that the said Mr. Caley had per- sonally attended the Master, and declared he could form no judgment of what was intended by the word " mod." And the Master further stated, that the said Mr. Garrard liad also examined the said original codicil of the 28tli of January, 1822, and had made a report, not only as to the word " mod," which he understood to be a contraction of the word " models," but as to the other two words, respecting which he was directed by the decree to inquire, and as to the proper reading of the codicil at large ; and doubts having arisen as to the things intended by the word " models," supposing that to be the true reading of the contraction, the said Mr. Garrard had further, at the Master's request, explained the technical meaning of the word "models," as he, from his knowledge of sculpture and statuary, understood the same ; and the Master set forth a copy of Mr. Garrard's report, in the secon4 schedule to his (the Master's) ► report. The "Master then certified, as the opinion which he had formed, with such assistance as aforesaid, that the word in- tended by the testator by the word or contraction between the word "bankers" and the word "tools" Was "models;" and that the things intended by him thereby were such articles as APPBKDIX. 297 were described by Mr. Garrard in his report to fall within the meaning of that term in its ordinary uses by sculptors. And he was further of opinion, that, by the two words between the words " draw " and " and " in the 11th codicil, the testator intended " with the apron," according to the reading or inter- pretation of Mr. Garrard, which appeared to him satisfactory, for the reasons assigned by Mr. Garrard in his report. Mr. Garrard, by his report, which was referred to by the Master, after explaining the, word "bankers," in the 11th codicil, to mean certain massive heavy benches used for the purpose of carving blocks of marble upon, added, that the first and only construction he could put upon the contracted word "mod*," or upon the testator's intention when writing that word, was, that it meant " models ;" that the testator intended to write models, and meant what he had written to be taken for and understood to be models, that is (according to the idea a sculptor annexes to the term), original material representa- tions of forms, either existing in nature, or ideal. The rest of Mr. Garrard's report related to the interpreta- tion of parts of the codicil subsequent to the word " mod." ' The defendant Douce excepted to the Master's report, on the ground that he ought to have stated and certified by his report, that he had been unable to discover or ascertain in any manner, and therefore could not state to the Court, what was intended by the testator by the word between the word " bank- ers " and the word " tools." The cause came on to be heard in the matter of the excep- tion, and on 'further directions, in Hilary Term, 1829, before the Vice-Chancellor ( Sir Lancelot Shadwell), when his Honor overruled the exception — confirmed the Master's report — and declared that the plaintiff was entitled to the models, or the money produced by the sale of them ; and ordered that the same, together with the costs of all parties, should be paid out of the testator's estate.— ^ep'. Lib. A. 1828, /. Everett 386 Evers v. Challis 141 F. Fagan v. Jones 333 Farwell v. Jacobs 223, 397 Fay ®. Cheney. 71, 72 V. Fay 76, 89 Felton «. Sawyer 141 Fenwick v. Chapman 33, 242 V. Ma«ey 182 Ferguson v. Zepp 59, 79 Perril v. Talbot 808 Ferris B. Smith 78 Ferson v. Dodge 255, 257, 260 AMERICAN CASES CITED. XVU Petrom's Estate 140 Field V. MoBtyn 366 Finch ». Houghton 367 Findlay ». Riddle 96, 104 Finlay v. King. 30, 31, 35, 272 Fisher v. Hill 205 •0. Taylor 391 Fish's Estate 345 Fisk v. Cushman 70 «. Keene 143 Fitch 0. Peckham 364 Flandears ». Lamphear 385 Florey «. Florey 55 Fogg «. Clark 61, 78 Foote App '. . . .38, 237, 244 Exp 340 Ford V. Ford •. 361 Fpsdick V. Fosdick 388 Foster v. Kerr 386 Fountain v. Ravenel 431 Fowler b. Depau. . .110, 193, 204 377, 386 Fox V. Phelps 79, 81, 83, 89, 370 Frazier «. Frazier. 348 Freeborn v. Wagner. 102 Freedley's App 183 Freeman v. Flood 386 Fuller V. Winthrop 258 a. Yates.... 76 Fumess v. Fox 262 G. Gage «. Gage ' Gaines «. Rolt 2 Gallego V. Att'y-Qen 896, 403 V. Gallego 356 Gamble v. Dabney 314, 217 Gardner ®. Gardner. 341, 342 V. Wagner 31, 65 Garnet «. Macon 338 Garrison s. Ebom 70 Gass *. Ross •is «. Wilhite 402, 410, 413 Gates V. Jacob 182 Gerard Will Case • 403 Gerken's Estate 338 Germond v.. Jones , 310 Gemet v. Lynn 104, 105 Gibbons «. Hill 883 Gibson «. Horton 80 B.M'Call 413 GiddingB v. Snmth 117 Gifford V. Dyer 57 V. Thorn 360 Gilbert v. Chapin, 215, 217, 220, 321 Gilbreath ®. Winter 883 Gillian u. Underwood 304 Gilman «. Hamilton 405, 410 Gilmer v. Gilmer, 386, 831, 368, 408 Gleason v.. Fayerweather 376 Godfrey c Humphry 60, 77 Going V. Emery .409, 411 Gold v. Judson 17 Goodall D.McLean 204 Goode V. Goode 43 Goodrich «. Lambert 94 Gore V. Stevens 74 Gray «. Blanchard 377 ». McDowell, 338, 239 Grayhead «. Given 422 Greenenough n. Wells 210 Greer v. Dennis 432 Greere v. Davis 408 Gridley v. Gridley 242, 270 Griffin V. Graham 395, 401 Grim v. Dyar 41 Griswold ®. Greer 124 GuthriesApp 102, 104 Hacker «. Newborn 54 Hall «. Dickinson ..., 78 ®. Tufts' , 274 V. WooUer 297 Hallett V. Pope ...., 119 Hallowell v. Phipps ...'. 310, 833 Hamilton v. Bi^op 387 B. Boyles 41 «. Henstead 117 Hamlin «. Osgood.... 307 xvm TABLE OP CASES. Hammersley ». Smith 391 Hammond «. Ridgley 48, 372 Hand v. Hoffiuan . 49 Hanaell «. Hubbell Ill Hapgood V. Houghton 250 Hardy v. Redman 88 Harper i>. Blean 68 e. Phelps 372 Harrington v. Bradford 4 V. Hughes 351 Harris v. Clark 156 B. Finch 343 «. Ply 238,241, 259 11. Heame 270 Harrison «. Morton 55 V. Nixon 10, 31 Hart V. Hart 223, 897 V. Marks 74 HaskiBB V. Tate 289 Hawes v. Humphrey 15 V. Sackett 249, 253 Hawes Place Soc.. v. Hawes Fund 186, 217 Hawkins v. Everett 265, 295 Hawley v. James 155, 156, 233,243,246, 386 V. Northanipton.38, 111, 141, 279 Hawn V. Banks 297 Haxton «. Corse 158, 386, 389 Hayden v. Stoughton 28, 422 Heard i>. Horton 81, 301 r. Sill 186 Heath v. Knapp 227 Hedges v. Biker 210 Henry v. Gorterman 81 Hester «. Hester • 186 Hildyardi). Miller 389 Hill v. Bowman 46 Hodgson v. Gemmil 258 Hoke ». Herman 361, 362 Holland v. Peck 409 HoUins «. Coonan 39 Holman v. Perry 13 Holme V. Low 141 Holmes d. Field 282 Homer v. Shelton 151 Hone V. Kent 73 «. Van Schaik . . 129, 296, 811 Hood 1). Archer 14 Hoopes «. Dundas 283 Horwitz V. N orris 245 Howland v. Union Theo. Sem. 6, 53 Hoyland v. Schenck's Estate . . . 343 Hubbell V. Hubbell 354 Hughes V. Boyd 282, 283 V. Knowlton 315 ®. Dehon 233, 234 Hull D.Hull 416 Hume V. Wood 238, 354 Hunnier v. Rogers 241 Hunt 11. Hunt 60 Hunter v. Bryant 251 v. Hunter 29, 83, 234 Hurdle v. Outlaw . ' 61 Hyatt V. Pugsley 30, 421 L Ide«. Ide 24, 141, 143 Ingersoll ii. Knowlton 103 Inglis V. Trustees of the Sailors' Snug Harbour 23 Irving V. De Kay 386 Isham B.^Cibbons 11 J. Jackman n. Tates 71 Jackson v. Babcock 5, 81 uBuU 79, 83 e. Burr 78, 210 ■». Chew 87 V. Coleman 89 V. Delany 60, 187 V. Hammond 413 V. Hansel 61 W.Harris 81 V. Housel 83 D.Martin 79, 81 «. Merrill 79 11. Merger 65, 66 «. Roberts 431 11. Robins 89 AMEEIOAN OASES CITED. XIX Jackson «. Schurtz 276 v.Sm 43 «. Staats 323 «. Varick 20 V. Waldron 30 v. Winnie 364 James «. James 74, 849 Janey v. Latane 47 Jarvis v. Prentice 386 ®. Quigley 104 Jenkins v. Fryer 389 Johnson v. Farrell 868 9. Jolinson 75, 117 Jones V. Creveling 352 V. Jones 386 K. Kane v. Aster 6, 30, 254 ». Gott 155 Keith D.Perry 38 Kelley «. Kelley 49, 369 Kellogg V. Blair 60 Kempton App 245 Kennedy's App 194 Kerr d. Hosier 258 Kihler «. Whitman 261 Killam v. Allen 184, 386 Kilpatrick v. Johnson 295 King V. Ackerman 88 V. Merchants' Exchange Co 184 B. Eundell 386 n. Woodhul] 155, 844 Kingsland v. Betts 211 ®. Rapelye 24, 307 Kinne v. Kinne 14 Kinter -b. Jenks .84, 237 Kip V. Kip 30, 31, 33 D. Van Cortland 347 Knight V. Knight 296 V. Weatherwise 6 Knollys v. Shepherd 64 Knott I'. Cotete 221 Kom V. Cutler 60 L. Ladd V. Harvey 138 Lambert e. Paine 34, 88 Lane v. Lane 259 ®. Vick 33, 30 Lang D. Rofke 184 Langdon v. Aster 4, 6 Larke v. Mann 340 Lasher v. Lasher 29 Lawrence v. Hebbard 395, 311 V. Lawrence 338 Learned e. Tallmadge 308 Leary's Estate 406 Leaver v. Lewis 348 Leddel ». Starr 345 Leith, ex p 334 ieland v. Adams 335 Leonard v. White 64 Lewis V. Smith 78, 346 V. Thornton 338 Lide V. Lide 54 LifiFen v. Eldred 83 Lillard ». Reynolds 369 Lilliebridge v. Addie 88, 112 Lilly V. Curry 368 Lindsay v. McCormack 77 Lippett V. Hopkins 84 Lithgew «. Havenagh 79 Livingston v. Livingston 356- Livingstone v. Newkirk 235 Lone V. Williamson 15 Lerillard «. Coster 37, 155, 811 Loring v. Blake 377 V. Loring 345 Lovering v. Minot 152 Lovett V. Gillender 258 «. Kingsland 53 Lucas V. Lockhart 217 Ludlam's Estate 331, 337 Lupton V. Lupton 23^, 240 Lush V. Druse 43 Lydnor ■». Lydnor 323 Lyles V. Digge 103 Lyman v. Parsons 268 e. Vanderepiegel 419 XX TABLE OF CASES. Lynch v. Hill 41 Lyon D. Acker 24, 297, 325 M. Maddox ». Maddox 273, 283 Mahar v. O'Hara 338 Malcolm v. Malcolm 40 Malone v. Mooring 331 Manderson v. Lukens 140 Manice v. Manice 381, 385 Mann v. Mann 53, 70, 157 Mapes V. Tyler '. 210 Marsh v. Hague 261 «. Wheeler 30 Marshall v. Downing 395 Martha May's App 424 Martindale v. Martindale 29 Mason v. Jones 37 D.White 312 Maxwell v. Means 384 Mayrant v. Davis 338 Mayzcker ». Mayzcker 119 McAfee •». Gilmore 78 McAuley d. Wilson 402, 409, 410 McBride v. Elmer 47 McCormick ex p 11 McCampbell v. McCampbeU. . . . 355 McCullock ». McLain 242 McDermott i>. IJnited States Ins. Co 45 McDonough v. Murdock. 32, 403 McDowell V. Lauless 355 McPeely ti. Moore 102 McG-ill's App 258 McGinn v. Aaron 411 Mcllvain i). Githin 281 McKay «. Green 333 McKee v. McKinlay 78, 104 McKenzie v. Jones 78 McLailghlin, Matter of. 310 McLellan v. Kennedy 13 McMahon v. Eyan 54 McNaughton ». McNaughton. . . 362 McWihiams «. Nisley 376, 391 Meakings v. Cromwell 15S Meek v. Holtom 87 Merritt «. Brantley 81 Merrjmaans v. Merrymans. .313, 316 Meyers v. Eddie 34 ®. Meyers 293 Miles «. Boyden 313, 313 Miller «. Chittenden 140 Miller's App 333 Minor v. Dabney 339 Minot ®. Boston Asylum 47 V. Prescott 311 Moakly v, Riggs 273 Moflfat V. Strong. 94, 151, 385 Moggridge V, Thackwell 412 Monroe ®. Douglas 105 Moody «. Walker 137, 151 Mooltrie v. Hunt 11 Moon V. Stone 358 Moore v. Budd 12 V. Howe 119 D.Lyons 193, 198 V. Moore 369, 377 Morancy «. Quarles 243 MorreU v. Dickey 39 «. Emery 5 V. Sutton 371 Morris, Estate of. 30 V. Henderson 348 Morrison v. Semple 61 «. Temple 60 Morse v. Mason 396 Morton v. Barrett 330 V. Morton 344 ®. Perry 70 Mountain «. Bennett 54 Mowatt V. Carow 296 Muller, Estate jof. 29 Murdock v. Shackleford 112 Murphy v. Harvey 298, 325 Musselman's Estate 78 N. Nagle's App 78, 104 Nelson v, Moore 205 Newkirk v. Newkirk . .374, 377, 276 Newton v. Griffith 76, 117 AMBKIOAIf CASES CITED. XXI •Mcliols v. Romaine 41 Nightingale v. Burrell Ill V. Sheldon 420 Norris V. Boyes 384 B. Byea 130,204,269 V. Thompson 334 Nussea c. Arnold 54 0. Oddie v. Woodford 33 O'Hara v. Sullivan 246 Okeson'B App 238 Olmstead v. Olmstead 78, 252 Olney d. Hull 140 O'NeU B. Murray 55 O'Riley v. Nicholson 253 Orphan Asylum v. McCarter . . . 396 Osborne v. Shrieve 106 Osgood «. Franklin 159 V. Livering 247 Otis ». Smith 64 Dwens v. Miss. Soc of M. E. Church 395, 407, 408 Oxley V. Lane 33 P. Page «. Wright.! 86 Painter ». Painter 249 Parish v. Parish 78 Parker ■». Parker 77, 145 Parkman ®. Bowdoin 313 Parks V. Parks 40 Parsons v. Lynam 11 V. Snook 253 ®. Winslow 381,400 Passmore's App 197 Patterson ». Doe 103 «. Devlin 142 «. Ems..83, 130, 151, 262, 384 B. McMasters 304 Pattison «. Pattisoti 361 Payne v. Sale 102 Payton «. Smith 76 iii • Peay «. Barber 349 Peck V. Henderson 210 Penniman «. French. . . , . , 69 Pennock's Estate, Be 372 Pennoyer v. Sheridan 31 People V. Conklin 400 Peppin v. Ellison. , 69 Perkins v. Jewett 64 Pemie v. Purdy 204 Peter ». Beverley 210 Phelps ». Phelps 257 Philadelphia, City of, v. Davis. . 304 • «. Elliott 412 Phyfe «. Phyfe 314 Physick's App 78 Pickering v. Pickering 238 Pierce ». Hakes 140 «. Win 276 Pike «. Stephenson 258 Pinckney v. Pinckney 251 Pinney v. Fancher 264, 344 Pippin V. Ellison 83 Plemptor «. Plemptor 140 Polk V. Paris 102 Pollard V. Dwight 23 v. Pollard ,. 343 Pond V. Bergh 37, 41 Porter's App 398 Portsmouth o. Shackford 307 Post V. Hover 53, 416 ■B. Post 34 Potter V. Gardner 243 «. Titcomb... 11 Pratt «. riamen 315 •o. Rice 39 Pray v. Belt 52, 268 Prescott «. Prescott 17, 104, 422 Prewett «. Land 186, 314, 217 Price «. Brown 8 V. Maxwell. .401, 402, 408, 412 Prowett V. Rodman 323 Pryor ®. Dunkle 137 Putnam v. GHeeson 140 Q. Quillman 11. Custer 78 Quincy ». Rogers 6 xxu TABLE OF OASES. B. Rapelye ■». Rapelye 343 Bathbone v. Dyckman 30, 81 Bay V. Bnslin 38 Reed^D. Beed 89, 315, 333 ®. Underbill 159 Benwize «. Cooper 71 Reyaolds v. Beynolds 341 V. Swan 3 Bhoads v. Ehoads 387 Bichardson 0. Wheatland 303 Eichmond v. Vanhoof 70, 71 Bicks ®. Williams 303, 304 Bidgeley «. Bond 348 Boberts' App 358 Eoberts ». Kuffln .70 v.- Ogboume 78 Bobertson v. Jolinson 39 Bobinson «. Schley 37 Bogers v.- Smith 64 Eoman Catholic German Church of Albany d. Wachter 338 Boman Cath. Orph. As. ». Em- mons 43 Roome v. Phillips 358 Boosevelt ii. Heirs of Fulton .... 78 V. Thurman 38 Boss V. Toms 117 V. Tremaine 373 Eothmaler ®. Myers ... .43, 307, 370 Routh V. Ammerman 71 Roy V. Garnet 103 Ruffert's Estate 345 Runnels v. Runnels 370 Russell'^. Blden 77 Ruston ». Buston 23 S. Sackett v. Mallory 137 St. Armour i>. Eivard 385 St. Louis Hosp. As 47 Salmon ». Stuyvesant 9 Sands v. Champlin 81 ®. Chaplin 341 Sargeant «. Towne 76, 77 Saunders v. Hyatt 116 Savage ». Bumham. ........ 155, 346 Schermerhom v. Barhydt 33 ». Schermerhom. 90 Schettler v. Smith 345, 385 Schoonmaker v. Stockton. . . .79, 105 Schryer's Estate 345 Scott«.Morell 310 Seabury ». Brewer 325 Seaver v. Lewis 28 Shackleford v. Hall 383 Sharon v. Simons 186, 317 Sharpsteen v. Tillon 361 Shearman v. Angel . .- 315; 414 Sheridan House 103 Sherman «. Sherman 8 Sherry ». Lozier 33 SholU. Shell 338 Shotwell V. Mott 401 Shriver v. Lynn 86 Shutt V. Bainbow 78 SimmondsB. Simmonds 6, 376 Simmons v. Garrot 399 Simpson v. Moore 340 Simeon ®. Smith 313 Sisson «. Seabury 105 Slocum 41. Slocum 156 Small b: Small *. . 54 Smiley v. Bailey 188 Smith V. AshuTst . . .-; 297 ». Bell 30,31, 107, 338 V. Clerk ~ 390 1). Dunwoody 67 «. Edrington 17 V. Hastings 93 V. Jewett 70 v. Jones 30, 361 V. Kearney 158 B. Lampton 338 V. Post , 83 V. Poyas 77 1). Smith 43,47, 374 V. Wyckoff 43, 343 Trustees of 265 Smith's App 134, 151, 311 Case . ..'. 311 Smithwick v. Jordan 19 AMERIOAK OASES CITED. XXlll Sorelle v. Sorelle 364 Sparks v. Weedon 337 Stanley «. Colt 31 Stark ». Smiley 268 State «. Hallett 13 «'. NicoUs 33 V. Walter 403 V. Watbank 403 Steel V. Cook 61, 103 Steiner v. KoU 78 Stephens v. Evans 141 Stevens v. Ely 160 V. SneUing 43 Stevenson v. Schriver 386 Stewart, Matter of 14 ©.Brady 376 V. Chambers 41, 344 «. G-amett 83, 89 ©. Lispenard 14 Stickle's App 89 Stires v. Van Rensselaer 395, 296 Stockes «. Tilly 89 Stockton V. Turner 274 Storer v. Bemdt 297, 398 «. Wheatly 820 Storing V. Borren 253 Stowe B. Ward . .. 301 Stower V. Stower 103 Stubbs ». Sargon 397 Stultz D. Keser 71 SuUivan v. Mara 363 Sutton «. Cole 46 Swain v. Eoscoe 96, 107 Swett V. City of Boston 71, 73 Sweet «. Chase 39, 259, 368 V. Geisenheimer. . . .39, 30, 338 S woope's App 356 T. Taft V. Morse 343, 344 Tanner v. Livingston 81 Taylor «. Benham 310 V. Kelley 37 V. Lanier. . , 365 B.Mason 371,374, 384 V. Morris 211 Taylor v. Richardson 400 Telfair «. Home 47 Temple v. Nilson 269 Terpenning v. Skinner 53 Theo. Bern. ■». Childs 394 Trustees of, v. Kellogg 89 Thomason v. Andersons. 116 Thompson v. Carmichael 870 ». Macdonald 414 ®. McKisick 3, 73 V. Thompson 333, 354 Thomson v. Livingston 8, 385 Tift V. Porter 888 Tillinghast ®. Cook 336 Timothy v. Camp 376 Tinsley v. Jones 116 Tissel's App 834 Tobias v. Ketchum 25,8 Tomlinson v. TomUnson 6 Tongue ». Nutwell 348, 423 Townsend «. Dovrner 27, 369 Tracy i;. Kilborn 77 V. Tracy. 244 Trippe v. Prazier. 44, 870 Trotter v. Trotter 10 Trustees «. Peasley 46, 47, 874 Tucker ?!. Bishop 396 Turkes^ 262, 264 Turner ». Kittrell 78 Twining v. Powell 863 U. United States v. Arredondo.. . . . 274 V. VaU V. Vail 156, 188, 374 Van Alstyne v. Van Alstyne 380 Van Bulhard v. Nace 61 Vandemark «. Vandemark 6 Van der Volgen «. Yates. . . .398, 418 Vandervoort, Matter of 311 Van Derzee v. Van Derzee . . 31, 83 Van Dyke's App 353 V. Edmonds 83 XXIV TABLE OF CASES. Van Gieaon «. Howard 297 Van Hook v. Rogers 389 Van Home v. Dorrance 371 Van Kleeck v. Reformed Dutch Ch. 346, 348, 349, 423 Van Kess v. Hyatt 358 Vanordall v. Vanderwenter. . . . 424 Van Riper v. Van Riper 864 Van Vechten s. Van Vfechten, 830, 844 V. Pearson 38 Van Winkle v. Van Houten 232 Van Wyck v. Bloodgood 262 VarreU v. Wendell 321 Vamum v. Abbott 131 Verdier ». Verdier 362 ©.Watts 312 Vidal V. Gerard 403 V. Mayor of PhiladelpMa. 402 W. Wade ■». Colonization Soc 16 Wadhams/B. Am. Home Mission Soc 18 Wadsworth «. Ruggles 71 Walker®. Griffin 825 V. Parker 346 u. Vincent 890 V. Williamson 295 Walls V. Garrison 258 ©.Stewart 331,833 Walton V. Walton . . . .334, 361, 362 Ward V. Amory 32, 181 Ware v. Rowland 332 Warfield v. Crane 103 Waring v. Jackson 20, 87 Warner v. Beach 363 Warren v. Bates 215, 222 «. Wigfall 338 Washburn v. SewaU 412 Waterman «. Whitney 15 Waters v. Collen 18 Webster v. Cooper 181, 271 Welch's App 861 Wells 11. Doane 227, 411 V. Smith 271 Wessenger v. Hunt 365 West V. Moore 273 ■v. Williams 423, 434 Westcottii. Cady 5, 6 Whaley v. Jenkins 75 Wheatland «. Dodge 314 Wheaton v. Andrews 59, 68, 75, 83 ■». Donaldson 2 Wheeler v. Smith 372, 396 White V. Fisk 410 v. Howard 155, 158 V. Winchester 361 Whitehead v. Lassiter 424 Whitemore v. Bean 17 Whitenach «. Stryker 15 Whitman v. Norton 244 Wiggins V. Blount 358 Wight V. Thayer 1^16 Wilde V. Holtzmeyer 18 Wilderman v. Baltimore . . 395, 403 Wilent V. Calnan 76 Wilkinson v. Joughin 56 Willett V. Carroll 37o Williams v. Crary 364 V. Leech 104 V. Williams 406 Williamson v. Williamson ISg Willis V. Bucher 128 WiUs V. Cooper 103, 304 V. Palmer. 399, 300 Wilson V. Terry 12 u. Wilson 130, 400 Winder v. Smith 369 Windham «. Chetwynd 15 Winkley v. Kaime 46, 53 Winslow V. Cummings 409, 410 v. Goodwin 255 Wisner v. Barnet 417 Witman «. Le3s 413 «. Norton 856 Witney o. Olney 66 Wood «). Cone 160,344 «. George.' 60 D.Wood 242 Woodham y. Maverick 88 AMERICAN CASES CITED. XXV Woods V. Moore 42, 46, 374 V. Woods 48, Woodstock V. Hooker 315 Wootton «. Redd 49, 369 Worley d. Woiiey 341 Worthington ». Hylyer 4S Wright «. Page 31, 79,- 85, -86 V. Scott 113 ». Trustees of Meth. Ep. Ch. 6, 156, 299, 319, 391 ». West '. 343 Wright «. Wright 18 Wyse V. Smith 355 T. Young V. Stone 141 •B. Young 70 Z. Zeigler ». 'Eckert 864 Zeller v. Eckert . , 258 Zimmerman «. Andrews 413 ZoUicoflFer «. Zollicoffer IS^ ENGLISH CASES CITED. A. Abney v. Miller 361 Abrey ■». Newman 334 Acterley v. Vernon 68 Ackland v. Lutley 177 Ackroyd ■». Smithson 157 Adamson v. Armitage 61 Adlington «?. Oaiin 186 Adman v. Cole 409 Alton V. Brooks 193 Aldrich «. Coopei* 357 Allan V. Backhouse 90, 389 Allen V. Callow •. 418 Ancaster (Duke of) v. Mayer . . . 339 Andrews «. Emmott 309 V. FuUham, 415 V. Partington 289, 394 AndresB d. Welter 57 Anison v. Simpson 349 Appleton B. Rowley .... 110, 123 Archer's Case 106, 111, 301 Armitage v. Williams 383 Arnold v. Chapman 419 V. Congreve 383 Arrow c. Mellish 324 Ashley ». Ashley 147 Ashton V. Ashton 335 Aston V. Wood 373 Atkins V. Hiccocks 363 Attorney-Gen. v. Clarke ... 408 V. Davies 398,406 ». Earl of Ions- dale 402 ■B. Goulding 406 ®. Henchman 163 Attorney-Gen. ». Pearson . . 411 , V. Price 156, 333 B. Ramsay's Trus- tees 156 V. Sibthorp 46 Audsley », Horn 101 Auther v, Auther 333 Avelyn v. Ward 335, 415 Averall v. Wade 360 B. Bailey «. Mollard 316 Barker «. Giles 195, 300 V. Greenwood 175 Barlow v. Grant 224 Bainardiston v. Carter 256 Barnes v. Patch 317 Bayne v. Crowther 217 Beaumont v. Fell 35 Beevor v. Partridge 324 Benson v. Whittam 223 Berkeley «. Swinburne 354 Bemal v. Bemal ' 300 Berry v. Briant 303 Bickham «. Cruttwell 333, 236 Riddle v. Perkins 382 Birch «. Wade 325 Bird 1). Wood 336 Blackburn v. Staples 99, 100, 101 Blackwell v. Bull 167 Blague V. Gold. 43, 43 Bland i). Bland 371 Blandford v. Thackerell 406 Blayne v. Gold 371 SXVlll TABLE OP CASES. Blewitt «. Stauffers 199 Blinston u. Warburton 131 Blundell, In re 413 Booth V. Vicars 306 «. Blundell 90,311,243 Boraaton's Case 257, 258 Boughton V. Boughton 253 Bowman v. Milbanke 43, 370 Boyce v. Banning 383 Boys V. Bradley 320 Bradshaw v. Tasker 413 Brandon «. Robinson 279 Brederman v. Seymour 356 Bridge v. Abbot 305 Bridgman v. Dove 239 Briggs V. Penny . .217, 221, 222, 227 Bristol (Countess of) v. Hunger- lord 163 Bristowe V. Ward 382 Brograve v. Winder 204 Brown ». Bigg ....'. 157 B. Higgs ..213, 316, 217, 220, 225 Browne v. PauU 232 Bryan v. Twigg 194 Bryant's Trusts 323 Buckle ®. Fawcet 199, 280, 313 ' BuUock V. Bennett 280 «. Downes 133 Bunting «. Marriott 397 Burchett «. Durdaunt 399 Burke v. Annis 133 Bumaby v. Griffin 146 > Burr v. Smith 411 Butler V. Stratton 307 Byrne v. Blackburn. 232 C. Cadell ». Palmer 375 Cadogan v. Ewart 178 Calthorpe i>. Gough 415 Calvin's (^ase 1 Cambridge «. Rous 382 Camfleld v. Gilbert 62 Campbell v. Campbell 366 Carter v. Bentall 319, 324 Cary v. Abbot 411, 413 V. Cary 221 Chalmers v. Storril 246 Chamberlaine v. Turner 371 Chamberlayne v. Chamberlayne. 301 Chambers v. Atkins 227 v. Taylor 299 Chancey's Case 364 Chapman's Case 318 Chauncey «. Graydon 283 Chaworth v. Beach 333 Chichester v. Bickerstaff 350 Church «. Mundy 63 Clapton V. Bulmer 235 Clark v. Clark 345 Clergy Society, In re 46 Clifford v. Lewis 340 Clulow's Trust 388 Cockran -o. Cockran 18 Cole V. Scott 18 V. Sewell, 193, 193, 194,376,378 „. Wade s 235 Collins «. Wakeman 164 Collis V. Robins . . . , 240 Colpoys V. Colpoys 43 Colsha V. Cheese 433 Combe ®. Hughes 388 Combez v. HUl 146 Conron v. Conron 341 Cooke ®. Bowler ' 381 V. Cooke 307 V. Dawson 240 v. Gerrard 169 Cooper !/. Williams 44, 371 Coote V. Boyd 351 Corbett's Will, In re 150 Corbyn ». French 205 CordaU's Case 177 Coatabadie v. Costabadie 223 Cotton V. Cotton 805, 306 Coulson ®. Coulson 97 Courtenay v. Ferrers 339 Cowan «. Harrison 334 Crawford, In re * 305 Creed v. Creed 334, 335 Crichton V. Symes 849 ENGLISH OASES CITED. XX15 Cripps V. "Woolcott 199, 201 Croft V. Slee 418 Crooke v. Brooking . ." 323 V. De Vandes 350 Crotchett-B. Tajmton 312 Crowder v. Stone. .190, 191, 192, 195 Crozier v. Fisher 202 Cruise v. Barley 419 Crump v. Coleman 231, 318 Cuishan v. Newland 318 Curtis V. Price ' 174 V. Rippon 228 D. Daniell v. Daniell 201 Danvers v. Manning 57 Dark v. Fenner 107 Darrel v. Malesworth 205 Dashwood v. Peyton 167 Davenport v. Hanbury 307 V. Oldis 145 Davidson v. Foley 162 V. Proctor 326 Davies ex-p 121 V. Davies 383 V. Thorn's 336 Day V. Earl of Coventry 41 4). Trig.... 43 Deane v. I'est , " 386 De Beauvoir ». De Beauvoir. . . . 303 De Costa v. De Pas 411 Deerhinrst (Lord) v. Duke of St. Albans 380 Defflis «. Goldschmidt 393 Denn d. Wilkins v. Kemeys 43 Devisme v. Mello 288 Dickin u. Edwards 334 Dickson's Trust 268 Doe d. Angell v. Angell 300 V. Berkhead 196 d. Borwell v. Abey.. . 203 d. Calkin ». Tompkinson. . . 187 d. Chichester 250 (^.Cholmondeley*. Weather- t ly 63 d. Claridge 179 d. Clarke 83 Doe d. Clayton 83 d. Compere v. Morris 178 d. Cooper v. Collis 309 V. Dacre 355 d. Davies v. Daviea 178 d. Elhs V. Ellis 803 ^. Elton e. Stenlake 40 V. Field 177 V. Frost 131 V. Galliai 36 d. Goldin v. Lakeman 89 d. Gorges v. Webb 148, 148 d. Hayter v. Joinville.. . .48, 318 V. Hicks 176 d. Hiscocks «. Hiscocks 49 d. Homfray , 174 d. V. Huthwaite 47 d. James v. Hallett 295 d. Jersey «. Smith 43 d. King V. Frost 120 d. V. Lawton 83 d. Leicester v. Biggs 175 d. Lifibrd v. Sparrow 203 d. Lindsey n. Calyear 399 d. Littlewood v. Green.. 134, 300 d. «. Nasmyth v. Knowles . . 391 . Earl of Dartmouth, 158, 338, 840 Howse ». Chapman 390 Hoy V. Master 220 Howarth v. Dewell 221 Huffan V. Hubbard 201 Hughes «. Turner. 58 Hulme v. Tenant , 287 Hume V. Edwards 334 Hurst v. Beach .*. 351, 353 Hutcheson v. Hammond 164 Hutton «. Simpson 93 Hiixtep ®. Brooman 63 • L Iredell v. Iredell 395 J. Jackson v. Noble 416 Jacques «; Chambers 338 James v. Lord Wynford 257 v. Richardson 399 V. Smith 314 Jenkins v. Lord Clinton 81 Jennings v. Newman 318 Jemingham v. Herbert 11 Jervoise v. Duke of Northum- berland.. 99 Jobson's Case 33 Joel B.Mills 217 Johnson v. Rowlands 331 ■8. Swan 398 Jones d. Henry v. Hancock 44 (Lady) v. Lord Say & Sele 97 D. Newman 50 V. Nicholay 6 ». Tucker 52 V. Williams 401 Jubbe/ V. Jubber. ., 44, 237, 373 K. Keiley «. Fowler. 127 XXXll TABLE OP CASES. Kenchel v. Scrafton 315 Kendall v. Granger 315 Kenworthy «. Ward 133 Key e. Key 83 Kidney v. Coussmaker 344, 350 King V. Ackerman. . . '. 84, 88 «. Burchell 309 •B. Cleveland . . .' 305 ?i. Milling 97, 308 Kirkman v. Lewis 373 Knight D. Boughton 333 «. Gould 418 V. Knight 331 Knollys v. Shipherd 64, 183 L. Lamb v. Archer 154 Lance v. Aglionby 340 Lane «. Pannell 98 Langdon v. Simpson 386 Langford «. Gowlard 408 Langston B. Langaton 57, 313 Lawless «. Shaw 319, 333 Lawson ». Stitch 333 Leake «. Robinson 363, 380 Lechmere v. Lavie 334 Lee i;. Pain 393 V. Priaulx 386 Leeming v. Sherratt 193, 194 Le Grice d. Pinch 333 Leigh 11. Leigh 33, 393, 331 Le Maistre v. Bannister 330 Leonard ■». Earl of Sussex 98 Lethiellier v. Tracy 356 Levet D. Needham . . . , 163 Lewin ». Lewin 334 Lincoln (Lady) v. Pelham. .333, 334 Lingen r. Foley. 90 V. Sowray 155 Lister v. Bradley 360 Little «. Neil 317 Littlejohn «. Household 300 Lockhart v. Hardy 339 Loddington v. Kime 309 Logan V. Deshay 363 Long ». Blackall 306 Louth 11. Bloxam 358 Lowndes v. Stone 45 Lowther v. Condon 360 Lyon V. Michell 309 M. Maclaren v. Staunton 340 Mainwaring v. Beevor 393 Malcolm v. Taylor 135 Malim v. Keighley 331 Mandeville's Case 93, 167 Manning ■». Spooner 356 Marlborough (Duke of) v. Go- dolphin 34, 383 Marriott v. Abel 193, 195 Marryatt v. Townly 135 Marsh v. Tyrrell 54 Marston v. Roe 8 Mason «. Limbury 331 V. Robinson 369 V. White 313 Massey v. Sherman 333 Mather «. Thomas 183 Maybank v. Brooks 416, 430 McOuUoch V. McCulloch . . 315, 317 Medworth v. Pope 316 Meggison. v. Moore 331 MelUsh V. Mellish 56 V. Vallins 336 Meredith v. Heneage 332 Meure v. Meure 99 Milner v. Milner '. 66 Mills V. Farmer 405, 413 Mirehouse v. Scaif- 355 Mogg 11. Mogg 393, 307 Moggridge v. Shackwell . . 406, 413 Mohren u: Mohren 376 Mohun V. Mohun 43 Monck ■». Monck 360 Monk «.' Mawdesley 63 Moore «. Bud d 13 V. Petchell 354 Morice v. Bishop of Durham . . . 407 Morris v. Glynn 396 Mortimer «. Hartley 35, 168 Moseley v. Massy 37 ENGLISH GASES CITED. XXXIU Mountain v. Bennett 64 MullinB 1). Smith 330 Murray v. Jones 415 Musgrave v. Down 4 N. Napier v. Napier 207 Nash V. Nash 96 Neuthway ». Ham 46, 374 Nevill ■». Nevill 334 Newburgh o. Newburgh 57 Newman v. Newman 380 Nichols V. Hooper 133, 133 V. Savage 319 Nisbett s. Murray 339 Noel «. Henley (Lord) 306 c. Hoy 68 Nowlan c.Neligan 331 O. Oddie v. Woodford 300 Ommaney v. Butcher 407 Oppenheim «. Henry 389 Orton's Trust, In re. 310 Ouseley «. Anstruther 58 Oxford (Earl of) v. Lady Rodney 231 (University of) v. Clif- ton 808 P. Page ». Page 417 Pain V. Benson 195 Palin V. Hills 306 Palmer v. Newell 309 V. Simmonds 234 Palsford «. Hunter 336 PapUlon V. Voice 97 Parker v. Bolton 331 Parsons «. Baker 332 V. Parsons 46 Pattison v. Pattison 361 Paul V. Compton 292 Pajaeexp 337 Pearce «. Edmeades 150 Pearce v. Loman 359, 360 Pearman v. Leviss ... 357 Peck V. Halsey 44, 370 Perrin v. Blake 82, 86, 95, 104 Peyton v. Bury 256 Phene's- Trusts 296 Phillips v. Chamberlayne 56 B.Phillips 163, 423 Phipard v. Mansfield 146 Pickering v. Pickering 338 V. Lord Stamford . . . 347 Pierson «. Garnet. 331, 335 Pitt V. Jackson 36, 383 Piatt V. Powles 101 Plunkett V. Lewis 366 Poad V. Watson 178 Poole V. Poole 866 Poor v. Miall 397 Pope «. Whitcombe 335, 333 Porter's Case 410 Trust, In re 805 Powell V. Davies 45 V. Howells 149 Powys v. Mansfield 367 Prestwidge v. Groombridge 45 Prevost v. Clarke 331 Price V. Warren 369 Pridie r. Field 338 Proctor V. Bishop of Bath and Wells 381 Promise v. Abingdon 359 Provis ®. Eowe 186 Prowse V. Abingdon ,. 359 Purse V. Snaplin 385 Pym V. Lockyer 365 Pyot V. Pyot 833 R. Ranke v. Hard 333 Reed i>. Denaynes 188 Remnant . Baker 83 Shaftesbury v. Duke of Marl- borough 389 Shallcross v. Finder 33, 341 Shaw exp .187 Shelley's Case . . . . ; 96, 99, 309 Shepherd v. Ingram 395 Shewell v. Dwarris 386 Sibthorp ■». Moxton . '. 438 Sidebotham v. Watson 333 Sidney v. Shelley 163 Silk 1). Prime 179, 358 Simson v. Smith 313 Sijagleton v. Gilbert 390 Skerratt v. Oakley 173 Skey «. Barnes 148 Slade V. Parr 193 Small D. Wing 90 Smith «. Campbell 321 4). Claxton 164 v. Coney 46 ■ V. Death 337 B. Lidiard 310 ■B. Oakes 170 i>. Osborne 150, 194 V. Palmer 305 Soresby v. HoUins 397 South V. Williams. 433 Southern «. Wallaston 363 Spink V. Lewis 819 Sproude v. Prior 359 Stackhouse i). Bamston 351 Stafford ». Buckley 94 St. Albans (Duke of), v. Beau- clerk 352 Standen v. Standen 46, 874 Staners v. Barnard 313 Stanley v. Lennard 136 Steyens v. Hale 303 V. James 378 i>. Snelling 43 Stevenson v. Dowson 333, 386 Stewart ®. Garnet 82, 89 Stocks 1). Dodsley 306 Stokes V. Heron ^ 91 Stratton v. Best. 132, 135 Straus V. Goldsmid 411 Stretch v. Walkers 363 Stringer ■». Gardiner 46 Strode ,«. Lady Falkland 373 ENGLISH CASBI> CITED. XXXV Strong.D. Teatt 62 Stubbs V. Sargon 45, 337 Suisse V. Lowther 350 Surman v. Surtnan .... 44, 371, 373 Surtees v. Perkins i 358 Sweeting v. Sweeting 186 "Sykes v. Sykes 349 T. . Tarbuck v. Tarbuck 416 Target v. Gaunt 139 Tatham «. Drummond 399 Taylor v. Martindale 337 V. Plaine 183 «. Webb 43, 370 Tee V. Farris , 65 Thelluson v. Woodford 804 Themmines v. De Bouneval 418 Tliomas ». Phels 63 Thompson v. Browne 5 V. Hudson 385 V. Lady Hawley .... 61 Thornton «. Hawley 157 Thorp V. Owen , 333, 337 Thynne «. Lord GlengaU 363 TibbetSi;. Tibbets 333 Tiffin V. Longman 330 Tilly V. OoUyer '. 173 Townsend «. Martin 333 Townson v. TickeU 359 Trafford ®. Ashton 90 Trenimer v. Bayne 186 Trevanion ■». Vivian 347 Trimlestown (Lord) ». D'Alton . 55 Trinder v. Trinder 335 Trotter v. Oswald 37 Trower «. Butts 311 Tuck V. Frenchaw ... 41 Twisden v. Twisden 366 F. Underwood ». Wing 433 Vanderplank «. King 145 * Vamghan v. Burslem 153 . Venables v. Morris 180 Vernon «. Vernon 331 Vezey v, Jamson 407 Viver v. Francis ... 388, 340 W. Wainwright 9. Wainwright . . . . 171 Waite V. Webb 397 Walker v. Mackie 171 Waller ■». Childs 405 Walsh «. Acton 366 Ware v. Rowland 333 Watson V. Pearson 176 Weakley d. Knight v. Rugg 393 Webb 41. Wools 333 Webb's Case 45, 373 Webster «. Hale 334 Weedon v. FeU 303 West, exp.. 195, 304 V. Shuttleworth 411, 413 Whitfe V. Baker 303 Wilde V. Holtzmeyer 18 Wild's Case 36 Wilkinson v. Adams 314, 315 WilUams v. Ashton 330 V. Corbet 333 V. Jones 330 Wills V. Palmer 399, 300 Wilson V. Audrey 190 B.Bell 309 V. Dunsany 359 «. Halliley 90, 311 V. Madison 91 V. Squire 51 V. O'Leary 351 Winch V. Brutton 333 Winchclyfe v. Westwood 306 Winter ii. Perratt 399 Withy «. Mangles 330 Wood V. Baron 314 *. Cox 338 V. IngersoU 373 Woodcock V. Woodcock 371 Woodgate v. Tin win. . .133, 133, 135 Woodham v. Maverick 88 XXXVl TABLE OF CASES. Woodhouse v. Meredith 81, 188 ■Woodhouslee(Lord)».Dalrymple 315 "Woods V. Woods 823 Woollam«. Kenworthy 60 Worlidge v. ChurchUl 196 Wright V. Atkyns 317, 335, 338, 318 Wrightson v. Macauley 300 Wykham v. Wykham 177 Wylie V. Wylie 38 Wynne v. Hawkins 324 Wyth «. Blackman 318 Wythe V. Henniker. . .• 333 CHAPTER I. NATTJKE AND INCroENTS OP WILLS. § 1. delations of American to English testamenta/ry law. A BBiEF account of the relations of American test- amentary law in general, to the common, statute, and case law of England, seems necessary for the complete- ness of a sketch of the rules relating to the construction of wills. The English coloiiists brought here with them the English law.^ The Congress of 1774 proclaimed this doctrine, and it has not been since disputed. Conquest or revolution, indeed, does not necessarily imply that the old law continues. However, since the American revolution and the declaration of independence by the United States, the common law, as far as it is not in- consistent with our political constitution and circum- stances, has been expressly adopted by Massachusetts,. New York, New Jersey, and Maryland. It has also been recognized by the courts of the other States.* The old public general statutes of England are also deemed parts of the common, law of the several States. The constitution of New York, of 1777, declared that the law of the colony, as it existed on the nine- teenth of April, 1775, should continue to be the law of ' Calyin's case, 7 Co. 17,; Commonwealth «. Leach, 1 Mass. 60; 3 Id. 534. " Kent's Comm. vol. I, 472, 473, notes. A 2 NATURE AND INCIDENTS OP WILLS. the State. The law of England, as it was prior to the fourth year of James the First, so far as it was of a general nature, was adopted by Virginia, Ohio, and Arkansas. In Illinois, Indiana, and Missouri, the same recognition was made, with the exception of the usury laws. The common and general statute laws of Eng- land, down to 1Y76, were also adopted in Mississippi and Georgia. Vermont, likewise, has recognized the laws of England as they were in 1760. Rhode Island has adopted the English written and unwritten law down to 5 Anne, chapter 6. New Jersey has also, adopted the bulk of the English law. The civil code of Louisiana^ has repealed the French, Spanish- and Roman laws, but not its own common law, or the ra- tiones judicandi in force when Louisiana was ceded to the United States. ^ The district court of that State has equitable powers, and is bound by the rules of the English Chancery. Several of the leading English stat- utes, too, have been expressly adopted by several of the State legislatures. The provisions of the Statute of Frauds, especially, have been re-enacted in almost all of the States." The common law is no essential part of federal jurisprudence. * But, as various State laws relating to person and property are rules of decision for the federal courts, ^ a large portion of the English common law is thus indirectly imported into federal law. The Con- stitution, laws, and decisions of the American Union, however, form its essential jurisprudence. ' Art. 3,531. ' Reynolds v. Swan, 13 Louisiana Kbp. 198; Gaines «. Rolt, 15 Peters' U. S. 9. " Qreenleaf on Ev. TOl. I, § 26, 2 b.; 39, c. 2, e. 3 ; 4 Kent's Comm. 95, note b, 4th ed.; see Browne on Statute of Frauds, App. pp. 501-582. * Wheaton v. Donaldson, 8 Peters' U. S. 658. ° 10 Wheaton, 109. AMERICAN AND ENGLISH LAW. 3 It is hardly necessary to add that no statute passed in England since the declaration of the independence of the United States, has, of itself, any authority here. But, as many of such acts are merely declaratory of the civil or common law, it follows that at least, when they profess to be so declaratory, they are of weight with our tribunals. Decisions by the English courts in pari materia have also very great weight here, especially where the case has gone through an appellate course. With the exception of the points noticed in chapter 2,- § 1, there is hardly any appreciable difference between the testamentary codes of the two countries, as regards rules of construction. Our courts, however, as is stated in the author's edition of Sir James Wigram's treatise, admit parol evidence more freely than is done in England. Still, as the American rules of construction, or of inter- nal, as distinguished from external evidence, are so sim- ilar to the analogous British rules, there is ground to hope that the following work will be of use even to the English practitioner, in giving him, in a condensed form, the pith of our leading rules and decisions in testament- ary law. The statutes of most of the American States fequire wills to be in writing. Besides, the chief provisions in the last English Wills Consolidation Act^ are either copied from previous American enactments, or have been since adopted in several of the States. The law of England, as settled by that statute, is thus a fair sample of our average testamentary law. Accord- ingly, the cases — and they are legion — decided un- der that act, will most probably be found to hold out almost unerring lights on any paths not yet traversed by American adjudication. The following treatise, however, has been intended to give, or refer to, 6nly the more important of the English decisions. ' 1 Vict. c. 26. 4 NATURE AND INCIDENTS OF WIIiLS. ^ 2. A will dejmed and expkdned. A will may be defined to be a legal revocable dis- pdsition of one's property, to take effect from his death. ^ Such an instrument may be couched in any form or language, provided that its whole operation is postponed until the death of the grantor. In one case there was both a consideration for the grant, and words of imme- diate transfer, yet the instrument was held to be test- amentary. * The general criteria of a will, however, are that it is voluntary and not of operation until after the death of the grantor. Yet, a deed to trustees to the use of the grantor, A, for life, remainder to the use of B, with power of revocation to A, is not a will but a deed, and is not subject to probate or legacy duty. The test appears to be the passing of any interest legal or equitable during the grantor's life. If such interest pass, though it be but a bare seisin to uses, the instrument is not test- amentary. Parol evidence is admissible to show the res gestCB and the intention of the testator as to whether the document was to be testamentary.* Where no statute requires a will to be in wilting oi" to be executed with any formality, probate will be given to any testamentary act, even to receipts for stock, bills endorsed "for A, B,"* iassigiiments of bonds, ^ letters, " marriage articles, "^ and deeds, ® or promissory notes, ® of a testamentary and revocable ' See Langdon v. Astor, 16 N. Y. (2 Smith), 9, 49. " See 4 Hawks, 141. ' Harrington ». Bradford, Walker, 520. * Sabine v. Goate, 2 Hagg. 247. " Musgrave v. Down, cited in 2 Hagg. 247. • Drybutter ®. Hodges, Id. 247. ' In re Knight, 2 Hagg. 554. « Id. ° 1 Maxee «. Shute, cited in 2 H^gg. 247. WILL DEFINED ABD EXPLAINED, 6 nature. It is, however, sometimes exceedingly difficult to determine whether the instrument or act propounded is testamentary, where there is no local statute regu- lating the execution of wills, ^ In the United States as well as in England the testamentary character of a document depends on its substance and not on its form,** except so far as that de- pends on statute, ® In analogy to the cases just referred to, a Scottish deed of disposition and settlement and a letter * have been admitted to probate here. Even a joint or conditional will is valid in the United States though, semble, not in England.' Husband and wife may, under a power, make a joint will which is not revocable by either separately. An instrument intended to be a joint will by any other two is sometimes enforced in equity as a mutual contract.* When it is thus enforceable, it is not vol- untaiy, and consequently does not operate as a will properly so called, A republication of a will by a codicil makes after ac- quired lands to pass in those States where a will of land speaks from the date of execution. For, a will and codicils thereto are to be construed together as one instrument,'' A likie rule prevails in respect to a will and documents incorporated therewith by reference.^ Legacies adeemed or satisfied, however, are not revived by a re-execution of the will with codicils,' ' Thompson «. Browne, 3 My. & K. 33. « Carle v. UnderhiU, 3 Bradf. 101. ' Matter of Easton, 6 Paige, 183. * Morrell v. Dickey, 1 Johns. Ch. 153. ' Ex p. Day, 1 Bradf., 476, ' Dufour B. Pereira, 1 Dick. 419. ' Westcott «. Cady, 5 Johns. Ch. 343. ' Jackson v, Babcock, 13 Johns. 389. • Langdon v. Astor, 16 N. Y. (3 Smith) 9. 6 NATURE AND INCIDElirTS OF WILLS. § 3. BevocaUon. A will or codicil is not necessarily a revocation of a prior will/ and if the codicil is expressed to alter the will in one particular, the presumption is that it con- firms and republishes the rest of the will. ^ A will that expressly revokes all former wills, or that disposes of all the testator's property, acts as a revocation of all former wills. ^ Otherwise, the second will is only a revocation pro tanto.^ As to implied revocation by marriage, see 2 New York Rev. Stat. 64, § 43. A contract to sell does not revoke a devise.^ A change in the testator's property by transfer operates as a revocation of the will only pro tanto ; * and a cod- icil only revokes a will so far as such revocation is absolutely necessary to give efifect to the dispositions in the codicil. In other words, the presumption is against a revocation. "^ By the New York Revised Statutes, if a will disposes of the whole estate, marriage and the birth of a child revoke the will, if either the wife or child survive the testator. Parol evidence^is not admissible to rebut this presumption. But such evidence is admissible in those States which contain no statutory provision, expressly or impliedly, to the contrary. In Pennsylvania^ and Delaware, marriage or an ' See Jones v. Nicholay, 3 Eng. L. & Eq. 591. ' Quincy v. Rogers, 9 Gush. 391 ; Payn ». Payn, 18 Cal. 391. ° Simmons v. Simmons, 36 Barb.- 68. ' Brant v. Wilson, 8 Cow. 56. ' Knight «. Weatherwax, 7 Paige, 183. " Vandemark v. Vandemark, 36 Barb. 416. ' Kane v. Astor, 5 Sandf. 457 ; Westcott v. Cady, 5 Johns. Ch. 343 ; Wright V. Method. Epis. Church, 1 HoflQn. Ch. 333 ; See Howland v. Union Theolog. Seminary, 5 N. Y. (1 Seld.) 193. ' Tomlinson v. Tomlinson, 1 Ashm. 334. REVOOATIOS. 7 after-child not provided for, is a revocation fro tanto only. In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids the will in toto. -^ The will of a feme-sole is revoked by marriage, A devise is revoked by a sale of the land : all other spe- cific gifts are revoked if the subject matter is assigned. ^ By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Ohio, and Ala- bama, a posthumous child, and, in all of these States, except Delaware and Alabama, children born after the making of the will, and in the lifetime of the father, will inherit as if he had died intestate, unless the will comprises some provision for them, or they are par- ticularly referred to in it. * The will is thus revoked pro tanto. The statute law in Maine, New Hampshire, * Massachusetts, and Ehode Island, goes further, and gives the same relief to all children and their legal representatives who have not been provided for in the will or previously advanced, unless the omission in the will appears to have been intentional. In Virginia and Kentucky, the birth of a child after the will, if there were none previously, revokes the will, unless the child dies unmarried or an infant. If the testator had child- ren previously, the birth operates as a revocation pro tanto. In Virginia a will is also revoked by mar- riage,® ' See Coates v. Hughes, 3 Binney, 498 ; 4 Kent's Comm. 526, note. Stat- utes of Ohio, 1831, p. 243; Statutes of Uonn. 1821, p. SCO ; Statutes of 111. 1839; Statutes of Indiana, 1831 ; Digest of Ehode Island, Statutes, 1798, p. 282, 6Haris. & Johns. 54; New York Eey. Stat. vol. II, 66, § 53; Mass. Kev. Stat. 1836, part. 2, tit. 3, c. 62. '' See Infra, chapter 24, § 3, on "the ademption of specific legacies." » 4 Kent's Comm. 525. * ' Gage v. Gage, 9 Foster, 533. ' Bev. Stat. 1849, tit. 33, oh. 133, § 4; 4 Kent's Comm. 536. 8 NATUKE AJSJ) INCIDENTS OF WILLS. In Marston v. Roe, ^ it was held that a will making no provision for the future birth of a child, although it did for a future wife, was revoked by the birth of a child, and parol evidence was not admitted to rebut this presumption. By the New York Revised Statutes, if. the whole estate is disposed of by the will, it is revoked by mar- riage and the birth of a child, if the wife or child be living at the time of the testator's death, unless the issue be previously provided for. § 4. Gonflict of testamentary laws. — What lam prevaMs ? Wills of personalty were not in England required to be in writing until 1838.* By that act, wills of personalty are required to be written and executed with the same formalities as wills of land. Similar uniform rules likewise prevail in most of the United States. A will operates according to the laws in force at the time of the testator's decease, and not at the time of making the will.* Statutes prescribing the effect of .wills, however, should not be construed to have a retro- spective effect * unless this is expressly provided for in the enactment. A statute enacted between the date of the will and that of the testator's death may also indirect- ly operate on the will.' AUter in New York if the tes- tator's death occurred before the passing of the Revised Statutes.® In Thomson v. Livingston'' b. will, which took ' 8 Ad. & El. 14. = 1 Vict. c. 26. ' Adams v. Wilbur. 3 Sum. 266. ' See Carroll v. Carroll, 1 How. 275. ' Sherman v. Sherman, 3 Barb. 385. • Price «. Brown, 1 Bradf. 291. ' 4 Sandf. 589. CONFLICT OF LAWS. » effect before the passing of tlie Eevised Statutes and created a trust with power to a son to appoiiit by will, was construed in conjunction with the son's appointment to be altogether but a single will as regarded the validity of the final disposal of the property according to the provisions of the Revised Statutes. It has been decided that a testator by adding a cod- icil, after the Revised Statutes, republished his will and subjected its construction to the Revised Statutfes.^ These enactments do not apply to wills made previously nor to wills of testators domiciled abroad or in other States.* • Semhle, a republication by. codicil in England does not bring the will under the operation of an act passed after the will and before the codicil. At least such seems to be the rule of law as regards the Dower act.* The probate of a will by the statutory courts in England or the United States is conclusive evidence that the document is testamentary. Yet, a trust may be saddled by parol on a testamentary gift obtained by fraud; and a court of law or equity may also construe the will so as to render it wholly or in part inoperative, or may deem' it void as not being in conformity with the law of the testator's domicile. Prior to the establishment of statutory courts in England and the United States, the ecclesiastical courts in England, and the analogous courts here, gave no conclusive probate of wills of realty, but only 'of person- alty. The statutory courts, however, have generally equal jurisdiction as regard both descriptions of prop- erty. ' Salmon «. Stuyvesant, 16 Wend. 321. » Matter of Boberta, 8 Paige, 446. » See Hawkins on Wills, p. 273. 10 ■ NATURE AND INCIDENTS OE WILLS. § 5. Domicile. Jarman ^ considers that a will of realty is construed according to the law of the country where the land is situate. But Story,* Greenleaf,' and other writers,* are of opinion that this doctrine of the lex rei sites does not apply to the construction, as distinguished from the execution, of wills. Several American authorities may be cited in favor of either position.® The balance of decisions, however, is greatly in favor of Jarman's view. It would seem, in point of principle, that as a will of realty was formerly construed as a quasi-con- veyance, there is much reason to contend that the domiciliary law ought not to attach to devises. But, on the other hand, as wills are of an equitable origin, and, therefore, when made abroad, are like articles or contracts entered into in a foreign country, there are at least equally strong reasons for holding that devises ought to be cpnstrued according to the law of the. test- ator's domicile. A will is presumed to be made in extremis by a person in want of counsel. Why should he be presumed to know the law of the rei sitae rather than that of his domicile ? However, existing authority is strongly to the effect that devises are governed by the lex rei sitoe.^ Yet, in Harrison v. Nixon,^ it was held that wills are to be construed according to the laws of the testator's domicile, especially as regards personalty, unless the • Vol. I, 1. = Conflict of Laws, § 479 h. ' Ev. § 671. * 1 Jarm. Am. Ed. p. 3, note. " See Trotter «. Trotter, 3 Wils. & Shaw. 407 ; see 1 Redfleld on Wills, chap. 9, § 3. ° See Lynes ». Townsend, 33 N. T. 558. ' 9 Pet,(U. 8.) 483; see Enohin v. Wylie, 10 H. Lds. Cas. 1. DOMICILE. ' 11 context provides to the contrary. In New York', too, the lex domudUi governs as to the validity and con- struction of wills of realty,^ and the same points have been so decided in most of the other States. Semble, the law of the testator's domicile will govern as to what is to be deemed real and what personal. Jarman ^ considers that the law of the test- ator's domicile governs only movables, and does not apply to leaseholds, which are not movables in the civil law. This opinion seems sound. See, however, Jerningham v. Herbert. ^ The decision of a court of the domiciliary nation, at all events, is conclusive in a question of the validity or revocation of a will, only as regards the testator's personalty, and not his realty, situate outside of that jurisdiction. * The essentials of domicile are habitation, animo manendi; in other words, a, permanent liome, or a home with the intention of keeping it, or of returning to it. Sometimes, where a person lives half the year in one state and half in another, it is difficult to determine the domicile. The question is one of fact for a jury.^ With regard to moveable property, it is distributed on intestacy according to the domiciliary law. If the testator changes his domicile after making his will, and it is invalid according to 'the law of his new domicile, it was formerly supposed to be avoided, except that if he resumed a domicile in the nation where the will was made it was thereby revived.® But it was decided in Exp. M'Cormick^ that a foreign will of personalty, »• Bloomer ». Bloomer, 2 Bradf". 839. ' Vol. I, 3 note. ' 4 Buss'. 388. " Bloomer ». Bloomer, 3 Bradf. Sur. 339. " See Romid on Domicile, passim ; Potter ». Titcomb, 33 Maine, 300. • Story Confl. Laws, § 473; 3 Greenl. Ev. § 668, ' 3 Bradf. 169 ; Isham v. Gibbons, 1 Id. 69 ; but see Parsons ». Lyman, 30 N. Y. (6 Snutli), 103 ; Mooltrie «. Hunt, 33 N. Y, (9 Smith), 394. 12 NATUEE AND INCIDENTS OE WILLS. duly executed at the testator'^ domicile according to the ' forms there required, remains valid, although he changes his domicile to a place where a different mode of execu- tion is required. The domicile of origin remains until changed. The domicile of a mother, semlle, is the domicile of her children, if their father is deceased. When a domicile is pnce acquired, it continues until it is again actually changed. An intention to remain is necessary for a domicile of acquisition ; but an intention to change is not sufficient to alter a domicile until it is actually changed. Therefore, death en route does not alter domi- cile.* Domicile, when acquired, is the result of a volun- tary act ; consequently, imprisonment abroad does not alter domicile, but a permanent residence there has this effect, even though the testator is a trader, and, as such, is protected by treaty with his native country.* The fact of domicile is part of the res gestw. Any question relating to the testator's domicile is, therefore, open to parol evidence.* Although foreign laws are proveable as facts, yet this evidence is addressed to the court, and not to the jury. The evidence of foreign experts may be taken by the courts. If no evidence is known to them of the foreign laws being different from their own, they will presume that no such difference exists.* § 6. Capacity to will. Although questions of capacity are not directly con- nected with rules of construction, yet, a few remarks on testamentary capacity will not be wholly irrelevant. ■ State 0. Hallett, 8 Ala. 159. " Moore n. Budd, 4 Hagg. 346. ' Wilson V. Terry, 9 Allen, 214. * McClellan ». Kennedy, 8 Maryland, 230. OAPACIXY TO WILL. 13 Indeed, questions of accidental, not personal, disability, such as fraud, undue influence, as distinguished from nonage, insanity, or coverture, are indirectly connected with rules of construction, inasmuch as fraud sometimes does not extend to the whole instrument, but merely to a part thereof, and the overthrow of a part of a will often materially affects the construction of the remainder. At common law, females at twelve and males at fourteen might dispose of personalty by will. The first English statute of wills, 32 Hen". VIII., ch. 1, § 14, required testators of realty to be of age, and the statute 34 and 35 Hen. VIII., ch. 5, incapacitated females. The 1st Vict., ch. 26, has extended the requirement of full age to all testators, male and female. A similar law now prevails in most of our States. The day of one's birth is included in computing his legal age ; therefore, as the law regards no fraction of a day in legal computation, a person born on the first of January, 1850, attains majority on the first moment of first January, 1871. * , The domiciliary law governs as to testamentary ca- pacity. In New York males of eighteen and unmarried females of sixteen may bequeath personal estate.^ The testamentary capacity of married, women, as to person- ality, is in effect taken away by the section referred to.* The married woman's Act of 1848 conferred no testa- mentary capacity, but the Act of 1849 did.* A married woman, whose husband is not civilly dead, cannot by the law of England make a will, either of real or personal property, except of personal estate settled to her separate use, or under a power* or by her ' Rev. Stat. 60 § 31. " Wadhams v. Am. Home Mission Soc. 13 N. T. (3 Kern.) 415. ' Waters v. Collen, 2 Bradf. 354. * Holman v. Perry, 4 Metcalf, 493. 14. NATITEB AND INCIDENTS OP WILLS. husband's specific permission,^ or else as executrix. In this last capacity she can make a will, without her hus- band's consent, of all assets not previously collected, and so far as she takes no interest in them. A will made by her with consent of her husband is void, unless the consent be to the particular will (in the concrete) in question, and unless the husband survive her. But a will of her separate personalty, or of her realty under a power, is independent of the husband's consent or sur- vivorship. The laws of the different States vary much in respect to testamentary capacity. • As to wills of married women operating as executions of powers, see Matter of Stewart.^ An alien's will of land is voidable only, and not void until office found. Aliens, however, may make valid wills of personalty.* Alien enemies are disqualified from doing so, unless they have a license from our government to reside here. As to the privileges of aliens, see further 2 Rent.* Their rights are now greatly modified by the laws of the different States, and possibly also indirectly by conventions formed by the Federal Government with foreign nations. At common law, testamentary capacity was destroyed by treason and felony. But this rule of the common law is now either abolished or greatly modified in most of the States. Testamentary capacity is proved by evidence that the testator knew what he was doing, even though his general business capacity was impaired.® Persons whose > Hood V. Archer, 1 M'Cord, 335. ' 11 Paige, 398. ' See 3 Kent, 61, 5th ed. * Comm. 70, 71, 5th ed. ' Converse v. Converse, 31 Yennont, 168 ; Kinne «. Kinne, 9 Conn. 103 ; Stewart v. Lispenard, 36 Wendell, 355. CAPACITY XO WILL. 15 reason is disordered, or who are drunk, are incapacitated from making a will. But partial intoxication does not work a complete disqualification to will.^ The burden of proof of testamentary capacity is supposed to rest on the person propounding the will. The attesting wit- nesses are competent to prove a want of testamentary capacity.* The declarations of a testator are evidence of his testamentary capacity, and also of the question whether the will has been obtained from him fairly, or by undue influence. On priiiciple, there seems' to be no ground for rejecting, as regards fraud, the testator's declarations made after the date of the will more than those made before it was executed.* On the question of capacity, see further, 'Davis v. Calvert.* On a question of capacity the contents of the will and the whole state of the tes- tator's affairs and conduct are relevant subjects for evidence. Various classes of persons are in England deprived by statute of rights under wills. In America no such disqualifications exist. A devise to a witness to a will formerly avoided the will unless it had three witnesses. By the present English law,^ which has been adopted in most of the United States, the will is now valid, but the legacy is void. According to the old rule, if the legacy was adeemed, the witness was restored to competency- in England,* but not in America.''' ' See Lowe v. Williamson, 1 Green Ch. 85, et seq. " Whitenach v. Stryker, 1 Green Ch. 11. 5 ' See Waterman v. Whitney, 1 Kernan (5 N. T.), 157 ; notes to Proposi- tion Seven in Sir James Wigram's treatise. ' 5 Gill and Johns. 369, 301. » Stat. 35 Geo. XL c. 3 ; stat. 1 Vict. c. 36. » Windham «. Chetwynd, 1 Burrow, 414. ' Hawes v. Humphrey, 9 Pick, 350 ; Oornwell «. Isham, 1 Day's Rep, 35, 41, and note. 16 NATURE AND INCIDENTS OF WILLS. A devise to the husband or wife of a witness avoids the will, yet a ^devise to a child of the witness has not this effect.^ But if the witness, as a non-resident or otherwise, is not required to establish the will, a legacy to him does not invalidate it.* An alien friend may take a bequest, but not a devise, nor even a bequest so far as it is derivable from land. An alien enemy, or a citizen domiciled in the country of an alien enemy, cannot take either a bequest or devise. A felon, in England, forfeits to the crown all rights of action accruing to him until his term of punishment is ended ; but he forfeits nothing that accrues to him afterwards. The law of forfeiture varies much in the different States. Bequests made in the Southern States during the civil war are valid, unless tainted with a want of alle- giance.® Devises to foreign corporations are valid, unless reasons of special policy, such as the discountenancing of slavery, are in question.* § 7. Period hy reference to which a will is construed. A will has always been presumed in England to speak only from the death of the testator, as to per- sonalty ; but in that country before 1838, a will spoke from its date as to realty. By 1st Vict. c. 26 devises and bequests both speak only from the death of the testator, unless a contrary intention appears. The rules thus settled by this act have long been adopted in most » Allen V. Allen, 2 Overt, 172. " Cornell v. Woolley, 3 Keyes (N. T.), 378. = Corbett «. Nutt, 18 Gratt, 624. ' Wade ». Colonization Society, 7 S. and M. 663. DA'SE FOE CONSTBUIKG A WILL. 17 of the United States/ either in consequence of a statute or by construction. The old rule as to devises of land implied that they were conveyances in certain respects. Therefore, if the testator parted with his seisin but for ah instant, it operd,ted as a revocation of a previous devise thereof. The date of a will is perhaps the natural period with reference to which the will should be interpreted, although the operation of a will, as of a deed, doubtless can date only from its complete execution. Wills of personalty, however, and of realty in England and several of the United States, are, as already stated, presumed not to operate previously to the death of the testator. A will is presumed, in the following States, to speak only from the date of the testator's death, as regards the subject matter (as distinguished from the objects) of the testator's bounty : — Maryland, Missouri, New York, and Pennsylvania. In Virginia, wills of land speak from the making of the instrument, unless it discloses an intention to the contrary,* A similar law obtains in Massachusetts,® New Hampshire,* Vermont, Indiana, Maine, North Carolina, Connecticut, Illiaois, and Kentucky,^ though a testator may in these States convey by his will any after-acquired land, provided he declares an intention to that effect. The construction put on the will statutes of these States, however, virtually raises a presumption that wills speak only from the death of the testator/ if there is nothing in the context to the contrary. ■ — ^ ^ — • See Gold v. J^udson, 21 Conn. 616, 632. " Smith V. Edrington, 8 Cranch, 66. " Mass. Gen. Stat. c. 92, § 4 ; Prescott v. Prescott, 7 Met. 141, 146. * Whittemore v. Bean, 6 N. H. 47; Kev. Stat. K H. 1848, ch. 156, § 3- ' See 4 Kent's Comm. 510, et se^. ' Gushing v. Aylwin, 13 Met. 169. 18 NATUKB ASB INCIDENTS OP WILLS. Specific legacies usually point to the date of tlie wilV general legacies to the death of. the testator. The words " now," " now living," refer to the date of the will. But the present tense of verbs has not always this signification ; therefore " all I am possessed of," or " all my debts," and similar residuary clauses, refer to the time of the testator's death.^ The meaning of the word " now " will not be affected by the absence of a date to the will,* since the date of any instrument, being part of the res gestae, is open to parol evidence.* In the case of Allsouls' College v. Codrington,® a testator be- queathed a library of books, " now in the custody of B." After-bought books were held to pass. The gift was, as it were, of a class of books. It is often exceedingly difficult to determine whether a testator intended that a particular clause in his will should speak from its making or from a future date. The words " now living," however, or the present tense of the verb used, may, as already noticed,* aid the interpretation. The substance of the disposition, and the context, are the best guides in this respect. Parol evidence, of course, is wholly inadmissible. Such evi- dence never relates to the willing or directing function, but only to the subject or object of gift. Specific bequests imply that the dispositions speak from the date of the making of the will. On this prin- ciple rests the doctrine of the ademption of such gifts. Jarman'^ thinks that in those States where a will speaks from the death of the testator, a specific gift will not ' Cocliran «. Cockran, 14 Sim. 348. = Wilde ». Holtzmeyer, 5 Ves. 811. » See conPra, Cole^. Scott, 16 Sim. 359. * Deakins i). Hollis, 7 GiU & J. 311 ; Wright v. Wright, 5 Ind. (Porter), 389. ' 'IP. Wms. 597. " 1 Jarman, 378 ; Wilde v. Holtzmeyer, 5 Ves. 811. * ' Vol. I. 390, et seq. INTERESTS DISPOSABLE BY WILL. 19 be considered to have been adeemed if the testator has re-acquired some other property that suits the descrip- tion in the will. But there is no reason whatever to suppose that the Isfc Vict., c. 26, and the analogous American statutes, are intended to make any change in the law of the ademption of specific testamentary gifts, since, indeed, the doctrine of ademption applies to be- quests of personalty as to which a will always spoke oi}ly from the time of the testator's death, unless the will itself provided to the contrary. § 18. Interests Disposable ly Will. The English law down to 1 Vict., c. 26, required that a testator should be seized of any land he devised. This rule still prevails in a few States.^ But, the New York Revised Statutes * make all descendible estates devisable. The same laXv prevails in Massachusetts, Vermont, Pennsylvania, and Virginia. In Ohio there is the general and most salutary provision by statute, that every kind of property may be ' devised. The testamentary power in the United States may therefore be considered as virtually the same as, or rather more extensive than, that which exists in England. The test in the latter country is the question whether the interest is a possibility coupled with an interest. In the United States the test usually is whether the interest is descendible. All interests, however, if vested, or executory, or con- sisting of rights of entry or of action, are devisable in most of the States," and in England since 1838. So are all possibilities coupled with an interest.* Bare possibili- ' 4 Kent's Comm. 513. = Vol. II. 57, § 3, 5. ' Smithwick «. Jordan, 15 Mass. 113. * Den ». Manners, 1 Spencer, 143. 20 NATURE AND INCIDENTS OP WILLS. ties, however, alttougli descendible, are not devisable in some of the States, although the common test of what is devisable is the inheritable quality of the interest in question.^ The possibility that the estate of a certified bank- rupt may be restored to him by means of a supersedeas, by an arrangement with his creditors or otherwise, is not such a possibility coupled w;ith an interest as will enable him to transmit the estate by a general devise of present and after-acquired property.** In New York, hoyvever, a testator may devise lands in the adverse possession of another, who holds under a sheriff's sale thereof, as the property of one who had no title.* Indeed, it would seem unsafe at the present day to hold that any interest or possibility not acquired tortiously is not devisable in any of the States, since statute law has made sad' havoc upon the venerable but thorny boundaries of the common law ; and equity is bound to follow the genius of legislation.* In those States where a devise of land speaks only from its date, the equitable or legal interest alone may pass, while the correlative interest, if after acquired, descends to the testator's heir. If a testator has not entered into a contract, valid either in law or equity, for land, and has no real estate, his devisee of land takes nothing, and is not entitled to have any per- sonalty applied to purchasing land' in order to render the devise operative. Terms of years and estsites, par autre vie, limited to ' Jackson v. Vaiick, 2 Wend. 166 ; 4 Kent's Comm. 513. See Smith «!. Jones, 4 Ohio, 115. ' Estate of Morris, Dist.- of Pa. Crabbe, 70. ' Waring ». Jackson, 1 Pet. 5'i'O. * See 4 Kent's Comm. 306, 307 ; Jackson «. Waldron, 13 Wend. 178, 4 Wash. C. C. 570. ' 3 Williams Ex. (3d Am. ed.) 1351, 1353. INTERESTS DISPOSABLE BY WILL. 21 the lessee and his executors (not heirs) vest as chattels real primarily in the executor. They are devisable, like ordinary personalty, and the testamentary power over them is not embarrassed with any question of tenure or seisin. A quasi entail of land held far autre vie, it seems, may be barred by a deed, surrender, or articles, but not by will. There is no reason, however, why it should not be barrable by will. It does not fall .under the principle of recoveries, and the fiction of a recompense to the issue. It may be barred inter vivos directly. Why should not the remainder man be equally barrable, and, where there is no fictitious equivalent, why should a will be deemed a conveyance inferior to articles ? The law on this point does not appear to be settled in the United States. It will therefore, prob- ably be determined finally in analogy to principle. Even in England the question cannot be considered concluded. Estates par autre vie, and renewable leaseholds con- > taining covenants for perpetual renewal are much more common in Ireland than in England or the United States. They are likely, however, to become here in the progress of society a more usual form of lease than is the case at present. The will of a joint tenant is void, unless he survives his co-tenants. Even then it will pass only the landed interest he had at the time of making the will, if made in England before 1 Vict., c..26, or in any of the States now where wills of realty speak from their date. As joint tenants were at common law seized per tout as well Simper mi, it is strange that their will could not pass the jus accrescendi prospectiv^ely. Yet such was the law. At present, however, where a will speaks from the death of the testator, unless the context pro- vides to the contrary, after-acquired interests pass by the instrument. CHAPTEE II. GENERAL PRINCIPLES OF TESTAMENTARY CONSTRUCTION. § 1. Principles of American adjuddcation. As equity bears an analogy to law in its deductions, though not in its data, so the Araerican law of -wills may be regarded as an equitable interpretation of the correllative English rules. A knowledge of these is, consequently, necessary for the practitioner here. But he should regard them aS guides, and not as masters. Their philosophy and sense bind our courts, but not their occasionally technical rigidity and frequent close similarity to rules governing the construction of deeds. The American tribunals, therefore, will be guided by the English cases only as regards leading principles. The English authorities will afford grounds for pre- sumption and rules for direction ; but the least positive evidence to the contrary in a will must generally, if not, indeed, always, neutralize in America any mere rule of common-law construction. The general rules relating to the construction of wills are, however, in the main, the same in the United States as in the United Kingdom. The leading excep- tions appear to be — 1, the rule in Shelley's case is not so strictly followed in the United States ; 2, construction cypres is not usually adopted in behalf of charities; and 3, semhle, precatory trusts are not so readily enforced ; while, 4, parol evidence is more freely admitted. The PKEOEDENTS. 23 last exception, however, is daily becoming moro and more curtailed.^ It is a settled rule of interpretation in the Supreme Court of the United StateSj as regards titles to property in the different States, to follow the statutory and unwritten laws of such States.* But, on the construction of wills, the Supreme Court takes independent ground, and may disregard the decisions of State courts.* In Cornish v. Wilson,* on the other hand, the court con- sidered the case of Fenwick v. Chapman^ to be erroneous, and held that the decisions of the Supreme Court of the United States,, construing the local laws of Maryland, are not conclusive authorities for the State courts. The courts seem to take for guides in construing a will^ — 1, decided cases; 2, rules of law ; 3, rules of test- amentary construction ; 4, the whole text of the will ; and 5, the particular passage. These are the main helps to the construction ; and, though equally necessary to be considered, their relative practical force is perhaps in the order mentioned. But, as precedents rarely apply to wills drawn by laymen, and as the context predomi- nates over common law rules of construction, it is in the grammatical sense of the whole document that the key to the difficulties of testamentary interpretation is most usually to be found. § 2. Precedents, The first rule of testamentary construction, however, is that courts must abide by decided cases. To these any supposed intention of the testator to 'Euston V. Euston, 3 Ball. 244; State «. Nicols, 10 Gill. & J. 27; Inglis «.. Trustees of the Sailors' Snug Harbor, 3 Pet. U. S. 117, 118. = Pollard ®. Dwight, 4 Cranch, 429. ^ Lane «. Vick, 3 How. U. S. 464. * 6 Gill, 299. ' 9 Pet. U. S. 461. 24 TBSTAMENTAET COKSTRXJCTION. the contrary must give way. Therefore, where a long series of decisions has attached a fixed meaning to cer- tain phrases, such meaning, and not the popular sense of the terms used, will be adopted by the court,^ unless the context is clear to the contrary.'* Precedents, how- ever, have paramount weight in a testamentary cause only when they are strictly analogous,* § 3, Itules of law. With respect to rules of law, such as fall properly within the scope of this work will be found discussed in the chapter on void testamentary gifts. § 4, Mules of construction. The rules that regulate the construction of wills are almost identical with tho§e appertaining to contracts, or executory articles, as distinguished from final convey- ances. Indeed, where a legal phrase occurs in a will, it will be construed exactly as if it stood in a deed, pro- vided that the testator does not in some other part of the will show an intention that the legal phrase is not to be understood in its technical sense. Accordingly, Sir Edward Coke says, of the relations of testamentary to common law, " I have learned this good rule, always to judge, in respect to wills, as near as may be to the rules of law.* 'Brown ». Lyon, 6 N. Y. (2 Seld.) 419; Kingsland «. Rapelye, 3 Edw. 1. = Bradhurst «. Bradhurst, 1 Paige, 331 ; 1 Abb. N. Y. Dig. 381 ; Lambert V. Paine, 3 Cranch, 134; Carr «. Porter, 1 McCord, c. 7J, 72; Ide i;. Ide, 5 Mass. 501. ^ ' Lyon «. Acker, 33 Conn. 325. ' 1 Bulst. 130. RULES OP CONSTRUCTION. 25 Almost all rules of intei-pretation, not of a restrictive nature, that are applicable to deeds, equally apply to wills. For instance, the maxim that a document may be incorporated in a deed by reference, is equally appli- cable to a will. The manuscript referred to, so far as its contents are adopted by the will, becomes thus part and parcel thereof, and is supposed to be executed when the will itself is completed with due ceremony. The maxim that the exclusion of one person or thing is the inclusion of another, is also often acted upon by the courts when interpreting wills. Therefore, if a younger child is excluded from a share by reason of his becoming elder before a given period, his becoming an eldest child afterwards does not deprive him of his share. A little observation applies to the converse doctrine, that the inclusion of one is the exclusion of another ; and, indeed, to every rule of interpretation ap- plicable to contracts as distinguished from conveyances at common law. But, doctrines of tenure, and restrictive or technical rules of construction, such as the necessity for using the word " heirs " in order to pass a fee, do not apply to wills. The benignant principles used for interpreting deeds are still more liberally applied to wills. But the negative and restrictive rules that fetter the construc- tion of the former class of instruments are not strictly enforced in respect to wills. Testamentaiy construc- tion, properly so called, therefore, relates to those technical rules, which the courts, when expounding wills, do not wholly ignore, but modify ; as, for instance, when they interpret the phrase " heirs of the body " to mean first and other sons taking by purchase. A cy pres construction is sometimes applied to deeds, in order to exclude a false demonstration, or to impart certainty to a seemingly uncertain gift. Yet .the 26 TESTAMENTARY COUSTEUCTION. peculiar testamentary rule usually termed cy pres is inapplicable to deeds. In these instruments a fee tail can only be created by the express words " heirs of the body," or the few other phrases that have a similar legal significance. A cy pres construction, indeed, is also deemed inapplicable to personalty and to estates in fee simple^ though if the doctrine be rightly expounded in Pitt v. Jackson,* this limitation of its scope is contrary to analogy, if not to strict principle. This restriction of cy pres construction,' however, as settled by decided cases, indicates the true key to the nature of testa- mentary limitations. They are essentially executory, or contractual, and will be construed as such, although some of the parties has an " equity," properly so called, or anything more than a strict legal right, such as that for which, if it arose under a contract, a court of law would give damages, but equity would give no specific relief. The executory character of a claim under a will, however, is not one of a definite nature, such as arises under marriage articles where the intention of the fraraer of the articles is undoubted. Therefore, the . rule in Shelley's case is applied more freely under wills than under marriage articles. But the essence of the claim is still executory, so far as that the text of the will is construed by the courts just as if the document were a contract in equity. Words are taken strongly against the grantor in a will as in a deed. Hence have sprung the rules which authorise the transposing or implying of words, and which favor the vesting and indefeasibleness of estates. The rights of the heir are only considered with extreme favor when the question arises between him and the ' 3 Bro. C. C. 51 ; Routledge t). Doi'ril, 3 Yes. Jun. 857. RULES OF CONSTRUCTIOK. 27 residuary devisee on accotmt of a partial failure of the testator's disposition, or else is a remote result of that disposition, as when the contest is between the heir and the next of kin under a trust to convert. Indeed, if the direction relate to personalty, the next of kin retains any portion not required for the purpose for which conversion is directed. The heir is favored only in respect to rules of law and incidents of property, but not in respect to rules of construction. An instrumei^t may operate as a deed in one part and as a will in another.^ As to the distinctions be- tween a deed and a will, see Meek v. Holtom.^ Nevertheless, general rules for the construction of wills, no matter how philosophically compiled these rules may be, cannot be of the same degree of use as rules for the construction of deeds. The strict demand of the law for formal conveyancing inter vivos produces a corresponding supply of drafts, which, as a rule, vary only within definite limits from the prescribed models. But the necessary liberality of the law in construing wills, has opened the flood-gates of legal chaos ; and both the religious and the secular purposes of the testator are often wholly defeated in the subsequent c9nfusion. Yet testamentary rules are not without their uses ; first, as regards all well-drawn testaments, and secondly, because such instruments, even when prepared by ignorant persons, abound with technical phrases copied from deeds. It is to be remembered, however, that in the case of every will, whether well or ill drawn, the intention of the testator, as expressed in the document, will be sought to be effectuated in a more liberal way than if the draft were one inter vivos. » Robinson v. Scbley, 6 G-eo. 515 ; Taylor «. Kelly, 31 Ala. 59. ' 33 Geo. 491 ; Babb r. Harrison, 9 Eix;h, Eq, 111. 28 TESTAMENTARY CONSTRUCTION. No general rule, of construction, therefore, when ap- plied to a clause in a will, is without Its exception, if the context is sufficiently strong to the contrary. This is always allowable in a will, though not in a deed. General rules, therefore, general words, and particular terms, are all controlled by the guiding star of the testator's lawful intent,^ which varies in almost every particular case. The only perfect barrier against liti- gation under a will is a case exactly or essentially in point. Case law is thus virtually the whole of testamentary jurisprudence. A will, statute, or other document, is construed according to the primary sense of the words used, except where a rule of law, the context, external cir- cumstances, or a rule of construction is inconsistent with such interpretation.* As, then, the words in a will must, under the con- ditions just specified, receive their primary or gram- matical import,^ an heir-at-law will not be disinherited,* a. common law estate will not be construed an executory devise,* a vested estate will ndt be construed as contin- gent,* nor will the primary liability of the personalty to debts^ be shifted, unless such is the manifest and undoubted intention of the testator. Greneral legacies, too, are favored rather than specific ones.^ Whether an adjective in a will refers to the last sub- • stantive or not depends on the intention of the testator. ' Wylie 11. Wylie, 1 De. G. F. and J. 410 ;. s. p. 6 Jur. N.S. 359. ' Cromer v. Pinckney, 3 Barb. Oh. 466 : Grey v. Pearson, 6 H. L. Cas. N. 8. 61. » Annable v. Patch, 3 Pick. 363. * Hayden «. Stoughton, 5 Pick. 536. ' Hawley v. Northampton, 8 Mass. 37. ° Dingley v. Dingley, 5 Mass. 535. ' Seaver v. Lewis, 14 Mass. 87. ' Foote App. 23 Pick. 803 ; Briggs v. Hosford, 33 Pick. 389. INTENTION. 29 The general rule that the reference is to the last ante^ cedent is inapplicable to a description consisting of several particulars.^ In such cases the reference gener- ally qualifies the whole series.** Punctuation may be regarded as a guide to the con- struction when no other means of solving an ambiguity can be found. But if itself is the source of the ambi- guity, it is then unimportant,* and will not be suffered to confuse a construction otherwise clear. These observations apply to wills the meaning of which is sensible or applicable in several different senses to the testator's circumstances. For the rules regulating the admission of parol evidence, where the will is not in any primary sense of its terms applicable to the testa- tor's circumstances, the reader is referred to - the pre- ceding treatise. § 5. Intention. The intention of the testator, indeed, is often said to be the polar star to the interpretation of his will.* The testator may make his glossary in the will itself, and define the terms he employs.^ His directions, however, it is to be remembered, cannot contravene a rule of law, as that a tenant in tail is not to have power to disentail the land, or that a tenant in fee is not to alien it. It is the legal, not the actual intention of the testator, there- fore, which is the key to the construction of his will.* Lasher v. Lasher''^ is no authority to the contrary, as it ' Hunter v. Hunter, 17 Barb. 35, 85. '' lb. 'Sweet V. Geisfinheimer, 3 Bradf. 114; Arcularius v. Geisenheimer, 3 Bradf. 64. ■ ' See Cromer « Pinckney, 3 Barb. Ch. 466 ; Mutter's Estate, 38 Penn. 814 ; 4 Kent's Comm. 535 " 4 Kent's Comm. 636, note; see 11 Moore's P. C. C. 536. ' Martindale ®. Warner, 15 Pemi. 471. ' 18' Barb. K Y. 106 ; see Robertson x. Johnston, 24 Geo. 103. 30 TESTAMBNTAEY CONSTRUCTION. applies merely to tlie mode of creating an estate, and not to determining its permanent incidents.^ The lawful intent of the testator, however, as to each gift or power is, in practice, the cardinal rule for the construction of wills. To that intent, all inconsistent and incongruous expressions must yield.^ But the intent is often to be inferred, not from a part of the instrument, but from the whole of it.^ The intent is to be gathered from the will only.* But the whole document will be considered in its bear- ings upon each clause, and effect will be given to each of the dispositions unless it is entirely repugnant to some other clause.®. The clause which least effectuates the testator's general intention will then be expunged.* If both are equally important, the latter prevails. The introductory clause is a good key to the intention, pro- vided there is an actual clause corresponding with it.'^ Sometimes, even witho^ut an actual disposition,, the introductory clause operates as much by implioatiop-^ A subsequent clause, referring to a supposed pre- ceding provision, which, however, is not in ' the document, will often, too, amount to a disppsing clause by implication.* So, if a clause will not be reasonable unless it be supposed the testator intended to make a corresponding disposition of other portions of his property, such dispositions will be implied.^" '■ See Stockes -v. Tilly, 1 Stockt. N. J. 130. ~ ; » Finlay v. King, 3 Pet. 347 ; Smith ®. Bell, 6 Pet. 68 ; Lane v. Vick, 8 How. 472 ; Kip ». Kip, 3 Pa. 366 ; Byrcl v. Byrd, 3 Brock, 170. ' lb. ' Jackson «. Luquere, 5 Cow. 331.. ' Ai cularius V. Geisenheimer, 3 Bradf. 64 ; Sweet v. Geisenheimer, Id. 114. " Kane v. Astor, 5 Sandf. 467. ' Earl V. Grim, 4 Johns. Ch. 494. = 18 Ves. 41 ; Marsh v. Hague, 1 Edw. 174. ° Hyatt V. Pugsley, 33 Barb. 385. " Eathbone v. Dyckman, 3 Paige, 9. INTENTION. 31 The whole instrument has frequently thus to be considered when any part is under interpretation.^ Yet, to pass a fee, an introductory clause will not be sufficient, where the words of the conveying clause do not in their ordinary -import convey such an estate.* But if the introductory clause in a will indicates an intention on the part of the testator to dispose of his whole estate, this will render a subsequent general devise a fee, if there be a connection between the two passages.^ Unless there is such connection, only a life estate passes, except where the devise itself contains adequate words, or a local statute applies to alter the rule.* The old rule, however, is thus altered by statute infeveral of the United States, so that a general devise of land, without any words of limitation, passes the testa- tor's whole interest. A similar rule was established in England by 1st Vict. c. 26. The testator's intent, however, is to be gathered not metely from the words used by him, but from the words as defined by the law of the. land,® or of his domicile, sO,J10r as the will relates to personalty.^ This rule is, afi^r all, subject to any meaning imposed on his words by the . testator, either directly or by the context. The mle, however, is valuable as showing that a tech- nically-drawn will shall be construed technically, sub- ject only to the testator's primary intention,'^ of which no doubt the use of technical words is itself some ' Kip V. Kip, 3 Paine, 36b ; Stanley v. Colt, 5 Wall, 119 ; Gardener ». Wfegner, Baldw. 454. = Wright V. Page, 10 Wheat. 304. ' Van Derzee v. Van Deriee, 30 Barb. K T. 331. *BeaU V. Holmes, 6 Har. & J. 305^ Finlay v. King, 3 Pet. U. S. 346. ' Pennoyer v. Sheridan, 4 Bl. C. C. 316. ° Harrison ». Mxon, 9 Pet. 483. ' Smith V. Bell, 6 Pet. 68. 32 TBSTAMENTABT OOKSTEUCTIOK. evidence. But no part of. the testament will, if possiUe, be held void for uncertainty/ or overruled by another part. A fortioo-i, an express limitation is not controlled by implications drawn from other provisions in the will, if the latter can, by any fair intendment, be recon- ciled with th,e former.^ The presumption in favor of a technical use of technical words will also be sacrificed in behalf of the general intent.* Thus, the word inherited may be applied to lands devised or conveyed by an ancestor.* On the other hand, directions merely subsidiary to the general purposes of a will can rarely, if ever, have any influence on the general construction of the docu- ment.^ As the rules of law will govern where the Construc- tion is silent or ambiguous, it follows that a knowledge of conveyancing is just of as much use to the testament- ary lawyer as it is to the practitioner in other branches. The power of the testator to override any rule of con- struction is unquestioned. But testators and their draftsmen do not always know how to apply this power. The result, therefore, is not unfrequently as in Perrin v. Blake,* that they bind themselves hand and foot to common law rules. With the exception, however, of doctrines relating either to parol evidence or to principles of public policy, every rule of construction referred to in these pages operates only where thfe context is silent or doubtful on the particular point in question. Sailors' wills are in some respects exceptions to the ' Kip ■». Kip, 3 Pa. 366. " Ward ». Amory, 1 Curt. 419. " De Kay v. Irving, 5 Den. 646. * lb. ' McUonougb v. Murdock, 15 How, 367. » 4 Burr, 2579 ; 1 W. Blackst. 673. DISTINCT GIFTS. 33 ordinary rules and presumptions by wticli. the real intention is to be ascertained.^ § 6. Distinct gifts. m A testator is presumed to have an additional pur- pose for each additional expression^ and to intend such a meaning as will give most effect, io the context.* Every clause, therefore, will, if possible, be so con- strued as to be rendered operative itself, and to allow the other dispositions to be operative also. ■ The rule that every clause in a will is to have some force, if possible, is well illustrated by an express charge of a mortgage debt on. the land ^ mortgaged. This express charge makes a devisee of the mortgaged land take it subject to the mortgage.* Unless the personalty was thus exonerated, the clause referred to would have no force. But a construction which alters the relative liabilities of the heir and the executor gives the charge a peculiar force, which it would not otherwise have had. So, a direction to pay debts implies that they are charged on the land, else the clause will be inoperative.® Mortgaged land is at present in England, and in some of the United States, the primary fund for pay- ment of the mortgage debt.® Part of a void will, or of a provision therein, will be upheld, if it can be separated from the unsound parts consistently with the testator's general intention.'^ To ' Sherry v. Lozier, 1 Bradf. 437. " Oddie V. Woodford, 3 Myl. & Craig, 584. ' 3 Jarm. 63 ; Jotson's Case, Cro. Eliz. 576 ; Leigh v. Leigh, 15 Ves. 93. * ETans V. Cockeram, 1 Coll. 438. ' Shallcross v. Finden, 8 Ves. 737. ° See infra, chapter nineteen, on " Charges on Land." ' Oxley V. Lane, 35 N. T. 340, Ct. of App. 34 TESTAMENTARY CONSTRTJCTIOIT. such primary purpose a secondary intention, if incon- sistent therewith, must always yield ;^ and of two prob- able intentions that one will be adopted which prefers, the kin of the testator to strangers,* , The courts, however, will follow judicial authority, and not conjectural interpretation, where the clauses in question are identical in language.* § Y. Equitahle interpretation. The construction of a will is in the main the same •at law as. in equity. The Court of Chancery has always in England supplied, under certain circumstances, a surrender to the use of a will of copyholds, and our courts of equity will here, as in England, exercise their whole machinery in aid of discovery,* so that the equi- table jurisdiction is indirectly larger than that of law in- testamentary matters. But, unless there' is some col- lateral equity or presumption in question, the construc- tion of a will is essentially the same in all courts.® With the exception of certain presumptions against double gifts,* a coilrt ,of equity has no greater latitude than a court of law in the construction of wills, or the expunging or transposing of the words thereof. This rule has not been impugned since it was laid down by Lord Hardwicke in Duke of Marlborough v. Godol' phin.'' Both classes of courts, however, will transpose and even expunge words and clauses, in order to effectu- ate the testator's intention, as declared in other parts of the will.^ But the document will not be thus modified ' Post ®. Post, 47 Barb. 73. " Downing «. Bain, 34 Ga. 373. ^ Myers v. Eddy, 47 Barb. 363. * See Story Eq. Jur. 1489, 1490. = See nwpra, Part I, 46. ° See in/ra, ch. 34, § 7 ; mpra, Part I, notes to Proposition Seven. ' 3 Ves. Sen. 74 : Luxford's Case, 3 Lev. 135. ° Duke of Marlborough «. Godolphin, 3 Ves. Sen. 74 liBPUGNANOY. 35 where the existing callocation of the words is clear in meaning. A like rule applies to reading the word " and " as if it were " or," and conversely. These varia- tions of the letter of the will can only be n]a:de when the context imperatively requires such modifications, and when without them the whole meaning of the clauses in question would be hopelessly entangled.^ But when these conditions concur, the necessary changes will be made, and the document will be interpreted equitably at law as well as in courts of Equity. Lands were not devisable at common law, but were in equity by way of use or trust. Wills of chattels, too, were expounded only by the Ecclesiastical courts, which, like the Court of Chancery, were presided over by a clergyman. All wills have thus come to be' con- strued ' equitably by every court, while bequests of personalty are still more liberally interpreted than devises of land. In Forth v. Chapman,^ the same clause received a different interpretation, as regarded, land from the meaning put upon the words when applied to personalty. In Beaumont v. Fell,® too, au indistinct enunciation by a dying testator was con- sidered sufficient for a bequest, though, if it were a devise, the court intimated that its opinion might be different. § 8. Repugnancy. In order to effectuate the main intention of the testator, words in a will may not only be transposed or modified in their meaning,* but may even be wholly ' Mortimer v. Hartley, 3 De G. & S. 816; 3 Eng. Law. & Eq. 533. , See G-ray ». Pearson, 6 H. Lds. Cas. N. S. 61. » 1 P. Wms. 663. , . » 3 P. Wms. 140. ♦ Finlay «. King, 3 Pet. (U. S.) 346. 36 TBSTAMENTAET COKSTHUOTION. rejected. The court, indeed, is expected, like a printer, to read any manuscript, or, like a reporter, to give sense to any statement, however incongruous or involved. For these so extensive functions great latitude, is accorded to the! judicial interpretation. For this pur- pose, v\rords of purchase will operate by way of limita- tion, if they can have no effect in their primary sense. The word " children," too, is deemed to be a term of limitation, if those referred to are not in esse at the time of making the ■vfill. This is termed the rule in Wild's Case.^ The general or primary intention of the testator is thus always sought to be effectuated, even at the sacrifice, if necessary, of his particular intention. In other words, as false demonstration will not neces- sarily vitiate a description of the subject or object of a devise, so an incongruous direction as to the mode of devolution will be purged of its surplusage or hetero- geneous elements, and will be moulded into a shape recognised by the law. A common instance of this rule is the construction cy pres of an estate tail in one to whose unborn descendants successive life estates are given, some of which are void for remoteness. Jarman,^ indeed, very justly observes that many of the cases supposed to be decided on the basis- of the cy pres doctrine were merely instances where the rule in Shelley's case was applied, inasmuch as both the general and particular intentions of the testator could be observed by giving the children estates by purchase, and the ancestor an estate in remainder afterwards, as in Doe v. Gallini.* The doctrine, however, is not as Jarman* alleges, " one of the absurdest ever advanced," ' 6 Rep. 17 ; see Allen «.,.Hoyt, 5 Met. 334 ; see infra, ch. 23, § 4. ' Vol. 11, 401, et seq. = 5 Barn. & Ad. 631 ; s. c. 3 Ad, & El. 340. ' Vol. II, 404. TRANSPOSITION OF WORDS. ' 37 when applied as a breakwater against the rule of perpetuity : neither does it seem to be always coin- cident with the rule that technical expressions mxist get their full force unless the context is plain to the contrary. The provision of 1 Rev. Stat, of New York, 748, § 1, it may be added, was not intended to extend the doctrine of cy pres construction.^ § 9. Transposition of words. Words to be transposed must be not merely inoperative where they stand, but must also be incon- sistent with the context. Words, however, will be more readily transposed than expunged, and will be always readily shifted, if this will be in aid of the general intention of the testator, and the words are in- operative while left intact.* Jarman thinks^ that, if a clause conveys any meaning clearly, it ought not to be transposed, even though the clear meaning be an absurd one. But, if it is plainly absurd, this shows that its real ^gnification, as intended by the testator, cannot be clear. It should surely be transposed, if this will effectuate the obvious intention of the testator. At the same time, transpositions of clauses, it must be admitted, are violent phases of judicial construction. If, however, estate A be given to B. and estate C be given to D., while the limitations and description of the lands show that the wrong parcels were given to B. and D., a transposition will be readil)' made.* As to the transposition of words see further Mason v. Jones.^ ■ Lorillard v. Coster, 3 Paige, 172, 327. = See Covenhoven v. Stuler, 3 Paige, 132. = Vol. I, 440. * Mosley ». Massy, 8 East, 149. ' 2 Barb. 329 ; Pond v. Bergh,-10 Paige, 140. 38 TESTAMEKTAKY OONSTRUCTIOK. § 10. Alteration of words. Even an alteration of words is sometimes- made^ by the Court. " All " may be read " any ; " " without issue " may be read "leaving issue ; " " her " may be read " their ; "^ ^' severally " may be substituted for " respec- tively ; " " or" for'" and,"* and conversely. Thua " to A. or his heirs " has often been construed to mean " to A. and his heirs." So, under a gift to A, and " if he die under twenty- one or without issue," or " unmarried or without issue," then, over, the word " or " will be read " and," in accord- ance with the manifest intention of the testator, that the devise or bequest over should only take eifect in case neither contingency should happen.* The principle of these cases is that the reference in the alternative is to persons who would take an interest derivatively through the donee, if he retained the estate by surviving the first contingency.^ In New York, the word " and " has been read " or," in Van Vechter v. Pearson,® and numesrous other cases. Similar rules of construction prevail in all the other States. In Kichardson v. Spraag,'^ the bequest was to such of the daughters or daughters' children of the. testatrix as should be living at her death. " Or " was read " and," so that the children of living as well as of deceased daughters participated in the gift. Jarman® appears to approve of this construction. Yet, it would " Brailsford v. Hey ward, 2 Des. 18. = Keith V. Perry, 1 Des. 353. " ' Say ii. Enslin, 2 Mass. 554. ^ lb. '1 Jarm. 448. " Van Vechten «. Pearson, 5 Paige, 513 ; Roosevelt v. Thurman, 1 Johns. Ch. 230. ' 1 P. W. 434. » Vol. I, 451. EEJEOTING WORDS. 39 seem that the word " or " was purposely used to prevent a lapse to the families of the daughters who might die in the lifetime of the testatrix.^ Thus, in Girdlestone v. Doe,* where a testator bequeathed £40 per annum to A. for life, and, after her decease, to B. or his heirs, it was held that B. did not take the absolute interest, but that there was a substitutional gift to his heirs in case he died in the lifetime of A. That B.'s estate was a remain- der does not seem to affect this question. In reading " or " as " and," and in all similar cases of altering the expression, the main object of such inter- pretation is n'ot to reduce any express or implied direc- tion to total silence. § 11. Rejecting words. If a later clause in a will merely qualifies a pre- ceding one, both can stand.^ « But, if the two passages cannot be reconciled, the latter must prevail, if it is equally relative to the testator's primary intention. As to what amount of mutual repugnancy will lead to the expunging of the prior clause, see Morrall v. Sutton.* Where one clause in a will gives certain property to one person, and a later clause gives the same thing to another, the latter alone, in ' the old cases, was held to take the gift, unless this was inconsistent with the tes- tator's primary intention,^ or the latter limitation had been introduced to prevent a lapse by the death of the prior donee in the lifetime of the testator. Modern decisions greatly incline to regard both donees, as joint beneficiaries. -But, if there is an absolute repiig- • ViAi 1 Cox, 341. = 3 Sim. 335. ' « Sweet «. Chase, 3 N. Y. 73 ; Stickle's App. 39 Penn. St. 334. * 1 Phillips Ch. 533 ; s. o. 4 Bear. 478. ' See Hollins ». Coonan, 9 G-ill, 63 ; Pratt «. Kice, 7 Gushing, 309. 40 TESTAMENTABT COlJfSTEUOTIOK. nancy between two clauses, and the relative importance of neither can be determined by the general scope of the wiU, and the presumption of a provision for lapse cannot be entertained, the former clause will be expunged. If that clause, however, is more consistent with the genel-al scope of the wiU, then the latter will be rejected.^ Sometimes the Court will expunge words rather than cut down a limitation. As, for instance, in Doe d. Elton V. Stenlake,* where the devise was to A. and her heirs for their lives, the phrase "for their lives" was rejected as repugnant and void. This decision, however, will not be followed except in very similar circum- stances. Probably at the present day, even in England, the word heirs would be held, in a similar passage, to mean children rather than that the limitation for life should be expunged. In the United States, the word " heirs " would be still more readily regarded as a term of purchase.* Of two inconsistent intentions the Court will try to select the one which the testator had probably more at heart.* Expunging a passage, however, is only used as a dernier resort, for, if possible, effect wiU be given to every clause.® § 12. Supplying words. It seems to be an error to suppose that words are ever " supplied," as distinguished from being implied, in a will. All that the Court does in this respect is not to amend an omission or rectify a mistake, but simply 1 See Bartlett «. King, 13 Mass. 537. J" 13 East, 515. ° See infra, ch. 6, " Bule in Shelley's Case.J' ' Malcolm v. Malcolm, 3 Cush. 473 ; Bradstreet v. Clarke, 13 Wend. 603. See Bradley v. Amidon, 10 Paige, 385. ' Parks v. Parks, 9 Paige, 107. SUPPLYING WORDS. 41 to construe provisions so liberally as that the same clause in a deed not executory might not he operative without the addition of more words. Implications in a will are, indeed, often rendered necessary by mistakes of omission. Still, the two things are plainly different: an implication construes the will as it is ; a rectification amends and alters it.^ Where a testator left annuities to two daughters in similar terms, but the annuity to one was liable in a certain contingency provided for in respect of the other, the Court construed the will so as to supply the omis- sion.* But, as a rule, the maxim that the including of one is the excluding of another will apply. Thus, in Mchols v. Romaine,* a declaration that a certain charge should not affect one residuary devisee made the charge affect the rest of the residuary devisees. ^ As to rejecting words, see further. Pond v. Bergh.'' Under a devise to A., and the issue male of his body, and, if he die without issue of his body, over, the word male was supplied before the second word " issue;"® "Words, however, will be supplied as sparingly as possible, and by no means with a view of effectuat- ing the whole presumed intention, of the testator.® Yet the words " die," " leaving," &c., and the pronouns, are often supplied, or rather inferred from the context.'' Where a will is numbered into sections, words of limitation at the end of a section will be more readily » Hay V. Earl of Coventry, 3 T. R. 83. " Stewart «. Chambers, 3 Sandf. Ch. 383 ; see Drake v. Pell, 3 Edw. Ch. 351 ; Pond v. Bergh, 10 Paige, 140 ; Carter v. Bloodgood, 3 Sandf. Cb. 393. ' 9 How. Pr. 513. < 10 Paige, 140 ; Grim v. Dyar, 8 Duer, 354. ' Tuck V. Frencbam, Moore, 13 pi. 50. " Hamilton v. Boyles, 1 Brev. 414. ' Brown v. Brown, 1 Dana, 41 ; Lynch i: Hill, 6 Munf 114. • 42 TESTAMENTAET CONSTEUCTION. applied to all the gifts in the section than if the will were not so numbered into parts.^ § IS. .Misdesc7'iption. — False demonstration. An addition of certain erroneous particulars — false demonstration, as it is termed — 'to a description other- wise perfect, produces no ambiguity if the gift is applicable only to one person and thing.^ For, such ■words being inapplicable to any subject, their rejection does not affect the construction. Therefore, a bequest of stock in the A. Bank has been held to pass stock in the B. Bank ; as the testator had no stock in the former bank.^ So, if real property is described as personalty, it may, nevertheless, pass. Thus, ih Woods v. Moore,* it was held that a devise of land would pass a mortgage on it if the testator had no other interest in land. So a bond described as given to O. for L.'s use has been held a sufficient description of a bond executed by S. and delivered to O. as agent "for the use of L.^ A false demonstration is innocuous, and will be expunged only when the remainder of the description is sufficiently accurate. Otherwise the whole clause is, of course, null and void.® It is laid down in Smith v. Smith'' that no extent of misdescription will neutralize the gifts, if the will, besides the false demonstration, contains sufficient marks of identification. This position seems irrefrag- able. As to false demonstration, see further. Lush v. Druse.^ ' Stevens v. Snelling, 5 East, 87. " Woods ». Moore, 4 Sandf. 579. ° Roman Catholic Orphan Asylum ». Emmons, 3 Bradf. 144. * 4 Sandf. 579. ' Smith 1). Wyckoff, 3 Sandf. Ch. 77 ; 3 Bradf. 393. •' Jackson v. Sill, 11 Johns. 301. ' 4 Paige, 371. » 4 Wend. 313 ; Worthington «. Hylyer, 4 Mass. 196 ; Blague b. Gold, Cro. Car. 447 ; Davis ». Rainsford, 17 Mass, 310. UNCERTAINTY OF SUBJECT OF GIFT. 43 § 14.. JJacertainty of subject of gift. If the subject or object be once suificiently identified in any legal way, either by construction, or parol, false additions will be inoperative.^ A misnomer of a coun- ty, parish, or street, or a misdescription of a tenant is also unimportant.® A misdescription of the interest, as calling a leasehold freehold,^ or the conv.erse* error is unimportant where the testator has no other but the misdescribed property. A devise of land by name, and described as situate in A. county, will pass the whole of the land, even though it is not wholly situate in A. county.® A deVise of " all my homestead farm in D., being the same farm whereon [ now live, and the same which was devised to me by my father," will pass the whole of the home- stead farm, though it appears that a part of it was not devised by the father.* In Bowman v. Milbarike,'' the limitation " I give all to my mother," was held to be void, the word " all " being indefinite. In Mohun v. Mohun^ a like decision was arrived at. These cases would hardly, however, be followed now. Even in an early case, Taylor v. Webb,' ' Drew V. Drew, 8 Foster (N. H.), 489; Blague «. Gold, Cro. Car. 447, ■ 473. ' See Dodson v. Green, 4 Dev. 488 ; Hastead v. Searle, 1 Ld. Eaym. 728 ; Brownl. 131; -supra, Part I, p. 133 et seq. ' Denn d. Wilkins ®. Kemeys, 9 East, 366. * Day ». Trig, 1 P. W. 386. " Hammond v. Ridgley, 5 Harr. & J. 245 ; Dorsley v. Hammond, 1 Id. 190. ' Drew V. Drew, 8 Foster (N. H.), 489. See Woods v. Woods, 3 Jones Eq. N. C. 420 ; Colpoys v. Colpoys, Jacob, 464 ; Fisher's Digest, Title Will, § 3 ;* Doe d. Jersey «. Smith, 2 B. & B. 553 ; Goode v. Goods, 23 Mo. 518. ' 1 Lev. 130. ' 1 Swans, 201. » Styles, 301, 307, 319., 44 TESTAMENTARY COKSTRUCTIOH. the words, " I make my cousin, A. B., my sole heir and my executor," passed the testator's property to A. B.^ But. a bequest of "some of the best of my linen "^ would even at the present day be void for uncertainty. So, also, would a request that a handsome gratuity be given to a certain person.^ Yet a definite devise out of a larger interest is good, as, for instance, a devise of two out of four acres ; and the devisee shall elect.* A devise of close A., the testator having two closes of that name, was held void in Richardson v. Watson.* But, parol evidence is received to identify the close meant. If, however, no such evidence can be forthcoming, the devise is void, even at the present day, when gifts are rarely, or never void for uncertainty. The phrase " what shall be left " will not be deemed void if relating to furniture or other articles that are subject to wear and tear, nor semble where the property, no matter of what kind it is, has been previously limited to another for life.* So, if "what is left " means what is unappointed under a power given to the tenant for life." The older cases are all opposed to' such readings, which, however, would prob- ably be followed in any very doubtful case, even though not falling strictly within the principle of any of the later decisions. ' See Eothmaler «. Myers, 4 Des. 315 ; Trippe ». Frazier, 4 Har. & J. 446. " Peck V. Halsey, 3 P. W. 387. ' Jubber v. Jubber, 9 Sim. 503 ; see Jones d. Henry u. Hancock, 4 Dow. 145. ^ Grace Marshall's Case, Dy. 381 a. n. See Hobson «. Blackburn, 1 My. & K. 574. - 4 B. & Ad. 798. • Cooper t>. Williams, Pre. Ch. 71, pi. 64 ; Gibbs v. Tait, 8 Sim. 133. ' Surman v. Surman, 5 Madd. 133. UXCBETAIKTY OF OBJECT OF GIFT. 45 § 15.' Uncertainty of object of gift. A devise to one of the sons of J. S. is void for uncertainty.^ Yet a power to appoint to, any of tlie sons of J. S. will be, in default of appointment, executed in favor of all equally by the Court. A devise to twenty of the poorest of one's kindred is void for uncertainty.^ A devise to a voluntary society passes an interest to the then members.* Indeed, it would not be safe at the present day to rely upon any of the old cases with respect to the question what invalidates a gift for uncertainty.* ^ A devise, however, to one's heir-at-law or next of 'kin would probably now be not held void.^ And a devise to such persons as shall be testator's partners at the hour of his death has been held valid,^ Under a bequest to Robert, fourth son of B., the third son, whose name was Robert Henry, was held to take, the name of the fourth son being John William.'' In Wood V. White^ a testator bequeathed a legacy to J. Wood. Parol evidence was accepted to show that George Wood was the person intended. Here the will was insensible with reference to surrounding facts. But, if there was a J. Wood known to the testator, parol evidence should be excluded. ' See Strode v. Lady Falkland, 3 Ch. Rep. 183 ; McDermotts. United Ins. Co. 8 Serg. & R. 607. " Webb's Case, 1 Roll. Ab. 609 (D.) 1. ' Bartlett ». King, 13 Mass. 537. ■• See 1 Jarm. 833, 824. " Lowndes v. Stone, 4 Ves. 649. See 7 Sim. 363. " Stubbs «. Sargon, 3 Keen, 355. See Prestwidge v. Groombridge, 6 feim. 171 ; Powell «. Davies, 1 Beav. 533, ' Gillett ». Gove, 18 W. R. 433, ' 33 Me. 340, in Eq. See swpra, Part 1, notes to Propositions 3 and 5. 46 TESTAMENTAEY CONSTRUCTION. Under a bequest to Jolrn and Benedict,^ sons of A.B,, a son named James (as there was no John) was held entitled.^ The words, " members of nay family -' have been considered sufficiently definite.* A bequest to a society named as of London was held, in re The Clergy Society,* not to apply to a society of the name in the bequest, but which was out of London, and although there was no society at all of the name in the metropo- lis. Judge Redfield® thinks it was a case of false demonstration, and this appears to be its true nature. The decision, however, cannot be deemed of much authority. The case of Stringer v. Gardiner^ also appears to be one fit for the reception of parol evi- dence. A name by repute is a sufficient description of a person.'^ Devises to corporations have been construed rather strictly in those cases where corporations may legally take land by will.* Yet*it is likely that at the present day they would receive the same benignity of interpretation as if they were private individuals. A testator gave to the School Ooi^™issioners aiid. their successors of " South Farnham district, Essex county, for the schooling of the poor children of that district, $1,000, to be put out at interest, and the ' Smith B. Coney, 6 Ves. 43 ; Holmes v. Custance, 13 Ves. 379 ; Garth V. Meyrick, 1 Bro. C. C. SO. ^ See Dowsett v. Sweet, Amb. 175 ; 1 Jarm. 330 ; Smith «. Smith, 4 Paige, 371; s. c, 1 Edw. 189; Trustees v. Peaslee, 15 N. H. 317; Woods V. Moore, 4 Sand. Sup. Ct. 537 ; Winkley v. Kaime, 33 N. H. 368; Douglas «. Blackford, 7 Md. 8. In re Bicket's trust, 3 Eng. Law & Eq. 66. ' Hill V. Bowman, 7 Leigh, 650. * 3 K. & J. 615. " Vol. I, 585. ' 5 Jur. N. S. 360. See 1 Rejif. 585. ' Sutton «. Cole, 3 Pick. 333 ; Newthway ». Ham, Tamlyn, 316 ; Parsons ' ». Parsons, 1 Ves. Jun. 366, Sumner's notes. See Standenu. Standen, 3 Ves. Jun. 589. ° Attomey-General «, Sibthorp, 3 Russ. & My. 107. TJNOERTAmTY OP OBJECT OF GIFT. 47 interest only to be applied for the schooling of said poor children." There were School Commissioners of the county Essex, of whom the testator was one at the time of his death, but they were not incorporated. There were no more school commissioners of South Farnham district, nor was there any such district, though there was an ancient parish of the name. The bequest was held void.-' The case of Janey v. Latone is hardly reconcilable with Minot v. Boston Asylum.^ In this case the legacy was to the " Boys' Asylum and Farm School." There being no institution or association of any similar name, except a body incor- porated by the name of " The Boston Asylum and Farm School for Indigent Boys," this institution got the legacy.^ Owing to the admissibility of parol evidence to iden- tify a beneficiary in cases of ambiguoujt description, a gift so limited very rarely fails.* The law of wills is, in the respects we are now con- sidering, based exactly on the same principles as the law of deeds, except, of course, that in point of fact gross misdescriptions rarely or never occur in instru- ments made inter vivos. The tendency of the courts both in England and the United States is to deal more and more benignantly every day with loosely drawn ' Janey v. Latane, 4 Leigh, 327, See Telfair v. Home, 3 Rich. Eq. 335 ; Carter «. Balfour, 19 Ala. 814. = 7 Met. 416. ^ See General Lying-in Hospital v. Knight, 11 Eng. Law & Bq. 191 ; McBride v. Elmer, 3 Halst. Ch. 107 ; Baldwin v. Baldwin, 3 Halst. Ch. 311 ; Calhoun v. Furgeson, 3 Rich. Eq. 160 ; Trustees ii. Peaslee, 15 N. H. 317 ; Button % Amer. Trust Soc. 33 Vt. 336 ; St. Louis Hospital Asso- ciation ®. Williams, 19 Mis. (4 Bennett) 609. * Smith V. Smith, 4 Paige. See Doe d. ■». Huthwaite, 3 Moore, 304 ; s. c. B. & Aid. 633. 48 TESTAMENTARY CONSTRUCTION. wills, and to strive to effectuate the intention of testa-' tors, if this be at all practicable.^ ' The early cases on the law of wills are, in the main, unreliable at the present day. Where, as in Lord Cheney's case, they have furnished a text that has been acted upon in subsequent decisions, the old authority has even improved by time. But an old will case, standing alone, is at present almost valueless. This is peculiar to the law of wills. As regards conveyancing inter vivos, the old common law rules apply to every new phase of events, except so far as statute law has otherwise provided. Wills, on the contrary, being con- strued according to the intention of the testator, have not been interpreted according to any strict general rules ; or rather, indeed, the principles of testamentary interpretation have been altered, and th,e courts will now accept p^ol evidence in many cases where it would have been formerly held to be inadmissible. The old decisions, too, on other points, such as the meaning of the word " family," " relations," tfec, would not be followed at the present day. Scarcely any testamentary gift will be held void at present. Besides, then, the inherent mutual diversities of cases, the law of the construction of wills has gradually varied, both with respect to intrinsic and extrinsic evidence. Old testamentary cases, therefore, must stand on their merits. By themselves they are not now of much or, indeed, of any authority, even in England. They have still less weight in America. Thus in Doe d. Hayter v. Joinville,*^ a devise to the testator's " brother and sister's family " was held void for uncertainty, inasmuch as there were children of two ' See Broom's Legal Maxims, title, Faha Demoiutratio non nocet cum dc corpore constat; Brewster v. M'Call, 15 Conn. 374. " 3 East, 173. TJNOEETArNTY OF OBJECT 01" GIET. 49 sisters of the testator, one living and one dead, and it did not appear whicli of them was intended. All such difficulties are now aided partly by parol evidence and partly as in Doe d. Hayter, by settled rules of construc- tion as to the meaning of the general expressions used. A gift to the son of A. B.^ is even now-a-days stated in text-books of authority to be void for uncertainty. But it is probable that the American courts would admit of parol evidence rather than construe the gift as void for uncertainty. Jarman himself observes* that a devise to a person sustaining a given character, as to " my brother's son," Gerrish v. Nason, 33 Me. 438 ; Vernon ». Kirk, 30 Penn. 318 ; Clifton V. Murray, 7 Ga. 564. = 7 N. T. Leg. Obs. 153 8. P. 1854; Leacraft v. Simmons, 3 Bradf. 35 ; Nelson ». McGiffert, 3 Barb. Oh. 158 ; Bleeker v. Lynch, 1 Bradf. 458 ; O'Neil v. Murray, 4 Bradf. 311. ' Lord Trimlestown v. D' Alton, 1 Dow & CI. 85 ; s. c. 1 Bligh, N, S. ; H. L. Cas. 427; see Florey «. Florey, 34 Ala. 241. * Comstocfc V. Hadlyme, 8 Conn. 354; Abercrombie v. Abercxombie, 27 Ala. 489 ; Harrison ». Morton, 3 Swan, 461. ' Florey «. Florey, 34 Ala. 341. " 8 K. & J. 357. 56 FEAUD, ACCIDEKT OE MISTAKE. the consideration is contrary to public policy, the whole indivisible contract is void, because the consideration is the foundation of the w^hole matter, and the degree of influence which the bad consideration exercises on the granting party cannot be estimated and discerned . from the other motives. But, if the consideration is good, though some of the covenants contracted for are void and illegal, yet the good stipulations will be enforced, if they are clearly separable from the unsound ones. An action can be maintained for their breach at law, or they can be specifically enforced in equity. For chancery always enforces what is good and definite, if clearly separable from what is void or indefinite. A legacy given by a woman to a person whom she regards as her husband, but who is secretly married to another, is void as fraudulent.^ But a legacy given to a person whom the testator erroneously supposes to be his child is good. So is a legacy to an unchaste wife, and a legacy to the child of a bigamist is not avoided by reason of the bigamist obtaining, as the reputed wife of testator, a gift to herself. Nor will a false affirmation of celibacy or marriage avoid a gift, unless the testator is injuriously affected by such affir- mation.^ § 2. Accident or mistake. A mistake patent on the face of the will is rectified by chancery.^ When the mistake is patent, equity does not, strictly considered, travel outside of the written ^ Digest, Ub. 35 ;' tit. 1 L. 73, § 6 ; Wilkinson v. Jougbin, 12 Jur. N. 8. 330. ° Risbton v. Cobb, 9 Simons, 615. ' Mellish V. Mellish, 4 Ves. 45; Phillips ». Chamberlaine, 4 Ves. 51; Milner v. Milner, 1 Ves. Sen. 106 ; Door v. Geary, 1 Ves. Sen. 355. ACCIDENT OE MISTAKE. ' 57 will, or act on parol evidence at all. The case is rather one oi cypres construction or falsa demonstratio} Equity does not relieve in such cases on the ground of mistake in the general equitable sense of that term,^ or admit parol evidence,* but merely reconciles seemingly incon- gruous passages. A mistake not patent on the will is irremediable. Therefore, parol evidence is not admissible to show that the testator made his will under the erroneous impres- sion that one of his children was dead,* or that the will was in any respect owing to his mistake of facts.® But, mistakes in the description of gifts or of donees may be rectified by extrinsic evidence. In the case of the Earl v. the Countess of New- burgh, the mistake appears not to have been completely or clearly proved. But in Langston v. Langston,* a line was omitted by the person who copied the will for signature. Yet, Lord Brougham, though he inspected the draft for other purposes, admitted that the evidence was not to be received. His Lordship, indeed, should not have looked at proofs forbidden by the law of evi- dence. It is, however, settled that mistakes of the nature of omissions, as distinguished from misdescriptions, cannot be rectified by parol. This was decided in respect of real estate in Andress v. Weller.''^ Neither can an omis- , sion be supplied in respect to personalty by parol and the written instructions given to the scrivener. See ' Danvers v. Manning, 2 Br. C. C. 18 ; see Giles «. Giles, 1 Keen, 693 ; Eatherly v. Eatherly, 1 Caldwell, 461. " Lady Newburgh's Case, 5 Madd. 364. ' Mann v. Mann, 1 Johns. Ch. 331. ' GiflFord v. Dyer, 3 E. I. 99. " 3 William's Ex. (2 Amer. ed. c. 3, § 4, p. 867 ; Part I, mpra^ p. 265). • 8 BUgh, N. S. 167. ' a Green Oh. 604, 608. 58 FRAUD, ACCIDENT OE MISTAKE. also Fawcett v. Jones,^ and Hughes v. Turner,* where it was held that a revoked will could not be examined for light to construe a subsequent unrevoked will. Equity will rectify a clear mistake or omission in a will, if it is apparent on the face of the document, as in the case of the mistake of a figure.^ An omission, how- ever, can never be apparent so as to obtain the aid of the court. For, if it can be spelled out from the rest of the will, it is not wholly unexpressed by the testator, and is not a real case of omission. Parol evidence is admissible to prove that a clause has been inserted, but not that one has been omitted by mistake.* Parol evidence is admissible to show that a will or any other document is not as it purports to be, a fair bona fde expression of the will of the person whose property is sought to be charged by it. Therefore, when a will or any part thereof has been obtained or directly occasioned by fraud, accident, mistake, or in- advertence, it will be annulled by the court, and the intestacy of the testator will be so far established. The parol evidence is admissible to show that the will is not genuine, but not to establish a basis for rectifying the instrument. It will be simply annulled, but not reformed, although if it were a contract it might be . specifically enforced, according to the intention of the parties, as proved by parol. Parol evidence is also admissible to show that a will is void in law, or has been defeated in fact by lapse or ademption. ' 3 Phil. 434. » 4 Hagg. 53. ' Ouseley ». Anstruther, 10 Beav. 453. " See mpra. Part. I, p. 377, et seq. CHAPTER IV. MEANING OF CERTAIN WORDS AND PHRASES. I § 1. Terms of devise. Meal terms. "The primary meaning of a term or phrase, as denot- ing merely personalty or realty, becomes unimportant, if, as is not unfrequently the case, the context shows that the testator used the terms in a different or peculiar sense. Accordingly, the words " devise," " bequeath," " realty," " personalty," " legacy," 20 Wend. 576. • Sands «. Champlin, 1 Story C. Ct, 376. ' Baker v. Raymond, And. 51 ; Jenkins «. Lord Clinton, 36 Beav, 108 121. " 3 Paige, 9. 82 DETISE OF REALTY. with locality, indicates a material and not a legal in- terest.^ The original rule of the common law, however, being unsound, it is sought to be cured by the courts by means of an equally unwarranted straining of slight ex- pressions in the context so as to give the devisee the fee.* A devise of the rents of an estate will pass the fee,^ on account of the use of the word " estate," which always passes a fee, except when the word is obviously used as synonymous with a previous limited gift,* or is incon- sistent with other limitations in the context.^ A devise of premises in fee to A., with the exception of part thereout to B., gives B. the f§e in the excepted part. The rule on this point proves or explains the ex- ception.® A like principle applies to estates given in tbe alternative or upon condition.'^ A devise of land without words of perpetuity will also pass the fee if the introductory clause and frame of the will show that the testator intended to dispose of all his property.^ In Ohio, a devise of " the plantation on which I now live," has been held to pass the fee. And yet, prior to the change in the law ,made by the Revised Statutes of New York, a devise to testator's widow for life, and on her death the land to be " equally divided " between ' 3 Redf. 338. = Fox ». Phelps, 17 Wend. 393 ; 8. c. affi'd, 30 Wend, 437 ; Earl v. Grim, 1 Johns. Ch. 494 ; Van Derzee v. Van Derzee, 30 Barb. 331. " Stewart ». Gamett, B Sim. 398 ; Craig «. Craig, 3 Barb. Ch. 76 ; Pat- eraon v. Ellis, 11 Wend. 359 ; Smith v. Post, 3 Edw, 533. ' Doe d. Clayton, 8 East, 141 ; Doe d. ». Clarke, 1 Cr. & Mees. 39. " Key V. Key, 4 De G. M. & G. 73 ; Martin n. McCausland, 4 Ir. Law, 340. " Doe d. V. Lawton, 4 Bing. N. C. 455. ' See Greer v. Armsteed, Hob. 65 ; Shaillard ®. Baker, Cro. .Eliz. 774 ; Bentley v. Oldfield, 19 Beav. 235. ' Vanderzee v. Vanderzee, 36 N. Y. 331 ; compare "with this case Van Dyke v. Emmons, 34 Id. 186. DEVISE OF BBAIiTT. 83 testator's two sons, was held- to give the sons only life estates.^ In some of the States the terms " property " and " es- tate " have not been construed as liberally as in England, where standing alone they always passed the fee.^ But a devise of land for a permanent purpose — as to estab- lish schools, passes a fee, on the ground, probably, that the legal estate is always commensurate with the trust intended to be raised thereout.* In Jackson v. Housel,* a fee was held to pass under the phrase, " My property, after my debts are paid, I leave and bequeath to my beloved wife, and wish her to educate my daughters." A devise of the use for life, with a power of appointment, was held to give the fee in Jackson v. Coleman ; ^ the rule is different if the power is to dispose of by will only.® A charge also, of course, often enlarged the devisee's estate to a fee in New York before the passing of the Eevised Statutes.'^ As to the effect of ulterior limitations in limiting the quantity of interest of the particular tenant, see Brad- - ley V. Cartwright.® A. devised to his son an estate, W., " to do and dis- pose of as he may think proper." By a subsequent clause he devised estate H. without words of limitation. The will also directed the son to pay certain legacies. A ' further clause devised all the estate of the testator to ' Edwards v. Bishop, 4 N. Y. 61 ; b. p. Jackson ». Bull, 10 Johns. 148 ; liiffen V. Eldred, 3 Barb. 130. ' Pippin V. Ellison, 13 Ired. 61 ; Hurdle v. Outlaw, 3 Jones Eq. 75; see Clark «. Hyman, 1 Dev. 383. ' Bell County v. Alexander, 33 Texas, 350 ; see infra, chapter fifteen. * 17 Johns. 381 ; compare Wheaton «. Andress, 33 Wend. 453. " 3 Johns. 391. " Doe V. Howland, 8 Cow. 377. ' Dumond v. Stringham, 36 Barb. 104. « Law Reps. 3 C. P. 511. 84 DEVISE OF EBALTT. his wife during her widowhood. It was held that the son took a fee in both estates.-^ In Lippett v. Hopkins,^ the^ devise was to A. " and if he shall die without an heir before he shall arrive at the age of twenty-one years, then all that is to him herein bequeathed, to be equally divided amongst hi& brothers and sisters, or their heirs." It was held that A. took a fee simple, with an executory devise over to- his brothers and sisters. The report of this case con- tains rules for construing devises without words of lim- itation, and enumerates the leading cases on this point. In Abbott V. Essex County,' the devise was "if either of my sons, John and Jacob, should happen to die without any lawful heirs of their own, then, the share of him who may first decease, shall accrue to the other survivor and his heirs." The court held that this ' de- vise provided for a definite failure of issue, and that, by way of executory devise, the share of the son. first dying without issue in the life-time of the other, was to go over to that survivor, and that, subject to- this contingency, each took a fee simple. A devise to testator's wife, " for her use and com- fort, and to be disposed of as she pleases, at or before , her decease, when no doubt she will make such disposi- tion of the same among our children, as she may then, think most proper," has been held to give the wife a fee simple, without any trust for the children.* Jarman considers that where there is a devise of both. realty and personalty to trustees, but the trusts declared relate only to the personalty, there is a resulting trust , of the realty to testator's heir. But this is very doubt- ' King V. Ackerman, 3 Black. 408. " 1 Gall. 454 ; 1 St. Circ (R. I.) 1813. » Circ. Mass. 1854 ; 2 Cart. 0. Ct. 136. * Kenter ■!). Jenks, 43 Perm. St. 445. DEVISE 01" REALTY. 85 ful. It would hardly be so decided in America. The case of Dunnage v. White,^ cited by Jarinan, is not really any authority in behalf of the proposition ad- vanced by him. In such cases, the trustees most proba- bly take a fee, and the trusts, too, are charged by im- plication on the realty. This question will be more fully discussed, infra, in chapter fifteen, on " Limitations i>o Trustees." In Engliss v. Sailors' Snug Harbor,* a testatrix de- mised " all her estate, real and personal, wheresoever and whatsoever, in law or equity, in possession, reversion, re- mainder, or expectancy, unto her executors, and the sur- vivor of them, his heirs and assigns, for ever," upon cer- tain designated trusts. It was held, that under the Statute of Wills of New York, all the rights of the testatrix to real estate, held adversely at the time of her decease, passed to the devisees. A devise without words of inheritance, but direct- ing that if any of the testator's heirs, of whom the de- visee was one,' should die without lawful issue, his part should be equally divided between the survivors, im- plies that in case of issue these would take, and thus passes a fee.', In Dumond v. Stringham,* a provision that if the devisee should die during the widowhood of the testator's wife, she should have the property during her widowhood, and no longer, was held not to be inconsistent with an intention to devise a fee. It was held, in Wright v. Page, that " tenement " does not pass a fee.' In Pocock V. the Bishop of Lincoln/ a testator • 1, Jac. & Walk. 583 ; see 1 Jarm. 680, note. ' 3 Pet. 99. ' 18 Johns. 368. ' 36 Barb. 104. ° 10 Wheat. 804. « 3 Br. and B. 37. 86 DEVISE OF KB ALT Y. devised to his son the " perpetual advowson " of tli& living then held by the son. It was held that the son only took a life interest, and that the word " perpetual " related to the quality, not the quantity, of the estate devised. If the son vacated the living or was translated to a see, doubtless the will would then operate. The case would palpably have been one to be elucidated by parol evidence if such could be admitted to explain the quantity of interest intended to be given. The phrase perpetual advowson, however, does not cany the fea if the bequest is to a stranger ; and the question was whether the fact that the donee had already a life inter- est should affect the construction. It must be admitted, that the case can be supported on strict principle. Unless the intention to give a fee is plain, such an estate will not pass.^ The American law thus favors the heir by analogy to the common law rule. Therefore a devise to the testator's wife of " all the rest " of his lands, &c., has been held to give her only a life estate.^ This ruling, however, it must be confessed, is worthy of the era of Perrin v. Blake.* So in Shriver v. Lynn,* the devise was to the testator's brother " E. M., daring his natural life, of 100 acres of land. In case he should have heirs lawfully begotten, I then give and bequeath the 100 acres of land to him, the said E. M., his heirs and assigns forever." It was held that E. M. took a life estate only, which, on the happening of the contingency, might be converted into a fee simple, and not a conditional fee. In Page v. Wright^ the devise was " to M. of all the rest of my lands and tenements whatsoever, whereof I ' Wright ». Page, 10 Wheat. 204. " lb. » 4 Burr. 3579. " Supreme Ct. 1844, 2 How. 43.. -4 Wash. C. Ct. 194,3d Circ. (N. J.) 1822. DEVISE OE REALTY. 87 shall die siezed in possession, reversion or remainder, pro- vided that she has no lawful issue. Item — I give to M., whom 1 also make my sole executrix, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed." It was held that M. took an estate for life only. Yet, the superabundance of general words here, and the implied provision for M.'s issufe, denoted an intention to pass a fee. E.,^ being seized of lands in the State of New. York, devised the same to his son Joseph in fee, and other lands to his son Medcef in fee, and added, " It is my will that if either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor; and in case of both their deaths, without lawful issue, then I give all the property to my brother John E. and my sister Hannah J., aud their heirs." Joseph, one of his sons, died without lawful issue in 1812, leaving his brother Medcef surviving, who after- wards died without issue. It was held that Joseph took an estate in fee, defeasible in the event of his dying without issue in the lifetime of his brother, and that the limitation over was good as an executory devise, and on the death of Joseph vested in the surviving brother Medcef. Under the decisions of the Courts of New York,* such a devise does not vest in A. and B. an estate tail liable to be converted into a fee simple absolute by the statute of 1*786. The limitation over is good as an exec- utory devise, and A. and B. each take an estate in fee, defeasible in the event of either dying without issue in the lifetime of the other. Under a devise of all the estate called Marrowbone, ■ Supreme Ct. 1837, Jackson v. Chew, 12 Wheat. 153; followed, 1828, in Waring v. Jackson, 1 Pet. 570. = 1 Johns. 440 ; 3 Id. 339; 10 Id. 13; 11 Id. 337; 16 Id. 382; 30 Id. 483. 88 DBTISE OP REALTY. in the County of Henry, containing, &c., likewise one other tract of land in said county, called Horsepasture, containing, . Porter, 1 McO. Ch. 60. ' Polk V. Fans, 9 Terg. 309. " Roy 11. Garnet, 3 Wash. 9. ' Lyles «. Digge, 6 Har. & J. 364. ' Findlay ». Riddle, 3 Binn. 139; Guthrie's Appeal, 37 Penn. St. 9, 31. ' McFeely v. Moore, 5 Ohio, 465. , « Steel ». Cook, 1 Met. 383 ; Rev. Stat. c. 59, § 9. " New Jersey Rev. Law, 774. "Rev. Stat. Vol. I, 735, § 38. " Vol. I, 735, § 38. " Dermett v. Dermett, 40 N. H. 498. "Freeborn v. Wagner, 41 (N. Y.), 37; Warfield v. Crane, Id. 448; Sheridan «. House, Id. 569. * " See Brant v. Gelston, 3 Johns, cas. 884 ; 1 Rev. Stat. 735. EULE IN SHELLEY'S CASE, 103 where the context contains nothing to the contrary. It is likely that in those States the rule would not be applied where it is not the word heirs or heir that is used, but •" son," "child," "family," "issue," or some other word of purchase. Issue, indeed, in England is 'considered to be, of its own nature, a word of limitation in wills. It certainly is less of purchase than the terms "son," " child," or " family," and therefore less efficiently resists the rule in Shelley's case. The rule in Shelley's case is in force in Delaware. • But, it is only regarded by the courts there as a rule of construction and intention. In Vermont there is a stat utory system of conveyance. The rules of the common law, therefore, are by analogy to be considered as so far excluded in the construction of wills. In other words, the genius of construction should follow the statutory system of conveyance, and should only regard the use of technical phrases in wills as evidences of intent, and not possessing any cast-iron operation of their own. The reader is referred to a very able judgment by Judge Eedfield, in 27 Vt. 475, and in Smith 6 Pet. 68. " See Herrick «. Franklin, Law Rep. 6 Eq. 593 ; Halloway «. Halloway, Id. 533. ' 2 Russ & Mj. 557 ; see Dott v. Cunnington, 1 Bay, 453 ; qw. contra Swain v. Roscoe, 3 Ired. 300. CHAPTER VII. ESTATES TAIL. § 1. Their nai/wre and mcidents. Tlie greatest defect in the law of England and of some of the United States, is the existence of estates tail. These interests, as a rule, are not devisable unless they have been previously disentailed;, nor are they subject to any charge or conveyance that does not oper- ate so far as a disentailing assurance. An estate tail differs from an estate in fee in de- scending only to the particular heirs indicated. Thus, a devise to A., and the heirs female of his body, escheats if there be no such heir. A female coUatoral heir, not a descendant of A., will not inherit as she would if the devise was to A. and his heirs. So a devise to A. and the heirs male of his body, begotten by his wife B.,will not descend to a son of A. by C, a subsequent wife. A fortiori, the entail will not descend to a daughter or a distant relation of A. as an estate in fee simple would. Besides this peculiarity of descent from the first donee in tail, estates tail are subject to other special in- cidents. Although subject to dower and curtsey, they are not alienable except by fine or recovery. A fine bars the issue. A fine and recovery, or a recovery alone, will bar both the issue and remainder-men. An ordinary conveyance of the land is voidable by the issue. But, a deed of grant of rent charge or of any interest against " common right " is absolutely void on the grantor's death. If, however, he disentail the land, this lets in his charges ; aliter, if the issue disentails. THEIR NATUEF. AND lUOIDENTS. ' 109 I Conveyances, leases, charges and incumbrances by tenants in tail are distinguishable into three classes, viz. : 1, those which are absolutely valid and indefeasi- ble by the issue in iail ; 2, those which may be avoided by him ; and, 3, those which are absolutely void on the death of the tenant in tail, and are incapable of con- firmation by the issue. To the first class belong fines, recoveries, all charges secured thereby, and leases or debts confirmed by statute.. The ^econd class comprises all conveyances of the land except by fine or recovery. The third class consists of grants of incorporeal rights and judgments.^ , If a tenant in tail first execute a rent charge or con- fess a judgment, and then settle the property by a void- able deed, the charges will endure until the deed is avoided by the issue. But if the tenant in tail settle the land by merely creating a term to certain uses, it is doubtful whether the issue in tail, if he takes an estate under the term cannot set it up, and yet avoid the rent charge and judgment, while, if the settlement were in fee, he would be at once remitted, taking a legal estate, and thus the settlement itself would be an- nulled.^ In a deed an entail can only be created by the words " heirs of the body," " heirs of the blood," " heirs of the flesh," &c. Words of inheritance and of procre- ation are both necessary. The estate likewise of the donor must be one of inheritance, and not an estate par autre vie or a term of years. This latter rule applies also to the creation of estates tail by will. A tenant par awt/re vie cannot create a greater estate than he himself owns. Therefore, such estates admit only of quasi en- tails. These may be barred by deed surrender or arti- ' See Co. Litt. Titles " Confirmation," " Estates Tail." ' See 1 Dyer, 51, a, note. 110 ESTATES TAIL. des, but not by will. But the rule that requires words of inheritance for the creation of an estate tail by deed only apply in a will so far that the language used must be capable of implying a limitation equivalent to an estate tail in a deed. Any gift by will, therefor, that will confine the descent to the. issue of the donee, will con- stitute an estate tail special or general, male or female, according to the directions, and may also imply cross- remainders.^ Words of procreation will often be sup- plied in a will. Thus a devise" to A. and his heirs male for ever, or to A. and his heirs males living to attain the age of twenty-one,'' gives A. an estate in tail male. A tenant in tail may commit unlimited waste of every kind, and cannot be restrained by condition from aliening by fine or recovery. As the estate is one of inheritance, it is liable to dower and curtesy, but not to debts after the death of the debtor, except so far as a local statute provides to the contrary. A devise to A. and the heirs of his body, or to A., for life and after his death to the heirs of his body,. vests an estate tail in A. So under a gift to A. and his issue or to A., and if he die without issue then over,. A. takes an estate tail in realty, and the absolute inter- est in personalty in "England and in those States where a restricted meaning of the word issue does not obtain. The word " heirs," if used as synonymous with " is- sue," means "heirs of the body."^ Even in a deed a gift to heirs in the premises may be cut down in the habendum to " heirs of the body," althqugh the haben- dum, as a rule, cannot abridge an estate given in the premises. The distinction is that the habendum may ^ Green v. Stevens, 13 Ves. 419; Doe d. Tremewan «. Permewan, 3 Per. & D. 330. " Albec ». Carpenter, 13 Gush. 383; Appleton «. Rowley, L. R. 8 Eq. 139. ' Albec v. Carpenter, 13 Cush. 383. THEIR KATUEE A^D INCIDENTS. Ill explain the premises and " heirs of the body" are still " heirs." Under a devise to A. and his heirs, and, if he die without issue, then to B., A, takes only an estate tail,^ if there is no local statute on the point. So a devise to A. and his heirs, or heir or next heir,^ or to A. simply, and, if he die without issue,^ remainder to B., gives A. an estate tail. But, if the devise be to the heir male of A.'s body with remainder to his heirs, the issue of A. takes an estate tail, according to the early cases.* The superiadded words varying the descent sefved to show that the heir and nof A. was the stock of the entail. Mr. Hawkins,® however, considers that words of limita- tion have now no more effect than words of distiibution in excluding the rule. This opinion is probably right so far as the English cases are concerned. A devise to A, and his children, he having none at that time, gives A. an estate tail.® A devise to B., if A. have no heirs^ gives A. an estate tail if B. is a- relative of A., for, otherwise, the limitation would be unmeaning. But if A. is a stranger, or a person who cannot be' heir to B., the devise is void for remoteness.'' Under a devise to A., and if he die without heir or issue, the estate ta go to B., his brother, gives an estate tail to A. by impli- cation.® Under a devise by testator to his wife for life, and after her decease to her two daughters, A. and B., to them, their heirs and assigns ; but, in case they should die without issue, that the same should go to and vest. " Hansel! v. Hubbell, 24 Penn. St. 344. " Cuffee V. Milk, 10 Met. 366. ' Hawley v. Northampton, 8 Mass. 3. * Archer's Case, 1 Co. 66. ' P. 186. » Nightingale v. BurreU, 15 Pick. 104, 114. ' Griffiths V. Grieve, 1 Jac. & W. 31. « 8d Circ. Pa. 1818; Willis v. Bucher, 3 Wash. C. Ct, 369. 112 ESTATES TAIL. in their two sisters, C. and D., it was held^ that the devise to A. and B. was a fee tail and not a fee simple, the contingency upon which the limitation was to take effect not being limited to a life in being, but upon an indefinite failure of issue. It was also held that the es- tate given to C. and D. was a vested remainder, to take effect upon the, death of both A. and B. without issue ; that cross remainders in tail were to be implied between A. and B. ; that at common law A, , and B. would take a joint estate for life with several remain- ders in tail lio their issue ; but that, by the Statute of Khode Island, it was turned into a tenancy in common, and that several estates tail vested in them. In ]y[urdock v. Shackleford the devise was as fol- lows : " I lend to my son, W., the tract of land whereon I live during my life, and, if he has children at his death, he may dispose of it as he thinks proper, reserv- ing to his now wife the use of the land for her life, as, long as she remains his widow ; but, if she marry, then she is to have only one-third part. If my son, W., dies without heirs of his body, then the land, with the consideration above-mentioned, to go to my son, Z., &c. It was held that "W. took an executory devise in tail after an estate for life to himself, with remainder in fee to his children living at the time of his death, which ex- ecutory devise in tail was to take effect on the contin- gency of his dying without children living at the time of his death. W. appears to have taken a remainder in detail, and not an executory devise in tail after his life estate ; since, if land be limited to two for their lives, with reiliainder to the heirs of him who dies first, the remainder, nevertheless, vests in the ancestor who dies ' Lillibridge v. Adie, 1 Mass. 324, 1 Circ. E. I. 1816. • ' 4th Circ. Va. 1808, 1 Brock Marsh, 131 ; see Wright v. Scott, 4 Wash. C. Ct. 16. KO MERGER OE ESTATES TAIL. 113 first. W.'s estate is capable of being considered as a re- mainder. It therefore comes under the rule which for- bids a contingent remainder to be ever construed as an •executory devise. § 2. No merger of estates tail. A remainder in fee is very common after a limitation in tail to the same person or to his sons. The estate tail does not merge in this remainder, unless it is changed by a fine into a base fee. It will then merge in the remain- der when it descendsj and the tenanli will be in by de- scent and not by purchase. He will thus be liable for his ancestor's debts. Accordingly, wherever a tenant in tail can command the consent of the immediate feeholder, or has that feehold himself, he always suffers a recovery, which creates not a base fee, as a fine does, but a fee simple, incapable of merging in the remainder in fee, which it destroys. A remainder in fee may be created in a will as in a deed, after a limitation in tail. The estate tail in such a context will not be expanded into a fee, but left as an entail, with a remainder in fee. As a fee simple may, by implication, be cut down to a fee tail, so an entail general may, by the context, be cut down to mean an estate in tail special. Entails by impli- cation are very frequent in wills, where there is a refer- ence to a devisee's death without issue. The incidents of an estate tail are, of coarse, the same whether the es- ' tate is created by express words or arises by impli-ca- tion. When a tenant tail has (which is usually the case), the reversion alone in fee by descent, he should never levy a fine. The effect of a fine is different frona that of a recovery, inasmuch as it does not bar the remainder, but merely 'converts the entail into a base fee. This 114 ESTATES TAIL. estate in the case put would merge at once in the rever- sion in fee. The tenant in tail would then be tenant in fee by descent and not by purchase. He would, con- sequently, be liable for his ancestor's charge^ and debts,, though if he had suffered a recovery its effect would be to expand the entail into a fee simple, and so shut out the reversionary fee by descent. He would thus be tenant in fee by purchase, and hold the land free and clear of all manner of incumbrances, except those cre- ated by himself. A fine, however, is often alone available to a tenant . in tail in remainder, if the particular tenant will, not consent to the disentailing of the land. A fine is alsa convenient, as it can be levied at any time of the year, and not, like a recovery, merely in term. Besides, it is- less expensive, and when levied with proclamations,^ gives a title by non-claim. It operates thus as a spe- cial statute of limitations in favor of tenants in taiL Yet, all these advantages are completely outweighed by the fact that if the tenant in tail owns the reversion in fee, he changes by a fine his estate from one by pur- chase to one by descent.^ Redfield^ lays down the doctrine that a remainder after an estate tail is void, as being too remote and founded on an indefinite failure of issue. No remainder, however, after an estate tail is void for remoteness, but,, if limited after the indefinite failure of issue of one who tabes no estate tail, then the limitation is void. If it is limited not immediately after the estate tail or in defeasance of it, but at a period, say a year or a month, after the termination of the estate tail, it is also void, ' See Burton's Compendium, title " Estates tail," Co. Litt. titles, " Es- tates tail," " Confirmation," " Charge," " KecoYery." Shelford's Real Prop. Statutes. " Vol. n, 316, § 3, 3d cd. ISO MEBGEK OF ESTATES TAIL. 115 because, though executory, it is not limited so as neces- sarily to vest during a life or lives in being and twenty- one years afterwards. The reason why a limitation •by way of remainder after an estate tail, or as an executory interest defeating such an estate, cannot be too remote, is drawn from the fact "that the tenant in tail can at any time bar such ulterior interest. If he die without barring it, then if it is a remainder, unless it vests at farthest upon the death of the tenant in tail, it is defeated and cease's to tie up the inheritance. If it is an executory interest, however, it may be void for remoteness, even though limited .after an estate tail, although this position is denied by some writers of authority. Executory interests, as they alone come within the reason of the rule against perpetuities, so are they unaffected by the incidents of remainders. These, as will be shown in a subsequent part of this work,^ can- not be too remote, whether limited after estates in tail or for life. But, executory interests rest on a wholly different foundation. For instance, under a devise to A. in tail, remainder forty years afterwards to the heirs of B., here, if this executory interest to B.'s heir were valid, the inheritance might be in abeyance for forty years. It is clear such executory interest is void for remoteness. But if it were to abridge or defeat the estate tail, it could not be too remote. The statement in Kent,* therefore, that a limitation after an estate tail is void by way of executory devise, as being too remote, is only true with the' qualification mentioned. In other words, certain, but not all execu- tory devises after estates tail are void. If the limitation ' See infra, ch. 36 on "Void testamentaxy gifts." » 4 Comm. 376. 116 ESTATES TAIL. is a remainder, or even a shifting use, it is valid. But if it is a springing use, it is void. § 3. American mo(^ifications of the law of. entails. Estates tail were introduced into our law •^th. the other elements of English jurisprudence.^* But, being inconsistent with the more radical principles of a Re- public, estates tail are now obsolete in some States, and are greatly modified in most others. Where th,ey do exist in their primary foi;ce, they can only be barred by fine or recovery. Although they still prevail in Massachusetts, Del- aware, Pennsylvania and Maine, they may in all of these States be barred by ordinary deed and in some by will. In Massachusetts estates tail descend as in England,^ and in some of the States where they still exist they may be barred by will and attached by creditors.^ Estates tail are abolished in Virginia, New Jersey, New York, North Carolina, Kentucky, Tennessee and Georgia. They are unknown to the laws of South Car- olina and Louisiana. In New Hampshire a tenant in tail may convey by ordinary deed. In Alabama and Mis- sissippi a conveyance may be made to a succession of donees, and to the heirs of the remainder-man. In Connecticut, Missouri, Ohio, Illinois, New Jersey and Vermont, the' first donee in tail takes a life estate and a fee simple vests in his heirs or in the first remainder- man. A tenant in tail in these States has virtually only an estate, for life, as he cannot encumber the inher- itance.* > 4th Kent, 5 ed. 14, 15. * Wight V. Thayer, 1 Gray, 286. = Danes Abr. vol. 4, p. 621 ; Purdon's, Dig. 353. * See Den v. Small, 1 Spencer, 151 ; Saunders «. Hyatt, 1 Hawks, 247 ; Tinsley v. Jones, 13 Grat. 289 ; Bramble «. Phillips, 4 Leigh, 90 ; Thom- MODIFICATIONS OF LAW OF ENTAILS. 117 In Indiana a tenant in tail is deemed to be seized in fee ,after the second generation. In Connecticut there may be a tenancy in special tail. In Ebode Island estates tail may be created by deed, but not by will longer than to children of the devisee, and they may be barred by deed or will. In some other States almost all the common law distinctions between estates in fee simple and in tail are abolished, and both kinds of limitation are held to be virtually in fee simple.^ In Maryland estates tail general are virtually abol- ished, being devisable and chargeable with debts. But estates tail special in that State cannot be devised or charged with other than mortgage debts.^ In the other States where estates tail are abolished by statute, a limitation in fee tail is equivalent to one in fee simple.® ason 1). Andersons, 4 Leigh, 118; Ross v. Toms, 4 Dev. 376; Boe v. Craiger, 8 Leigh, 449. For Connecticut, see Hamilton v. Hemstead, 3 Day, 333 ; AUyn «. Mather, 9 Conn. 114. For Vermont, see G-iddings ». Smith, 15 Vermont, 344. ' See Johnson v. Johnson, 3 Met. (Ky.) 331. " See Newton v. GriflSth, 1 Harris & Gill, 111. ' Bramble v. Billups, 4 Leigh, 90. CHAPTER VIII. DTINft WITH0T7T ISSUE. Whatever liberality of construction is allowed in the case of a deed, the same and much more is conceded in the case of a will. Now, even in a deed the haben- dvmi is allowed to explain the premises, and thus indi- rectly often to abridge the quantity of interest passed by the premises. For instance, a grant to A. and his ' heirs, hahendmn to him and the heirs of his body, will give A. cfhly an estate tail, although he takes a fee by the premises. But, if the grant were to A. and his heirs, Jiahendum to him for life, the habendum would be void. For, of two totally repugnant clauses in a deed, the first will prevail. The reverse rule is adopted in the case of wills. It is rarely, however, that even a will contains two passages that are strictly contradic- tory of one another, though wills doubtless often enough abound in sentences that are' more or less incon- gruous. By analogy to the limitation to A, and his heirs, and if he die without heirs of his body, over, a devise to A. and his heirs, and if he die without issue over, gives A. an estate tail. For "issue" in a will is equivalent to "heirs of the body" in a deed; and, as this clause may cut down a fee in instruments of the latter class, a fortiori, it may have the same eflfect in wills. In the case put there is no difficulty. But let us suppose that the devise is to A., and if B. dies without issue, remainder to C. in fee. Here the operation of the phrase " dying without issue, " would have the effect of rendering the devise to C. void for remoteness. In other words, the phrase "dying without issue" means DYING WITHOUT ISSUE. 119 •dying and leaving no issue at some time or other, and not merely at the time of death of the propositus. As such an indefinite failure of issue might not happen within a life or lives in being, and twenty- one years after, the remainder to C, is void for remoteness. But, if -the limitation were to A. and his heirs, and if he die without issue, remainder to C, this remainder would be good, inasmuch as it would be limited to take effect on the determination of an estate tail, and no remainder -after an estate tail can be too remote, because the ten- ant in tail can always bar such ulterior interest.^ This meaning of the phrase in question is much more easily got rid of in bequests of personalty, than where the devise relates to freehold. The phrase "leav- ing no issue," accordingly, has been decided to point to -a failure of issue at the death of the propositus, in ease the subject of the disposition be personalty ; but, if the subject-matter is freehold, the phrase is construed to mean an indefinite failure, even though in the very same will it be construed, as already stated, so far as it is used in disposing of personalty.* This actually happened in the case of Forth v. Chapman.* The phrase " leaving ho issue" was construed in that case to denote an indefi- nite failure as regarded realty, and a failure at the time of death of the propositus, as regarded personalty. The very same point was decided in Mayzcker v. Van- derhorst.* In that case the devise was of real and per- sonal estate to the testator's daughter and " the heirs of her body forever," but, if she should " depart this life leaving no lawful heir or heirs of her body " then over. It was held that the limitation over pointed to an indef- ' See Hallet v. Pope, 3 Harr. 542 ; Moore v. Howe, 4 Mon. ; Downing d. TVherrm, 19 N. H. 9. ' 1 P. Wms. 653. ° 1 Bailey's Eq. 48. 120 DYING WITHOUT ISSUE, inite failure of her issue as regarded the realty, but to a. failure at the time of her death as regarded the person- alty. As the general rule of construction is not carried out where the bequest is personalty, .provided the con- text at all favors a departure from it, so also the courts have engrafted another exception upon it, viz., where the testator has no issue and uses the phrase " dying without issue " in reference to himself. This will then; mean a failure of issue at his death, no matter whether the subject of the donation is real or personal.^ A third class of exceptions to the general construc- tion of the phrase " dying without issue " consists of those cases where the context of the will shows that the testator meant a failure at the time of death. This, indeed, is not so much an exception to the rule of con- struction referred to as a statement of the fact that a testator is bound by no rule of conveyancing not amounting to a rule of public policy. The reader of a treatise on wills, therefore, should remember that every rule and exception thereto Vhich he is reading applies only if the testator has said nothing to the contrary. If he has, the will of the testator, and not the rule of law, will be followed. "We refer, therefore, to the fact that the testator may preclude the statutory or common-law meaning of the phrase " dying without issue " merely- that we may add that a failure of issue, at the time of death of the propositus, will always be more readily in ferred if the subject of the gift be personalty than if it be freehold.^ Where the gift over is to take effect expressly on the- death of the first taker, there is no difficulty,^ no matter ^ French ». Caddell, 3 B. P. C. (Toml. ed.) 257. ^ Feaine on Cont. Rem. 471. = Doe d. King v. Frost, 3. B. and Aid. 546. DYIHG WITHOUT ISSUE. 121 whether the propositus takes an express or an implied fee.^ But, if he takes only an estate for life or an estate tail, the restricted construction will not be adopted.'* The reason is because the issue of the propositus will be sought to be benefitted in the cases last put by giv- ing the first taker an estate tail. This reference or pre- sumption in favor of an estate tail, however, will be rebutted if the proposittts gets by the will certain lim- ited powers which he would not require if he was to be plenary tenant in tail.^ If the event of dying is confined within a certain age of the propositus, the failure of issue cannot be held to be indefinite. In such a case, as, for instance,. under a devise to A. and his .heirs, and if he die under twenty-one and without issue remainder to B., this remainder will take effect if A. has no issue living at the time of his death. A. does not take an estate tail, but a fee subject to an executory devise in favor of B.* An estate tail in possession is thus always better than an estate in fee, if this is subject to an executory devise ; because the tenant in tail can bar all remainders and executory devises after, or in defeasance of, his estate tail, whereas a tenant in fee cannot defeat any valid, ulterior limitation whatever. As an estate tail always prevents a limitation after it from being too remote, because the tenant in tail can bar it, it was on this account that the courts inter- preted a failure of issue to mean an indefinite failure a& regarded land, because the remainder over was thus supported and prevented from being too remote, while,, even if the tenant in tail defeated it, he then had a fee ' Blinston «. Warburton, 2 K. & J. 400. = lb. ExparU Davies, 3 Sim. N. 8. 114. ' Doe -0. Fjost, 3 B. & Aid. 546. ■* Eastman v. Baker, 1 Taunt. 174. 122 DYING WITHOUT ISSUE, wWcli would go to all his issue, as well as to his heirs general. In cases o'f personalty, however, there is no such thing as an estate tail. The person to whom an entail is limited in personalty takes the absolute inter- est,^ and a remainder over is void. Hence the courts strained affcei' confining the meaning of the phrase ^' dying without issue," and especially to denote a fail- ure of issue at the death of the propositus, in case the subject of the donation was personalty. The nature of the subject-matter, and the terms of the ulterior devise, sometimes show that a failure of issue at the time of the death of the propositus is what is intended. Thus, if the land is chargeable with moneys to be paid within a definite period after the decease of the first taker f or, if the ulterior estate is for life only,® the restricted construction will obtain. Jarman* thinks that, as an estate for life is often, in practice, limited after an estate tail, the fact that the ulterior interest is for life ought not to lead to an adop- tion of a restricted construction of the phrase " dying without issue." But this reasoning is hardly philosoph- ical or practical; for, in the case of the limitation in question, the testator means that the first taker is to have only a life interest, unless he has issue. Life in- terests are often limited after estates tail, but not where the tenant in tail has actually in existence a large family at the time. Such a limitation over would be frivolous. Jarman then compares his merely abstract position with an actual limitation to a living person, after a gift for life to a person jvho, most probably, has no issue at all at the time of making the devise. Sir ' Appleton v. Romley, Law Rep. 8 Eq. 139. ' Nichols «. Hooper, 1 P. Wms. 98. " Roe d. Sheers «. Jeflferey, 7 Dum. & East. 589 . ' Vol. II, 485. DYING WITHOUT ISSUE. 123 W. Grant, however, would not adopt tte restricted con- struction in a case where some only of the remainders over were for life.^ Where the property, in the devise over, was charged with certain sums of money to be disposed of by the will of the first devisee, the restricted construction will obtain.^ Jarman* very justly observes that, if ftie first taker gets only an express estate for life, the restricted con- struction ought not to be so readily applied as where he gets the fee, because in the latter case the issue may take by descent, whereas in the former they get noth- ing, and yet the remainder-man takes nothing until they fail. Besides, when the first taker has a fee limited to him, the ulterior tenant cannot be barred by a recovery, while the prior tenant has a fee which may become obsolete. The phrase " dying without issue," in a devise of freehold land, is construed generally in the United States as it was in England* prior to 1838,® Conse- quently, in those States where there is no statutory provision on the point, the phrase is equivalent to dying without heirs of the body. In several of the States, however, as in England since the date men- tioned, the failure of issue refers to the death of the ancestor. Even in those States where there is no statutory rule of construction on this head, the courts strain at some plea in the context for interpreting the phrase in its restricted sense, if this is necessary to sufJport a limitation over. Thus, it has been held. ' Barlow «. Salter, 17 Ves. 479. ° Mchols V. Hooper, ut supra. = Vol. II, p. 440. * 1 Vict. c. 26, § 29. * 3d Circ. Pa. 1818, Willis ». Bucher, 3 Wash. C. Ct. 124 DYING WITHOUT ISSUE. that a devise, " if either of my sons A. and B. sliould happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs," points to a failure of issue at the death of A, or B. A. and B. were held each to take a conditional fee, subject to an executory devise in favor of the survivor.^ If the subsequent estates are for life only, this is some intimation that the testator did not contemplate an indefinite failure of issue.^ Jarman, however, thinks the decision cited an " extraordinary one."* The phrase, " leaving no issue," will be construed more readily than " dying without issue," in a restricted sense. Yet, " leaving no issue " will not be restricted in meaning as to realty in England, even though the lands be copyhold, in which there is no custom of entailing, and of which the ulterior limitation is, there> fore, too remote. But, if the testator has no issue, and refers to himself leaving no issue, the failure referred to will be admitted to point to the time of his decease.* So a devise to A. and his heirs, but if he die under twenty-one and without issue, then over gives A. a fee determinable on his death without issue. A like construc- tion prevails in every case where the dying without issue is connected with some event personal to an individual.^ A gift over if the devisee dies under twenty-one, or under twenty-one and without issue, gives him the fee by implication if he attains age, even in those States ' 3 Abbott ®. Essex Company, 2 Curt. C. C. 136; see Smith's Appeal, 23 Penn. St. 9. = Roe d. Sheers ». JeflFery, 7 Durnf. & E. 589. = 2 Jann. 435. ' French ». Caddell, 8 B. P. C. Toml. ed. 257. ' Griswold «. Greer, 18 Geo. 545; Armstrong v. Armstrong, 14 B. Men. (Ky.) 333. DYING WITHOUT ISSUE. 125 where a general devise does not mean a fee.^ In these States, also, the devisee takes the fee if the legal estate is in trustees, and the purposes of the trust require that they should take the legal fee. In Doe V. Watson^ there was a devise to two grand- children of the testator, provided that if both should die under age and without lawful issue, then over. It was held that, as the children attained age, the devise over never took effect. Where a testator does not pontemplate the event of any of his children dying under age, but directs the distribution of his estate to be made when the youngest child attains majority, the bequest may be deemed dependant on the majority of that child alone, and is not void as suspending the power of alienation for more than two lives.® A devise of a reversion expectant on an estate tail should provide that the clause, dying without issue, should mean the issue inheritable under the entail, or else refer to that estate, otherwise the gift may be void for remoteness. The phrase, " dying without issue," by the 1st Vic. c. 26, s. 29, points to issue at the decease of the ancestor. The phrase in question, therefore, cannot in future in England, or in States having analogous statutes, give an estate tail by implication, except in the instances excepted in the section. This section will not abridge estates given previously to children, because the word issue will refer to the children, and, if occuring subsequently, will mean such issue according to the rule in Malcolm v. Taylor,* while in other cases it will pre- vent the limitation over from being void for remoteness. ' Burke i>. Annis, 11 Hare, 333. ' 8 How. 363. • ' Burke v. Valentine, 53 Barb. 413 ; s. c. 5 Abb. Pr. N. 8.. 164. * 3 Euss. & Myl. 416. 126 DYING WITHOUT ISSTJE. A limitation over after a general failure of issue is void as to personalty. Hence, tLe courts endeavour still more earnestly tlian in tlie case of realty to confine the reference to a failure of issue, to the time of the death of the first taker of personalty. As regards such property, therefore, words denoting a failure of issue, following a bequest to children,^ either for life in fee or in tail, refer to them and will not enlarge any of the prior estates. This construction will a fortiori apply where the previous bequest is to children, even though they be subjected to certain qualifications. Where the phrase is " in default of such issue," it ob- viously points to the preceding donees, whether children,, sons, or daughters. This rule applies to devises as well as bequests, and even though the previous bequest be to child or daughter in the singular. The parent in such cases takes no estate tail. Where there is a devise to issue of a particular kind,, or subjected to certain restrictions, the clause, in default of issue (not " such issue"), will usually be held not to refer to the preceding issue, but to enlarge the ancestors* estate by implication to an estate tail in remainder.'- Therefore, under a devise to A., remainder to his eldest son, or to a limited number of his sons, or to one son only in tail male, or for life, and in case A. dies without issue, over, A. takes an implied estate tail in remainder.''^ Jarman very justly considers that the phrase, in default of issue, ought always have been construed to be referential only,^ and as equivalent to the phrase, " in default of such issue." Even as to personalty ,the clause, " dying without issue," will receive only the restricted signification when followed by the words • " after his decease," (but ' not _^ . i ... ' 3 Jarm. 363. = Stanley ». Lennard, 1 Eden, 87. " 3 Jarm. 397. DYING WITHOUT ISSUE. 12T " after Mm,)" or, " if lie marry without consent, or die without issue." This latter phrase shows that the testa- tor did not mean to give the devisee an entail at all haz- ards, but only a fee determinable.^ This seems to be the true principle of the decision in Keiley v. Fowler.^ The ulterior legatee in all cases of this sort must be intended not merely to survive the propositus, but all his issue. The context, by reference to a definite period when the issue are to fail, or, by containing powers having only a limited scope, may cut down the phrase, " dying without issue" to failure at the time of the death of the pro- positus.* As the American courts incline to ignoring the rule in Shelley's case, so they also lean to construing the words " dying without issue," when unexplained by the context, as denoting a failure of issue at the death of the ancestor. With respect to this rule, the English cases prior to 1838 are more in harmony with those of the United States than where the question relates ta the rule in Shelley's case. The English courts always inclined, almost as much as our own, to give the phrase,. " dying without issue," a restricted meaning. Old Eng- lish cases on this question, therefore, are valuable to the American practitioner. The doctrine of Forth v. Chapman * has iiot been absolutely adopted by the American courts, but their disposition is strong to cut down the meaning of the phrase, " dying without leaving issue," or, " dying with- out issue," to death, or failure at the death of the pro- positus, even as regards realty. Thus, in Den v. Schenck,^ ' Trotter v. Oswald, 1 Cox, 317. = 3 B. P. C. Torn!, ed. 299. ' See further Dallam v. Dallam, 7 Har. & J. 230 ; Carter v. %ler, 1 Call, 143; Moody v. Walker, 3 Ark. 198. • 1 P. Wms. 663. ' 3 Halst. 39. 128 DYING WITHOUT ISSUE. the pJarase, " die without issue alive," was held to im- part only the restricted meaning. In Anderson v. Jstck- son^ the phrase, " the share of the devisee dying without lawful issue,, was to go to the survivor," received a similar construction. But if there is no expression, however slight,* the rule of the common law will be applied, and the failure of issue will refer to all descendants,^ except in those States where a statutory provision exists to the con- trary. The American statutes on this point are more satisfactory than, the analogous English, provision (1 Vict. c. 26, § 29), which relates only to the use of the word " issue," and not " heirs or children." The rule of construction ? adopted by the 29th sec- tion of 1 Vict, c. 26, had been previously enacted in Virginia in 1819, in Mississippi in 1824, in North Car- olina in 1827, and in New York by the Rfevised Stat- utes.* The old rule, however, may apply if the clause refers to a preceding limitation, and it must apply if the context is plain to that effect. In such cases the clause will either raise an implied estate tail in the prop- ositus, or else will render the ulterior limitation void for remoteness. The statutes referred to only operate where the testator's meaning of the words used by him is not clear or defined by the context. It has been doubted whether, in case of a devise to A. and his heirs, and, if he die without issue oyer, A. would not still take an estate tail in England and those States which have analogous statutory provisions on this point. It is probable the English Wills Act will be held not to apply to this case. The issue referred to ' 16 Johns. 383. ' Ladd V. Haryey, 1 Post. 514. « ' See Edelen «. Middleton, 9 Q-ill, 161, where the cases are examined. * See 4th Kent, Sth ed. 379. DYING WITHOUT ISSUE. 129 are comprised in the previous word " heirs." The con- text thus shows that the testator contemplates a general failure of issue, and not a failure of them- at his death. The statutory interpretation of the meaning of the phrase, therefore, seems precluded by the previous de- vise in fee. But more difficult questions will arise on this head under the American statutes, which (unlike the English act), expressly provides for a death without " heirs " as well as for death without " issue." In Virginia,^ Mississippi,^ North Carolina,* dying without issue, heirs, heirs of the body, or children, will mean, whether in a deed or will, a failure of issue at the death of the ancestor or propositus* By the New York Revised Statutes, a remainder, limited after an entail, operates as a contingent limitation on a fee, and vests in possession on the death of the first taker without issue living at his death.* As to the question whether a limitation of personalty to the survivor of several persons, in default of issue of either, involves a restricted construction of the phrase we are considering. See Cutter v. Doughty.® ]f the phrase " importing a failure of issue " is pre- ceded by 'a power implying a gift in default of appoint- ment to the issue of the donee, living at his decease, the , restricted construction will of course prevail in any State.« The rule of construction established by the 29th section of 1 Vic, c. 26, and the anialogous American statutes, does not apply if the context implies to the contrary. It will, however, be often still a question of 'Stat. 1819. ^ Stat. 1824. ' Stat. 1837. * See Hone «. Van Schaick, 3 Barb Ch. 489. * 33 Wend. 513; ZollicofiFer«. ZoUicoffer, 4 Day. & Bat. 438. ' Target ». Gaunt. 1 P. W. 433. I 130 DYING WITHOUT ISSUE. difficulty to determine whetlier the statutory rule is neutralized by the context or not. The old cases thus continue to have much, though, of course, not the whole of their pristine value, even in those States where the restricted construction obtains by statute. For further elucidation of the phrases " dying with- out issue," or " without lawful issue," see Patterson v. Ellis.i Under the statutory meaning of the word " issue," the remainder man over takes an executory interest which cannot be barred. Under the ordinary meaning of the phrase " dying without issue," the remainder man over takes a remainder, which is at the mercy of the preceding tenant' in tail. The enactments on this head are, on the whole, to be condemned, except where they restrict the new meaning of the word " issue " to wills where the propositus takes no estate. For, in those instances where he takes expressly for life, the intention of the limitation over on his dying without issue is certainly to benefit the issue, either as heirs or purchasers. But the act defeats their claims under either head. ' 11 Wend. 259; NorMs v. Byea, 13 N. Y. (3 Kern.) 273; Dumond v. Stringham, 36 Barb. 104; Wilson v. Wilson, 32 Barb. 328; Du Bois v. Kay, 7 Bosw. 244; 11 Wend. 259; 5 Mass. 500. CHAPTER IX. JOINT TENANCY. The law favors the amalgamation of different estates in one person. Hence, perhaps, arose the rule in Shelley's case, and the doctrine of merger. The law alsd favors the concentration of the estates of different persons in one of them, if the construction will so per- mit. Hence, sembUj flowed the motive for its pre- suming a, jus acGrescendi, under a limitation to several. This doctrine, indeed, is found in Eoman law; but under the feudal system the civil law did not prevail of its own authority, but only by its intrinsic merits, and its conveliience for feudal purposes. A devise, like a conveyance, to two or more per- sons, not being husband and wife, constitutes them joint tenants. The law presumes a joint tenancy in such cases, and equity follows the law. The peculiar incident of a joint tenancy is that, though any of the partners can assign or can devise his share without the consent of the others^ these, nevertheless, have what is termed the jus accrescendi^ or right of survivorship or accruer as to unassigned shares. This is very convenient in trust estates, as it is not then necessary to seek out the heirs of deceased trust- ees, in order to convey. The cdknmon law of joint tenancy, however, is much infringed upon by statute, both in the United States and in England.^ At common law there were some nice distinctions ' See Kent, 5th ed. 361, 363 ; Frewen «. Rolfe, 3 Br. C. 0*334; Vamum «. Abbott, 13 Mass. 474. 132 JOINT TENANCT. between the forms' of conveyance open respectively to' joint tenants, tenants in common, and parceners. Joint tenants could both enfeoff and release, while tenants iu common could only enfeoff, and parceners release. This privilege of joint tenants wab important, when we con- sider the efforts made in early times to devise a system of secret conveyancing by 'means of releases founded upon nominal leases. As a joint tenant was by statute authorized to dismember the joint tenancy, he could, also thus constitute himself a tenant in common any- time by deed, though not by will. The incidents of a joint tenancy at common law are- unity of possession or seisin, of interest, title, and time of vesting. Under wills or conveyances by way of use or trust, the last incident is not indispensable. Devisees may take joint interests, and yet come into being or otherwise attain vested interests at different periods of time. For instance, undera gift to A., remainder to the children of B., all B.^s children at the death of A. are joint tenants, although their interests vested at different times.^ Under a limitation of this kind to a class, some members of which are already born, the natural con- struction would appear' to be to hold the existing members to take as joint tenants, but subject to a divesting of their interests proportionately on the birth of fresh members of the class. The divesting operation cannot affect the quality of the interest taken by the- existing devisees rflore than it can the vested nature of the interest. However, in Woodgate v. Unwin^ all were held to take in common, while in Stratton v. Best*' ' Kenwortby v. Ward, 11 Hare,, 196. ■■■ 4 Siin. 139. ' 2 B. C. C. 233. JOINT TENANCY. 133 all were held to take ' jointly. The only mode of reconciling these cases is to consider that limitations of realty will be construed more readily than gifts of per- sonalty to be in conformity with the common law pre- sumption in favor of a joint tenancy. The former case was under a will ; the latter under a deed to uses. But wills and uses are, as already stated, considered to be on the same footing with respect to common law presump- tions. Indeed, neither of the cases referred to can be considered as of much authority. The doctrine in Ken- worthy V. Ward^ may, therefore, be considered as the. ■correct statement of the law on this point. Whether the -devise be to several by name, or to a •class, they take as joint tenants, and whether they be children, issue, or next of kin, unless there is a refer- ence to the statute of distributions,^ or some of the shares are contingent, as when the limitation is to such members of the class as will attain twenty-one.* The case of Woodgate v. Unwin, however, is of no real authority on the point, inasmuch as the principle of the decision, as expressed by the court, was that no interests that vested at different times could be held in joint tenancy, a doctrine long exploded as regards wills and conveyances by way of use. The exceptions to the rule presuming a joint tenan- cy in case of a limitation to several are, first, where the gift js to two,. being husband and wife. Such a- grant or devise constitutes a peculiar tenancy. The donees take by entireties, and differ from joint tenants, inasmuch as neither alone can defeat the interest of the other sur- viving. Another exception exists in the case of partner- • 11 Hare, 196. _ ' Bullock if. Do'wnes, 9 H. L. C. 1. ' Woodgate b. Unwin, 4 Sim. 139! 134 JOINT TENANCY. sLip property. A third exception to the rule is, that if a de-^ vise or grant be made to two persons who cannot lawfully intermarry, or to two men or two women,^ and the heirs of their bodies, the donees are joint tenants only for life, with several inheritances in tail. For, it is not possible that they can have a common lawful heir of their bodies. The right of accruer in such a case attaches only to the life interest. The presumption of a joint tenancy is also- often varied in equity under contracts where the parties contribute unequally. The slightest indication, too, in a will that the donees are to take in common will be enforced in equity. For the court is ever ready to overrule the common law jus occresceMi, on the ground that equality or a tenancy in common is more equitable than a chance game of survivorships. However, if there- be nothing in the context to enable the court to carry out its favorite views, it must adopt the legal pre- sumption. The presumption of a joint tenancy applies to a be- quest by way of trust or otherwise, and whether the gift be of a sum of money or of a residue. But, it i» possible that a tenancy in common would be more readily inferred in a doubtful case where the bequest was personal than if it be real, just as in conveyances, by way of use or under a will, a tenancy in common may be created^ by words that would fail to sever the jointure in a de%d. As the presumption of a joint ten- ancy is a common law rule, tlje further we pass from common law into the region of equity, and still further into that of the civil lafsv and of the ecclesiastical courts, the common law presumption grows weaker. Indeed, equity so favors a tenancy in common that it grasps at any straw in the context^ to promote such a construction.. « ' Doe d. Littlewood «. Green, 1 Mee. & W. 329. JOINT tena:ncy. 135 But, if there be notHng of this nature in the context, the Court of Chancery is powerless to ignore the rule of law that presumes a joint tenancy in a gift to two or more, so far as such presumption is practicable. The presumption of a joint tenancy applies to gifts, to classes and to children. But, if some are unborn, then, as to these, the gift, if it arises under a common law deed, is necessarily in common. For common law estates that vest at different times cannot be in joint tenancy. Yet, as regards the devisees, and especially the members living at the time of testator's death, these, semble, take jointly. The case of Woodgate v. Unwin^ differs on this point from Stratton v. Best.* But this, as already stated, was a conveyance by way of use, and uses and wills are considered as capable of conferring a joint ten- ancy, even though the shares vest at different times. As the court, when enforcing any equity, will carry out its own peculiar rules, so, when executing trusts ex- ecutory, whether contained .in wills or deeds, it will constitute any classes of donees tenants in common.® The exceptions, then, to the common law presump- tion (which is followed by equity), in favor of a joint tenancy in a gift tp a class, are : 1, where the donees are husband and wife ; 2, as to inheritances, but not life interests, where the donees cannot by possibility have a joint heir ; 3, cases of partnership ; 4, executory trusts. The dictum of Lord Hardwicke in Bagshaw v. Spencer,* to the effect that trusts executory do not differ from trusts executed, has been long since overruled. Executory trusts are directions contained in wills, marriage articles and contracts, to convey or settle ' 4 Sim. 139. = 3 B. C. C. 333. ' Mairyatt s. Townly, 1 Ves. Sen. 103. * 1 Ves. Sen. 143. 136 JOIlJrT TENANCY. property in a certain manner. Sucli directions are con- strued differently from clauses in final instruments, tlie trusts of whicli are said to be executed or completed. Most wills contain very few executory trusts, as distin- guished from executory interests, or future uses or trusts. The testator generally settles the property himself; but if, instead of doing this, he directs a devisee in trust, or the donee of a power to convey land to A. in strict set- tlement, or to the children of A., equity will, in the former case, direct the conveyance to be to A. only for life, with remainder to his first and other sons in tail, and in the latter case to the children as tenants in com- mon. But, if the devise was a trust executed to A. and the heirs of his body, A. would take an estate tail, while under the devise to the children they would take as joint tenants. The preceding observations respecting devises and trusts executed apply only where the context discloses no intention on the part of the testator to create a ten- ancy in common. Any limitation to this effect, of course, will be as legal in a will as in a deed, while many ex- pressions in a will or conveyance by way of use that . will create a tenancy in common will not have this effect in a common law deed. Any phrase in a will that imports division by equal or unequal shares^ will create a tenancy in common. A tenancy in common has been held to be created by the phrases, "equally to be divided," "equally amongst them," " severally," " equally," " respectively," " part alike," -" in moieties," &c? Where an ulterior donee, however, is not to take his interest until after the death of a survivor or of. ' 3 Jarm. 163. " See m re TiTerton Market Act, 30 B. 374. JOIKT TENANCY. 137 previous donees, this imports that these take as joint tenants^ and that the_;'MS accrescendi^ or accruer, applies to accrued as well as to original shares.** If the gift is in joint tenancy, and any of the limita- tions are void, lapse, or are revoked, the remaining donees take the whole. But, if it be a tenancy in com- mon, the heirs will take unless the gift is to a class,^ in which case all the members of the class living at the death of the testator will take. In Brownell v. De Wolf,* a person devised to " all his surviving children in equal divisions " all his real estate, and afterwards, by a codicil, revoked the share of a daughter without limiting any devise over. It was held that, as the devise to the children was in common, the revocation of the daughter's share did not enlarge the estate of the others, but produced an intestacy as to that share. A^to what constitutes a severance of a jointure, see Gould V. Kemp.^ Even in England the presumption of a joint tenancy is a very slight one, and is daily becom- ing more evanescent.® In the United States it is no- ^ where regarded as more cogent than the presumption in favor of the rule in Shelley's case, which, as stated in Chapter VI, may be defeated by any expression, how- ever trivial, to the contrary.'^ ' Doe d. Calkin «. Tompkinson, 3 Mau. & Sel. 165. " 3 Jarm. 166, note ; see chapter 16, infra, on Suryivorship. ' Sackett i). Mallory, 1 Met. 356. ■ * 3 Mass. 486 ; see Pryor v. Dunkle, 2 Wash. C. Ct. 416, for a plain case of partial intestacy. '3My. &K. 304. ' See mr« Morse, 81 L. J. Ch. 363. ' See 4th Kent Comm. 5th ed. 361, 363; 3 HiUiard's Abr. Law of Real Estate, c. 4, pp. 43-4 ; Sackett v. Mallory, 1 Met. 355. CHAPTER X. FUTURE ESTATES. § 1. Remainder. At common law the feeliold could not be first limited on a contingency, but an executory devise may be thus created. A common law remainder should wait until the preceding estate or estates determined, but an executory devise may abridge them. In short, an executory devise is bound by no doctrine of convey- ancing, except the rule against perpetuities, and it cannot, like a remainder, be defeated by any incident of the estate of the particular tenant.^ The framers of the Revised Statutes of New York" have imbued remainders with all the qualities of execu- tory devises, and have also abolished uses, thus copying in the letter the ancient doctrine of the common law judges^ that there could be no use of a use. A remainder is either vested or contingent. A con- tingent remainder fails altogether, if it does not become vested before the period specified in the will. For in- stance, under a devise to A. for life, remainder to the heir of B., if B. survives A., the heir of B. never takes anything. Contingent remainders are divided by Fearne into four classes. The following remainder is contingent on the four conditions described by that writer. To A. till B. returns from Rome, and from and after the return of B, and'C. from Rome, and the death of D., remainder to the heir of E., when he shall attain age. Unless all these contingencies are fulfilled before ' See Alkn v. White, 16 Ala. 181. " Vol. I, 728, § 45. EBMAIUDEK. 139* B. returns from Rome, tlie heir of E. never takes the estate. Executory devises are subject to no legal period like remainders before or at which at latest they must vest. They are, therefore, more advantageous than re- mainders to devisees. They can only arise under wills or dee^ds by way of use, and will not be construed as execu- tory even in those instruments if the limitations can by possibility at' the time of the testator's decease be deemed remainders.^ For a common law estate is al- ways presumed, instead of a statutory one. The law of remainders is thus more extensive under wills than would be suspected on first consideration. Contingent remainders may be preserved from de- struction by the particular tenant, by means of a limitation to trustees to preserve the contingent estates. Even where contingent limitations are protected by statute against the merger, surrender, or .forfeiture of the estate of the particular tenant, a limitation to trustees to preserve, nformity with their own views on this question, this ill probably be the direction of fiiture adjudications 1 questions of precatory trust, where the context is ft doubtful by the existing decisions. § 3. Terms of request. The expression of a mere wish or desire has been ng held by the courts to be equivalent to an impera- ve direction.^ The term " recommend," though some- mes not considered imperative in America,* has been jld in England to create a trust.* A trust is also raised y^ the terms " request," ^ " wish and request,"® "'dying quest," "^ " entreat," * " a last wish to daughter to give grandchildren," ' " desire," ^^ " advised him to settle," " ' Howarth v. Dewell, 6' Jur. N. S. 1360. "Malim «. Keighley. 2 Ves. 833; Knight v. Roulton, 11 CI. & F. S; Knight v. Knight, 3 B. 148; Briggs v. Penny, 3 Mac. & G. 546; ry V. Gary, 2 Sch. & Lef. 189. ' Gilbert ®. Chapin, 19 Conn. 343. * Ford B. Fowler, 3 B. 146 ; see Johnson v. Rowlands, 2 De G. & Sm. 3 ; and Meggison v. Moore 2 Ves. Jr. 630 ; Knott •e. Cotete, 2 Phill. C. 193. ^ Uowlan v. Neligan, 1 Bro. C. C. 489 ; Pierson v. Garnet, 3 Bro. 0. C. 236 ; Bernard v. MinshuU, 1 Johns. 376. ' Foley V. Parry, 3 My. & K. 138. ' Pierson «. Garnet, 3 Br. C. 0. 37, 336. " Prerost «. Clarke, 2 Mad. 458. " Hinxman v. Poynder, 5 Sim. 546. " Mason v. Limbury, cited in Vernon ». Vernon, Amb. 4 ; Cruwys v, man, 8 Ves. 319. " Parker v. Bolton, 5 L. J. Ch. N. S. 98. 222 TEEMS OF EEQXTEST. "to apply tlie same,"^ "trusting,"^ "inthe fall confi- dence" tliat he will give my children support,'* " confid- ing," * " with, power," ^ " not doubting," * " it is my wish that my son shall add to the advancement he shall make to his son K.i"''"well knowing,"^ "hoping,"^ "to be disposed of for the benefit of herself and her children,"^" " to be applied for" the maintenance of donee's children." But the primary meaning of all these expressions, as interpreted by the preceding cases, may, as in all other instances, be controlled by the context. ^^ The following expressions standing alone, and not corroberated by the context, raise no trust: "liber- ality;" "justice;"^* "sovereign control over my prop- erty ;" " " to be disposed of in such way as my wife shall think proper ; " ^^ " not doubting that she will con- sider my near relations ;" ^® or " discharge the trust re- ' Salisbury «. Denton, 3 Kay & J. 529. = Baker «. Mosley, 13 Jnr. 740. ' Warren v. Bates, 98 Mass. 374; Webb v. Wools, 3 Sim. N. S. 367. ' Griffiths V. Evans, 5 Beav. 241; Wace v. Mallard, 31 L. J. Ch. 35*5;- Gully V. Cregoe, 34 B. 185 ; see Winch v. Brutton, 14 Sim. 879, and Webb- V. Wools, 2 Sim. N. 8. 267. " Howarth ». Dewell, 9 W. R. 27 ; Massey v. Sherman, Amb. 520; s. c. 1 Atk. 389. " Parsons v. Baker, 18 Ves. 476. ' Reed v. Reed, 30 Ind. 813. " Briggs V. Penny, 3 Mac. & G. 546. » Harland v. Trigg, 1 Bro. 0. C. 143. " Crockett v. Crockett, 3 Phill. 553 ; Rankes v. Ward, 1 Hare, 445 ; Woods ■». Woods, 1 My & Cr. 401. " Browne ». Paull, 1 Sim. N. 8. § 93; Costabadie v. Costabadie, 6 Hare, 110 ; Byrne e. Blackburn, 36 B. 41 ; but see Hammond i). Neame, 1 Sim. 35. '"Meredith «. Heneage, 1 Sim. 542; 10 Price H. L. 706; Winch v.. Brutton, 14 Sim. 379. " Knight V. Boughton,ll CI. & Fin. 513. " Winch B. Brutton, 14 Sim. 379. " Johnson ». Rowlands, 3 De G. & Sm. 356. " Sale 1). Moore, 1 Sim. 534. DEFmiTEJIESS OP 8UBJE0T-MATTEE. .22$ posed in Mm by remembering my children ;" ^ " having- fall confidence in her sufficient and judicious provision for my dear children ;" ^ " to enable her to maintain her children ;" ^ " remembering always the church and the poor." * As to requests to continue tenants in the occupancy,, see Tibbets v. Tibbets.^ As to retaining stewards in their office, see Lawless v. Shaw.* As to the appoint- ment of a certain person to an auditorship, or similar office, see Williams v. Corbet.'' Jarman is of opinion * that many of the early cases, where wills and parts thereof were held void for un- certainty, wotdd not be followed at the present day. Yet, with respect to precatory trusts, he considers' that the courts are more rigid than formerly. This observa- tion of this distinguished author, therefore^ can only be correct as regards the meaning of the precatory terms. § 4. Dejmiteness of subject-matter. The degree of certainty necessary to imbue a power with the incidents of a trust must be construed by the light of the general rules, according to which Chancery often cuts doAvn an indefinite to a definite gift. In all such cases the court will execute the power, if it can by any means eliminate the element of uncertainty.^" Of ■ Bards well v. Bardswell, 9 Sim. 319. " Fox 11. Fox, 37 B. 301. ' Thorp V. Owen, 3 Hare, 610 ; Benson v. Whittam, 5 Sim. 32. * Cm-tis V. Rippon, 5 Mad. 434 ; see also Hart v. Hart, 3 Dessaus, 83 ; Farwell v. Jacobs, 4 Mass. 634 ; Boiling ' v.' Boiling, 5 Munf. 334 ; Lydnor V. Lydnor, 3 Munf. 303. . ' 19 Ves. 656. « LI. & G. 154. '8 Sim. 349. « Vol. I, 816 ; vol. n, 349. » Vol. II, 349. " Thorp, v. Owen, 2 Hare, 610. ■224 BEFIKITENESS OF OBJECT. course, there will be no trust if the terms used by the testator, however certain, also imply that the donee of the power was invested with a discretion to exercise or not the power as he pleased, and to abstract and dis- pose of, or consume for his own benefit, the whole of the subject-matter of the power. Accordingly, no trust has been raised by the following phrases : " not doubt- ing but that she will dispose of what shall be left at her death to our two grand-children ; " ^ " what shall be remaining ; " ^ « the bulk of my said residuary estate ; " * " what she may have saved ; " * " what they have." ^ • The implied gift is always co extensive with the quantity of interest governed by the power. K the power be one to appoint in fee, the objects, therefore, take an implied fee in default of appointment. Where money is given to purchase for the legatee a ring, house, annuity, &c., he takes the money in any event, and not merely for the particular trust directed by the testator.* But, if the trustee has a discretion as to the amount to be thus expended, and lays out only part, the court will not interfere.'' Income, if directed to be applied for maintenance at the discretion of a trustee, does not pass to the as- signees in bankruptcy of cestuys que trust. The discre- tion of the trustee in such a case will not be controlled by the court. ' Wynne ®. Hawkins, 1 Bro. C. 0. 179. " G-reen ■». Marsden, 1 Drew. 647. ' Palmer «. Simmonds, 3 Drew. 331. * Cowan J). Harrison, 10 Hare, 334. * Lechmere v. Layie, 3 My. & K. 197 ; but see Horwood e. West, 1 S. 1 St. 387. » Barlow v. Grant, 1 Vem. 355 ; Nevill ®. NcTill, 3 Vern. 431. • '' Inre Sanderson's Trusts, 3 Kay. & J. 497 ; and the residue will lapse. 3eeYor «. Partridge, 11 Sim. 339. BEFIliHTElirESS OF OBJECT, 225 § 5. Dejmiteness of object. Definiteness of object is tlie third condition neces- sary to the raising of an imperative trast. The word "family" is a sufficient designation of objects.^ The phrase, " our united relatives," however, was held to be void for indefiniteness in Reeves v. Baker.^ Under a power to appoint to relatives, only next of Mn will take in default of appointment. But, the donee of the power may appoint to any relative, however re- mote.® But, if the donee has merely a power of dis- tribution, and not of selection, an appointment to relatives who are not next of kin wiU be void.* K the power is to appoint to "nearest relatives," only next of kin can be appointees.^ The term survivors admits, as already shown, of various periods when the survivors are to be reck- oned. A power to distribule or select, however, will be executed by the court amongst thqse who answer the description of the specified class at the period of the testator's death.® But, if the donee of the power take a life interest, the class is then deemed to comprise only those who will suit the description at the death of the tenant for life.''^ So, where^the power is to be exercised by the donee at the time of his death, the plass of ob- jects will comprise only those then living.^ ^ Wright V. Atkyns, Coop. Ill ; overruling Harland i>. Trigg, 1 Bro. C. C. 143. ^ 18 B. 372. ' Harding ®. Glyn, 1 Atk. 469; 3 White & Tud. 685; see Brown «. Higgs, 5 Ves. Sbl ; 8 Ves. 373. * Pope v. Whitcombe, 3 Mer. 689 ; see Clapton v. Bulmer, 10 Sim. 436 ; 5 My. & Cr. 108. " Goodinge v. Goodinge, 1 Ves. 331 ; Edge v. Salisbury, Amb. 70. » Cole «. Wade, 16 Ves. 37. ' See Bircli v. Wade, 8 V. & B. 95. , ' Pierson v. Garnet, 3 Bro. C. C. 88, 336. 226 DEFINITENBSS OF OBJECT. The olgectstoo, taking in aefanlt of appointment are only those who survive the donee. For to such only could an express appointment be made by the donee, and the implication is only an echo of the express power.^ Jarman thinks^ that an implied gift to relatives will only comprise those who survive the donee of the power, even if its exercise may be by deed as well as by will. But there seems to be no reason for thus con- struing an implied gift to relations in a way different from the ordinary construction of an implied gift to a class, although English authority is in favor of Jarman's view. Where the bequest was to such persons as A. shall appoint, and, in default of appointment, to his surviving brothers and sisters, the period of survivorship was held to relate to the death of A. But where objects of a special power take in default of appointment, their in- terest is vested from their birth. The rule in Davies v. Thorns was laid down in analogy to the doctrine in Cripps V. Woolcot.^ There is no implied gift to the class where there is an express gift over in default of appointment to or among the class.* When the trust is executed by the court, in favor of the class, they take individually or per capita as joint tenants, though by the statute they might only claim per stirpes.^ An express gift to the objects of the power, in case its donee dies before the testator, will not prevent them from taking by implication in default of, appointment.® ' See Kennedy v. Kingston, 3 Jac. & W. 431. ' Vol. I, 486. ' DaTies v. Thorns, 3 De. Or. & Sm. 347. " Davidson i). Proctor, 14 Jur. 31 ; Walsh v. Acton, 4 Ves. 171 ; Bird V. Wood, 2 8. & 8. 400. ' Walter v Maunde, 19 Ves. 428. " Kennedy v. Kingston, 2 Jac. & Walk. 431. DEFINITBNESS OF OBJECT, . 227 But an express gift to tliem in default of appointment will have this effect according to the maxim, that an express gift precludes implication, and if the gift in default of appointment is to other objects as well as. those contemplated in the power, a qualification imposed on the former wiU not he necessarily extended to the latter.^ Sometimes the donee of the power and its objects will take jointly.® But this rule is dot of very frequent application.* K the donee of the fund or power be a parent pf the ulterior beneficiaries, he will, in a doubt- ful case, be more likely to be decreed to take the absolute interest, than if he is no relative of the other parties.^ A devise with an absolute power has been in some American cases held to create no trust, even though there be quasi precatory terms added.® If the gift be clearly in trust, and the trust fail through uncertainty, there is a resulting trust to the testator's heir or next of kin, according as the subject matter of the gift is realty or personalty.* The doctrine in Burgess v. Wheate ^ does not apply in these cases. But if the gift be couched in absolute terms, subse- quent precatory words will not cut it down to a mere trust.* ' Smith V. Death, 5 Madd. 371. ' Jubber u. Jubber, 9 Sim, 503; Chambers v. Atkins, 1 Sim. & Stu. 283 ; He Harris, 7 Exch. 344. ' Crockett v. Crockett, 2 Phill. C. C. 553. « Thorp «. Owen, 3 Hare, 607. ^ Kinter v. Jenks, 43 Penn. St. 448 ; citing Heath ». Knapp, 10 Watts, 405 ; 4 Penn. St. 238. " Fowler ®. Garlike, 1 R. & My. 233 ; Stubby v. Sargon, 2 Keen. 253 ; Briggs ®. Penny, 3 Mac. & G, 546 ; Bernard v. Minshull, 1 Johns. 276. ' 1 Eden, 93. ' Bonser «. Kinnear, 2 Gif. 195 ; see Wells .«. Doane, 3 Gray, 201 ; «* jparte Payne, 3 You. & C. 636 ; 3 Jarm ; 343. 228 DEFINITENBSS OF OBJECT. Where an inferest and not merely a power is trans- ferred to the trustee, any property not required for the purposes of the trust will thus sometimes belong to the trustee beneficially, and there will be no resulting trust for the testator's heir at law or next of kin.^ Even when the court will execute the trust, yet, if it be a, trust by implication, that is to say, if an interest and not a mere power be given to the donee, he will during his life have all the incidents of propriety, as, for in- stance, the righ.t to fell timber.^ Indefiniteness of object, it must be remembered^ does not defeat a charitable use according to the pre- ceding rales.* The testamentary draftsman should carefully avoid all ambiguous directions, and state clearly, whether each trust was intended to be imperative, or was left wholly in the discretion of the trustee. Unless the will is thus explicit, or else has been drawn after an ap- proved technical model, it is likely to be litigated in the present supposed shifting state of the authorities both here and in England, respecting precatory trusts or trust powers. "When the power is one of distribution, the implied beneficiaries take as tenants in common. But if the power is one of selection, they take as joint tenants.. This is Jarman's opinion.* The distinction, however, seems refined, and as equity constitutes donees under executory trusts tenants in common, there is reason to contend that, in the absence of authority on the point, equity would regard the trust as so far executory, and ' Wood V. Cox, 3 My. & Or. 684. " Wright V. Atkins, 17 Ves. 255. ' See chap. 26, m/m §6, Charitable Uses, ' Vol. II. 168. DBFlNlTETffESS OF OBJECT. 229 reqiiiring the substantial action of the court, as to» en- able it to use its whole equitable functions, and to con- stitute the beneficiaries tenants in common. Where the property is given in default of appoint- ment to persons individually (and not as a class), as tenants in common, and one of them dies in the lifetime of the testator, the power and the gift lapse pro ta/nto. But, if all survive the testator, and one dies afterwards, the power still remains as to the whole. The distinc- tion seems to be founded in reason. The power being one of distribution only is an accessory of the gift, and, when the principal lapses pro tanto^ the accessory fol- lows pro fata. But when the gifts all vest by reason of the beneficiaries surviving the testator, the power also is rendered indefeasible, and may be exercised ir- respective of events not expressly limiting its execution. The distinction is at all events established by author- ity.^ If the, objects are joint tenants, or a class, neither the gift nor power can suffer by lapse, unless all the members, or all but one, die in the lifetime of the testator. As* an appointment cannot be made to a deceased subject to the burden, his personalty was not increased by the mortgage.® As to what acts will amount to an adoption of the mortgage, so as to transfer its primary onus to the de- visee's personalty, see the notes to Duke of Ancaster • 1 p. Wms. 163. ^ Lupton V. Lupton, 3 Johns, Ch. 614 ; McKay v. Green, 3 Id. 56. ' Hawley v. James, 5 Paige, 318, 448, 469. •» But see Thompson ®. Thompson, 4 Ohio, N. S. 333. ^ See Cumberlama v. Codrington, 3 Johns. Ch. 339 ; 3 Story Eq. Jur. § 1348 ; 4 Kent, 5 ed. 430. » See Hughes v. Dehon, 3 Gray, 305. 234 INCUMBRANCES. V. Mayer.^ Giving a bond or covenant oii the transfer of the mortgage will not have this effect. But, if the naortgagee be a party to the transaction, the case may, with a slight variation of circumstances, involve an adoption of the debt, as between the real and personal representatives of the owner of the land mortgaged. Of course, any explicit act mter vwos, or ' plain intima- tion in the will, will vary the rights of the mortgagee's heir or devisee and next of kin. Yet, to shift the burden from realty to personalty, the testator must have di- rectly contracted to meet it, or else expressed a clear intention in his will that the personalty was to be the primary fund for satisfaction of the debt.^ Semble, the implied adoption of a mortgage by a testator must work a novation of the real contract, in order to alter the relative rights of his real and personal representatives. It must be not a mere personal cove- nant even with the mortgagee, but a fresh or an addi- tional chwrge on the land as by inserting a new proviso for redemption, or else it must be a plain purchase, not merely of the equity of redemption, but of the mort- gagee's whole interest in the land.* This distinction may perhaps reconcile the cases on this point. The devisee" of a mortgaged estate is entitled to xoreiaticn* out.of : 1, the general personalty ; 2, lands expressly devised for payment of debts; 3, lands de- scended to the heir ; 4, lands charged with debts. If such charge on land be general, the devisee of the burthened land contributes rateably. K no land be charged, and classes 1, 2 and 3 are exhausted, the de- ' 1 White & Tud. Lead. Cas. Bq. 3d. ed. 505 et aeq. "Cumberland v. Codrington, 3 Johns. Ch. 229, 272; see Hunter v. Hunter, 17 Barb. 25. = Cope . Deneale, 1 Pet. 585. = 13 N. Y. (3 Kern.) 373. ■■ 3 Bradf. 142 ; see Smith «. Wyckoff, 3 Sandf. Ch. 77. °- 26 Barb. 356. ' Gridley «. Gridley, 33 Barb. N. Y. 35. ' Olmstead a. Olmstead, 4 Comst. 56. ° Gardner «. Gardner, 3 Mason, 178; S. C. 13 Wheat. 498; Taft e. Morse, 4 Met. 533. A SOLE FUND. 243 ment of charges to continue until a child arrives at a certain age, will not, as a rule, be determined by tlie child's death before the period spfecified.^ Doubtful words will not release the personalty from its primary liability to the testator's creditors.^ Indeed, if words anywhere in a will are not interpreted by the context, they will receive only their legal import.^ The fact that a State law renders lands liable to the payment of a testator's debts, wiU not affect the construction of a charge of debts in the will. And if the creditors will not levy off the property specifically allotted for the payment of their debts, the devisees of such property can marshal.* Debts specif- ically charged, and not coupled with a general charge of debts, will bind a purchaser frord the devisee of the land so charged, in the United States as well as in England.^ The priority of the order of charges will sometimes depend mainly on the order in which they are men- tioned in the will.* The real estate, however, is ren- dered the primary fund more readily where the charge is of a specific debt, such as a mortgage, than where there is a general charge of debts.'^ If a specific portion of personalty is appropriated for payment of debts, that portion, unlike land, is the j)riniary fund.® § 3. ^ sole fund. The real and personal estate are wholly adminis- tered pari passu, where the testator directs his land .' Hawley v. James, 5 Paige, 318, 463. ^ Leaver v. Lewis, 14 Mass. 87; 18 Pick. 39. ' Annable v. Patch, 8 Pick. 363. • Potter ». Gardner, 13 Wheat. 498, Supreme Ct. 1837. ' Morancy v. Quarles, 1 McLean, 194. » Smith V. WyckofiFe, 3 Sandf. Oh. 77. ' Evans v. Cockeram, 1 Coll. 438. ' Bootle i>. Blundell, 1 Mer. 193. 244 INOUMBKANCBS. to be sold, and mix:es up tlie proceeds with his personalty in one common fund, charged, either with debts, legacies or annuities.^ Sometimes the real estate is the sole fund liable to the charge. This happens where there is a direction to sell land and to pay a certain specified sum not a debt, out of the proceeds. In other cases, if the real fund proves deficient, the personalty may be only secondarily liable.* In other words, the legacy will be demonstrative and not specific,* and therefore, will not be adeemed if the testator sells the land. Where the charge is in its nature real, as a jointure or portions under a power, or a devise with a direction to pay certain sums of money, as distinguished from a trust for debts or legacies generally, the personalty is- not at all liable.* § 4. Bower. Dower being a^common law right, the presumption is against a widow's being put to her election respecting her dower. Therefore, neither a bequest to her, nor a trust for sale,® nor a devise of part of the land, nor a charge on the whole land, nor a devise of the land to a third person defeats her claim, to dower on the remain- der. Even a legacy to her of a share of the proceeds of land directed to be sold will not be deemed absolutely irreconcilable with her claim to dower, but the lands will be sold subject to her dower. So, a direction as to the surplus rents will imply that the natural order of ' Eoberts v. Walker, 1 R & My. 753 ; Kidney «. Coussmaker, 1 Ves, J. 436 ; 2 Yes. J. 267 ; Tracy d, Tracy, 15 Barb. 503 ; Whitman v. Norton,, 6 Binn. 395 ; Taft v. Morse, 4 Met. 528. ^ Hawkins, p. 290. ' Foote Appt. 23 Pick. 399. * 3 Sp. 819 ; 1 Rop. Leg by White, 731-2. ' Holdich ». Holdich, 2 Y. & C. C. C. 18 ; Gibson «. Gibson, 1 Drew. 43, DOWER, 245 the charges thereon is left undisturbed. In Gib- son V. Gibson,^ even a direction touching the rents until sale was held not to put the widow to an election. This case has gone to the very verge of the law. The question in all such cases is, whether the dispositions are absolutely and totally inconsistent with the claim to dower. If by possibility, or by conceiving any state of facts, no matter how improbable, the whole will may be rendered consistent with the wife's com- mon law rights, these will prevail. This principle is frequently acted upon under wills as to the meaning of words and the effect of charges. The primary import of the word or charge will not be changed for a second- ary sense, if the primary force of the terms used can have a/ny operation.^ It is a rule of construction in America, that equality in the disposition of property by parents among their children is to be favored, and doubtful words will be so construed.^ A widow's claims under a will are also favorably regarded. In Gale v. Gale,* a testator be- queathed a homestead to his widow, or an alternative sum of $1,000, payable within five years after his death, or sooner, if she should prefer to use it in the erection of a house on a certain lot. It was held that the widow could not be barred in her election prior to the expira- tion of the five years, or prior to a tender by- the ex- ecutors of the alternative devise. In Massachusetts, the testator's widow may take a third of the residue of the personalty in addition to any gift under the will.^ In that State and New York, a ' B. ' See Part 1, Prop. II ; infra, chap. 33, § 5. ' Horv^itz V. Norris, 60 Pa. St. 361. * 48 111. 471. * Kempton Appl. 33 Pick. 163 ; see Crane •». Crane, 17 Pick. 433; see Mass. Key. Stat. c. 60, § 11. 246 INCUMBRANCES. widow is presumed to elect in favor of the will, in case- she does no positive act of election within the statutory- period. But in England a beneficiary is always pre- sumed to elect against the instrument in question, ex- cept that the court will elect for an infant in the manner most advantageous for him. In Illinois, any provision by will is presumed to bar dower, unless the widow repudiate the gift within six months.^ The phrase " subject to the dower and thirds of my wife," does not entitle the wife to a share in the person- alty, the meaning of the phrase referred to being well known.^ A legacy to the wife in lieu of dower fails by reason of her electing to take dower.^ But a devise of testa- tor's whole estate, with remainders over, is not necessa- rily in lieu of dower, and she may take one-third as dowress and the remainder as devisee.* However, a provision for the widow under a trust vesting the entire legal estate in trustees is inconsistent with her right to dower,® and puts her to an election between the testa- mentary provision and her dower. A general devise of the testator's real estate does not necessarily compel the widow to elect between her dower and a legacy given her in the will. She can retain it and all other benefits given her by the will, unless her retention of her dower operates to defeat some other disposition in the instru- ment.^ Thus, if the testator's land is devised to his widow and his children, equally to be divided between them, this excludes her dower.'^ But a mere annuity, payable ' m. Rev. Stat. 1833, p. 634 ; see 1 Jarm. S42, note by Judge PerTsins. " O'Hara v. Sullivan, 80 How. Pr. 378. " Hawley v. James, 5 Paige, 318. ^ Lewis «. Smith, 9 N. Y. (5 Seld.) 503. ' Savage ». Burnham, 17 N. Y. (8 Smitb), 561. " See Chalmers v. Storril, 3 Ves. & B. 333. ' lb. DOWEK. 247 out of the dower land, is not inconsistent witli a claim of dower. There must be an absolute inconsistency be- tween the claim of a beneficiary and the dispositions in a will to raise a case of election." An election, however, must be made by her if there is a devise, either to her- self or to others, inconsistent with her claim to dower. Thus, a gift to her of a share or proportion of the land or rents will be considered as inconsistent with her daim of her common law share.^ So if the land is devised to a third person, and the mode of his enjoyment of the property, as directed in the will, is inconsistent with dower, she will be put to her election if she tates any benefit under the will. These are cases of necessary implication ; but if, by any conceivable hypothesis, the dispositions in the will can be reconciled with the wife's common law rights, she will not be put to her election. In the cases mentioned, however, dower would be in- consistent with the terms of the will. In like manner, powers of leasing, of occupation, or of managing the land, conferred on trustees or others, are also held to be inconsistent with a right of dower, which implies an enjoyment by metes and bounds.^ Where a gift is given to the wife in lieu of dower and the devise of the dowry lands determines, the heir takes then discharged of the dower.* But it has been decided that she can claim a share of the personalty if its bequest is void ; senible, also, if the devise of the realty is void and not merely determinable. By the 3 and 4 Wm. 4, c. 105, a widow's dower is placed wholly at the mercy of the husband. Yet it is not defeated in England even now by a mere bequest, ' Dowson V. Bell, 1 Keen, 761. = Reynolds «. Torin, 1 Russ. 129. ^ Roadley «. Dixon, 3 Russ. 193. * See Pickering v. Lord Stamford, 3 Ves. 837. 248 INOUMBBANOES. nor by a devise to her of land not liable to her dower. By the English dower a,ct referred to/ the widow's dower is subject to all the dispositions in the will, and a devise of the land to another, or of any interest in the land to the widow, absolutely defeats her claim " unless a contrary intention appears " by the will. A devise to the widow of land not liable to dower would seem to preclude her claim to dower, by the terms of the statute. Yet, the contrary seems to have been de- cided in England. A gift of personalty to the widow does not come within the terms of the act. It gives the widow dower of trust estates as a sort of set-off to the injury done to her dower rights by the general scope of the enactment. In the American States the same rules as to dower apply as in England prior to the act men- tioned. Here, therefore, a widow is not entitled to dower of trust estates, unless a local statute provides to the contrary. Although parol evidence, as a rule, is not admissible to raise a case of election, yet in some instances such evidence has been admitted in America.^ Cases of this sorf, however, are infirm as general authorities, espe- cially with respect to the reception of parol evidence, the rules for admitting which are daily more and more approximating a scientific shape in America. There has been considerable positive legislation in the various States on the subject of dower.^ ' §§ 4, 5. " Bailey v. Duncan, 4 Mon. 365, 366. ° See 1 Jarm. 397, note by Judge Perkins. CHAPTER XIX. ELECTION. The doctrine of election is founded on the principle that a person cannot take a benefit under a will or deed without being bound or estopped by the contents of the whole instrument. The doctrine is acted on in the American courts. Accordingly, if a testator deals with the property of one who is a beneficiary under the will, the beneficiary must either waive the benefit given to him by the will, or else acquiesce in the disposition made of his property by the testator. If he prefers retaining his own property, then equity will appropriate the interest given him in the will, in order to make com- pensation to the other party.^ The statements in the will are an estoppel on all the beneficiaries. Therefore, it is not competent for them to show that a child has not received the advance- ments mentioned in the will, with any view to enlarge the provision made for such child by the will.^ A case of election will not be raised, if it be possible to construe all the provisions in the will to relate to the testator's own property or powers.^ But, any in- terest, however slight, such as a small annuity given to the heir or next of kin, may put them to their election, in case other provisions of the will are void.* It is not ' Havens v. Sackett, 15 N. Y. (1 Smitli), 365. = Painter ». Painter, 18 Ohio, 347. = Havens v. Sackett, 15 N. Y. (1 Smith), 365. * Arnold v. Gilbert, 3 Sand. Ch. 531. 250. ELECTIOK. material to determine wbether tlie testator was aware that lie was raising a case of election or not, provided lie had testamentary capacity. A person electing against a will loses only what is sufficient to compensate the other object of the testator's tounty. The object of the court is not forfeiture, but compensation, to the disappointed beneficiary. The doctrine is, therefore, not very strictly enforced, and a beneficiary may retain his gift, and yet derive property from another who elected against the will. The doc- trine, too, does not apply to creditors.^ Parol evidence is not admissible to prove a case of election. It must, if available, appear on the face of the will* in clear terras. Therefore, a mere general devise of land, even if the testator had no such prop- erty, never raises a case of election.* If there is a refer- ence to lands at a particular locality, of course, the case is different. Where wills of realty speak only from the death of the testator, a general devise of land is still less potent to raise a case of election than where wills of land speak from their date. For, as the testator may buy lands after making his will, and these may pass by it, it is not clear that he intends ta convey any property not his own. But this is the assumption of fact on which the doctrine of election rests. If a foreign heir seeks part of the personalty, he will get it by the testator's domiciliary law, without incurring any peculiar obligation which his own law would impose on him as heir.* Conversely, if he seeks to shift any special charge from his land to the general ' Kidney v. Coussmaker, 13 Veg. 136. ' Story Eq. Jur. § 1092, and note ; see Hapgood v. Houghton, 22 Pick. 480; sapm, Part 1, 171. » Doe d. Chichester, 4 Dow, 76. " Balfour v. Scott, cited in 5 Ves. 750 ; 2 Ves. & B. 131. BISECTION. - 251 personalty, lie will fail in sucli claim.^ The reasoning of Sir Wm. Grant as to these two different questions, however, is not satisfactory. All the liabilities of the general personalty of the deceased, it would seem, should, in principle, be admitted by the administering court. The general personalty is as much the property of the creditors of the deceased as it is of his next of kin. The question whether the land is in or out of the juris- diction ought not be deemed to affect this liability of the personalty in the court of administration. How- ever, the cases cited would probably be followed in America. In Hunter v, Bryant,^ a devise to testator's wife was, under the particular circumstances of the will, taken to be in satisfaction of a bond given to her before mar- riage, but subject to her election between the bond and the devise. This privilege of electing was also held to have passed to her devisee. A daughter, owning a lot subject to her mother's life estate in a third of it, directed her executors to lease all her real estate, and pay annuities to her mother and others out of the rents. It was held that the- mother was not compelled to elect, but took the an- nuity in addition to her own estate, though it might be otherwise, if the charge was on the whole lot specif- ically.^ In Pinckney v. Pinckney,* it was held that a legacy to one of the next of kin, " in lieu of all rights she might have in the real or personal estate " of the tes- tator, did not require the legatee to elect between the legacy and her share as next of kin, of a portion of ' Drummond v. Dmmmond, cited in 2 Ves. & B. 133. ' 3 Wheat. 33, reversing 3 Wash. C. Ct. 848, ' Harrington v. Hughes, 1 Paige, 569. " 1 Bradf. 269. 252 ELECTION. the estate not disposed of by tlie will, and that she took both. It thus appears that a testator cannot bar his next of kin from a share of his estate by mere words of negation. Consequently, as regards rules of construction, the next of kin are just as much favored as the heir. Both have vested rights which the court vsdll not divest without express words or necessary im- plication. The court will elect for an infant. An adult may elect by parol, or by any matter in pais. If, however, the person bound by a covenant to convert money into land, or conversely, becomes also entitled to the benefit of the covenant, the property is then " at home," and retains unconverted.^ In Van Dyke's App.'' indeed, the personal estate was given to the daughters, and the real to the sons, but the will was not executed so as to pass real estate. Yet the daughters were compelled to elect. The decision has not much lateral support in the analogous cases, but it has in principle. In most of the States, the testator must be com- petent to dispose by will of the property in question, and the will must have been legally executed before a case of election arises, except that a testator having ca- pacity to bequeath personalty, but not realty, may yet raise a case of election as to realty by giving his be- quest expressly on condition that the legatee acquiesce in the transfer of the realty. Unless the legatee com- plies with this injunction, he forfeits the whole legacy, and not merely a sufficient part to compensate the dis- appointed devisee, as happens under a case of election proper. Unless the medium of a condition is resorted to, the beneficiary under the will may, in the case put, keep ' Chichester v. BickerstaflF, 3 Vern. 295. = 60 Penn. St. 480. ELECTION. 253 the testamentary gift, and yet refuse to part with any property, of his own which the testator had not capacity to devise, or did not dispose of by a will appropriately executed. A married woman who executes a power, and tries to put the appointee to an election, by devis- ing away property from him which she is incapacitated from doing by coverture, will fail to raise any case for election. The appointee can retain the gift appointed, and yet refuse to part with his own property.^ Semhle, the married woman could not even effectuate her de- sign of an election by imposing any condition on the appointee. Such a condition would be ultra vireSy and void. Indeed, the substitution of a condition for an elec- tion seems to be altogether technical and contrary to principle. Either the beneficiary ought to be put to his election whether the will was properly executed by a competent person or not, or else a condition ought not to be deemed to overcome the inherent invalidity of the disposition. However, the distinction seems to be well settled by authority.^ Any change in the law ought to be perhaps to deem every case of election as one of im- plied condition. The margin for elections is much narrowed by the statutes which have assimilated the- law of wills of realty to that of personalty, and have made realty assets for' the payment of debts.* ' Rich V. Cockell, 9 Ves. 370. ' Boughton v. Boughton, 3 Ves. Sen. 13. ^ As to election, see further, Parsons v. Snook, 40 Barb. 144; Sullivan «. Mara, 43 Barb. 523; Tobias v. Ketchum, 33 N. Y. 319 ; Havens «• Sackett, 15 N. T. 365 ; O'Riley ii. Nicholson, 45 Mo. 160 ,; Storring v.. Borren, 55 Barb. N. T. 595. CHAPTER XX. ^ 'VESTING. § 1. Interests in land. A vested remainder, according to Fearne's definition, is a remainder that has a present capacity to take effect in possession, if all prior limitations determined. He explains the nature of a vested interest thoroughly and completely, although his reasoning with respect to a limitation to a trustee to preserve contingent remainders is entirely inconsistent with his own de- definition ; inasmuch as a trustee to preserve &c. has no capacity to take the estate, unless the previous limita- tion determines on a contingency not certain of ever happening. The word "vested " in a will is sometimes construed as denoting possession of property already vested in interest,^ and a reference to estates "gjven," vested, or to which the donees were " entitled " may, owing to the context, refer only to estates vesting in possession at the period referred to.^ In like manner sums bequeathed to children, not to "vest " until major- ity, vest at once in interest, though not in possession, until majority.^ In a doubtful case an estate will be more readily construed to be vested than contingent.* For the law ' Berkeley » Swinburne, 16 Sim. 375. " Kane v. Astor, 9 N. Y. (5 Seld.) 113. " Thompson «. Thompson, 38 Barb. 433. " Dmgley v. Dingley, 5 Mass. 539; 3 Pick, 469; 4 Pick. 198; 31 Pick. 314 ; Bldiidge t>. Eldridge, 9 Cush. 516. IKTERBSTS IN LATJTD. 255 favors tlie vesting of interests.^ Therefore, remainders and future estates that relate to the determination of prior ones are vested, if there is a present capacity in the ulterior donee to take were there no preceding interest. The phrase " in default of issue," too, means a failure of issue, and does not render a remainder there- on contingent on there never being any such issue or on any such estate not failing by lapse.^ Even certain apparent contingencies are not construed to be really such. Thus on a devise to a widow for life, and if she marry again, over, the remainder takes effect, whether she marries or not.. The form of such limitations is unimportant, if the intention be to have the remainder vested. Though a future devise be contingent in terms, yet, if there is a preceding devise covering the whole period before the contingency, the ulterior devisee takes a vested interest, the prior devise being construed as an exception, and not a condition, to his taking. Thus, under a devise of lands to trustees, until A. shall attain twenty-one, and if or when he shall attain that age then to him in fee, here A. takes a vested interest.^ A fortiori will the rule prevail, if the prior interest, as in the case cited, is for the benefit of the devisee. And where a devise standing alone would be con- tingent, as to A. if he should attain twenty-one, yet, if there is a devise over, if he die under age, or on any other event, this gives him a vested interest at once, as the devise over shows that he was to take an inde- feasable interest, if he attained age.* ' 4 Kent, 5th ed. 303 et seq. ; Dingley v. Dingley, 5 Mass. 535 ; see Winslow ». Goodwin, 7 Met. 363. ' Doe V. Dacre, 1 Bros. & Pull. 250; Bates v. Webb, 8 Mass. 458; Fer- son 1). Dodge, 33 Pick. 287. ' Edward v. Symonds, 6 Taunt. 313. ' Peyton «. Bury, 3 P. W. 636. 256 VESTING. If there be a devise to trustees in trust to convey^ yet, the rule in Peyton v. Bury^ will be adopted, al- though executory limitations are generally to be con- strued with much care. The context- in all these cases is to be studied with attention, and any express decla- ration or condition as to the period of vesting will, of course, pnt all implied rules to silence.^ A dievise after payment of debts, however, does not postpone the vesting.^ But the period of possession or of a division (when such is to be made) is often coincident with the period of vesting, which it postpones.* So, if the testator er- roneously supposes that he has no power to dispose of the estate, except on the contingency plainly indicated in his will, his error of law or fact does not prevent the devise from being contingent. A contingency affecting a particular estate will, of course, sometimes affect, the whole series of remainders. But if these are substantive gifts, or if there, is any point of substantial contrast between the preceding- estate and the ulterior ones, these will not be deemed affected with the contingent nature of the previous- estate.® Nor will a vested estate be divested, unless all the conditions and contingencies affecting the ulterior divesting estates are fulfilled.^ The courts in the United States incline to the vest- ing both of devises and bequests.'' Yet a remainder will not be deemed vested during the currency of the particular estate, if the testator has disposed of the in- ■ 3 p. Wms. 626. ' Glanvil v. Glauvil, 3 Mer. 38. ' Barnardiston «. Carter, 1 P. W. 505. ■■ See 4 Kent, 5th ed. 306. " Lethiellier v. Tracy, 3 Atk. 774. ° Homes «. Herring, 1 McCle. & You. 395. ' Kane v. Aston, 5 Sandf. 467. PUTUEE VESTED GIFTS OE LAND. 257. terest or dividends only for a pai^ticular purpose/ The general rule is, that remainders (if not contingent in their own nature), vest in interest at the same time as the first estate vests in possession. A. gift to persons living at a certain period is, however, contingent as to the persons who will be beneficiaries.* But a substitu- tional gift to children in place of their parents dying before the period of distribution is vested,^ and a be- quest to a person when he should attain a specified age, with a direction to apply the, interest, meantime, to his education is vested.* In Converse v. Kellogg,^ it was held that under a devise of " all the residue of my estate to my children," naming them, " and to the de- scendants of such of them as shall have died in equal por- tions, but not to be divided until ten years after the death of my wife," the children or their descendants, took present vested interests on the death of the tes- tator. § 2. Future vested gifts of land. As the courts incline to regarding limitations as vest- ed^ and conditions as subsequent if the context is at all doubtful, therefore, a devise to A. when, (but not if), he attains a given age, and, meantime, to B., gives to A. a vested estate, and to B. a term.'^ Even if there is a limitation over in ;:jase A. die under the specified age, his interest, nevertheless, will be vested. The courts- will deem an interest in land vested where they would hold a similar gift of personalty contingent by reason of the whole of the interest not being given meantime.^ ' Drake v. Pell, 3 Edw. 351. = Phelps v. Phelps, 38 Barb. 131 ' Beekman v. Schermerhom, 3 Sandf. Ch. 181. * BurriU «. Shell, 3 Barb. 457. * V Barb. 590. « Ferson ». Dodge, 33 Pick. 387. "• Boraston's Case, 3 Co. 31, a, b ; Winslow «. Goodwin, 7 Met. 363. * James -b. Lord Wynford, 1 Sm. & G. 40. Q 258 VESTING. Sometimes, indeed, if ttere is no preceding interest, or if the word "if" and not "when" be used, the devise will be deemed contingent, unless there is a gift over, in the event of the donee dying under the specified age- Under such a context he will take a vested interest, unless the condition is imported into the description of him in the will, as if the devise be to such of the chil- dren of A. as shall attain twenty-one. If a precedent estate determines by lapse, the ul- terior vested interest then takes effect in possession.^ Boraston's case,^ has been followed in various decisions in the United States.^ But if there is a devise over to others of the same class, in case of the first devisee dying under the prescribed age, his estate will be deemed con- tingent.* This seems to be the more natural con- struction. In Zeller v. Eckert,® A. testator devised to his widow until his son should attain fifteen. The widow was held ■ entitled to hold for fifteen years, even though the son died previously.^ In Farmers' Bank v. Hoof,' A. devised to his wife during widowhood, but in case she should marry again, then to his daughter and her heirs. Thq daughter's remainder in fee was held to be vested.^ As to vested charges or portions, see Fuller v. ' See Gotch v. Foster, 5 Law Rep. Eq. 311. = 3 Co. Rep. 19. ' Hodgson V. G-emmil, 5 Rawle, 99 ; Cowdin v. Perry, 11 Pick. 503.. 508. ■■ lb. " Supreme Ct. 1846, 4 How. 389. " See farther as to vesting. Walls v. Garrison, 38 Ga. 341 ; Roberts' Ap- peal, 59 Pa. St. 70 ; McGill's Appeal, 61 Pa. St. 46 ; Kerr v. Rosier, 62 Pa. St. 183 ; Abbott's United States Digest, Vol. I, 461. ' Moon V. Stone, 19 Gratt. (Va.) 130; Wiggins v. Rlount, 33 Ga. 409; Buzby's Appeal, 61 Pa. St. Ill ; Pike «. Stephenson, 99 Mass. 188. ° See Lovett v. Gillender, 35 N. Y. 617 ; Carmichael v. Carmichael,. 4 Keyes, 346 ; Roome «. Phillips, 24 N. Y. 463. LEGACIES CHAEGED ON LAND. 259 Wintlirop ; ^ and as to vested charges, see further Bur- rell V. Steill.^ A vested interest is assignable, devisable, and trans- missible on intestacy. An estate vests under a devise before entry. But, of course, a devisee may disclaim.® To give the devise effect as against the heir, the New- York statutes require the will to be proved and recorded in the surrogate's office within four years after the tes. tator's death.* As to the admission of wills of person- alty in the State of New York, see also the Kevised Statutes.® § 3. Vesting of legacies charged on land. Legacies charged on land, if not payable until a future date, do not vest prior to that period, even though interest be given in the meantime,® unless the postponement is for the convenience of the estate, as, where there is a preceding life interest.' In such a case the legacy does not sink for- the benefit of the inherit- ance, but is vested and transmissible. A legacy payable out of both realty and personalty is governed by the rules relating to personalty, so far as the personal estate extends.^ Land directed to be sold and terms of years are for this purpose considered to be personalty. But the assets will not be marshaled ' 3 Allen, 51 ; Lane ». Lane, 8 Allen, 350. " 2 Barb. Sup. Ct. 457 ; Harris ®. Fly, 7 Paige, 421 ; Conklin y. Moore, 2 Bradf. 179 ; Sweet ». Chase, 2 N. Y. 73. ^ See Townson «. Tickell, 3 B. & Aid. 31. * See Bev. Stat. N. T. Vol. H, 57-59, as to personal estate. " Vol. II, 60, 62; n. 66-68, and the Act of 20th April, 1830; 4 Kent Com. 534. ° Pearce v. Loman, 3 Ves. 1 35. ' Remnant v. Hood, 2De G. F. & J. 410. * Prowse ». Abingdon, 1 Atk. 482. 260 VBSTIIfG. for the legatee.-^ However, the rule in Pearce v. Low. man would probably not be followed in the United States. A legacy to one when he attains age is often con- strued as vested, though no interest is payable mean- time,^ especially if there is a limitation over, in case of lapse or some other contingency.® Where a sum is to be raised within a certain period, it is vested at once, the period specified being only the major limit of the time for raising the sum, unless the testator's interest is reversionary.* Bequests are governed by the same general prin- cipleSj as to vesting, as devises, although limitations of the two kinds of property are not always construed in the same way.^ Pecuniary legacies charged on land, however, are construed as if dispositions of realty. A legacy to a person in esse simply is vested on the death of the testator. A legacy to him at a future date, as when he attains age, is not vested until -that period, even though interest meantime be given for his main- tenance, unless the future date relates to the estate, as if it be after the determination of a prior particular estate.® The distinction is obvious ; in the one case the contingency relates to the person of the donee ; in the other, to the subject-matter of the gift. If interest is given meantime, however, it will, in the United States, be held to be vested.'' If the legacy is payable out of a future sale of land. ^ Pearce «. Lowman, 3 Vea. 185. " Caldwell v. Kinkead, 1 B. Mon. 231 ; Lister «. Bradley, 1 Hare, 10. ' Lowther v. Condon, 3 Atk. 130. * See Bowker v. Bowker, 3 Gush. 319. ' See Ferson «. Dodge, 33 Pick. 387. ' Birdsall v. Hewett, 1 Paige, 33 ; Childs v. Russell, 11 Met. 16. ' Gifford ». Thorn, 1 Stockt. N. J. 703. VESTING OF PERSONAL LEaACIES. 261 to be made on tLe deatli or marriage of the devisee, the legacy is vested, the postponement being for the con- venience of the estate.^ In Bowker v. Bowker,^ after a devise upon condi- tion that the devisee pay $100 annually for seven years to his brother, the brother died before the seven years elapsed, yet his executors vrere held entitled to receive the annuity for the rest of the seven years. § 4. Vesting of personal legacies. „ In the civil law, the term vested means uncondi- tional and transmissible, while non-transmissible or con- ditional interests were termed contingent. But, in our law, a contingent interest is not always intransmissible. The term vested, with us, means a certain interest in a certain person. The term contingent, on .the other hand, denotes that either the person or event on which the gift depends is uncertain ever to exist. The former class of interests is saleable, although the actual pos- session of the property may be deferred. When the donee is uncertain, however, it is clear that the interest is unsaleable. If it is limited at a remote period, there- fore, it may keejp property out of commerce and be a perpetuity, unless it is a remainder at common law, and, as such, destructible by the preceding tenant of a vested freehold. It is genei'ally considered that if a legacy is given to A. at twenty-one, or to be paid to A. at twenty-one, it does not vest till payable. But, if given to A. to be paid to him at twenty-one, it is vested at once. This distinction has been followed in the United States,^ and ' Sharpsteen v. Tillon, 3 Cow. 651. ^ 9 Cush. 519. = Marsh v. Wheeler, 3 Edw. Ch. 156; Kihler «. Whitman, 3 Har. 401. 262 VESTING. SO mTich importance has been attached to tlie insertion of the word "payable," that a legacy to one "if he shall arrive at the age of twenty-one years, then to be paid over to him by my executor " is not a contingent, but a vested legacy.^ It is often, indeed, very difficult to determine whether the futurity is of the substance of the gift or merely of the time of payment. Division at a future period, how- ever, does not, more than payment, at such a -time sus- pend the vesting. But, if the payment or distribution depends on a contingency, as marriage with consent, this will render the legacy contingent,^ and, in case the legatee dies without fulfilment of the condition, the legacy is not transmitted. A gift of interest, unless it be of a portion of such proceeds for maintenance, is almost con- clusive evidence that an immediate vesting was intended by the testator. But, a direction that the interest shall be added to the principal until the legatee attains age does not suspend the vesting.^ A bequest to A. "upon," or "at," or "when," or "if" he attain a given age, or on his marriage, is contingent. A like rule applies to a gift to a class.* The question in such casps usually is .whether the gift and time of payment are distinct. If they are, then, as each clause in a will is to have some operation, the gift is deemed to be vested at once® — due at once and payable at a future time — especially if interest is given meantime.® 'Furness «. Pox, 1 Cush. 134; see Eldridge v. Eldridge, 9 Cush. 516. " Atkins V. Hiccocks, 1 Atk. 500. ' Stretch v. Watkins, 1 Madd. 353. * Leake e. Eobinson, 3 Mer. 368. ' Paterson v. Ellis, 11 Wend. 359; Turk, ex parte, 1 Bradf. 154. " 6 Ves. 349; Van Wyck v. Bloodgood, 1 Bradf. 154. VESTING OF PERSONAL LEGACIES. 263 In SoTitliern v. Wallaston/ however, the gift was to such of the children of A. as should attain twenty-five, with interest meantime, and the bequests were held to be contingent. For, accumulation is only one ground for presuming that the legacy to which it relates is vested ; and this implication may be outweighed by the context.^ The period of actual payment will confine the vest- ing of a bfequest made to the children of A. " when the youngest child attains twenty-one," to such of the chil- dren as shall attain that age.^ They or their lepresent- atives, and not any dying under twenty-one, will par- ticipate. This case of Leeming-y. Sherratt seems weak in point of principle. The youngest child was probably fixed upon by the testator merely in order to prevent a premature division, and not as impliedly imposing a condition on the vesting or transmissibility of any of the children's shares. Yet, the decision has been followed by several others, and the case of \ Cooper v. Cooper * is not any real authority to the contrary, as the children in that case were enumerated by name. Requiring a legatee to prove his identity within a specified time in no way affects the vesting.® Neither does the legacy become contingent because it cannot vest in possession during the life of the legatee.^ A gift of interest subject to a charge does not pre- vent the principal from vesting; '' aliter, if the gift of interest is itself contingent or dependent as to its quan- ' 16 B. 166. ' Lyman v. Parsons, 28 Barb. 564. '' Hawkins on Wills, 333 ; Leeming v. Sherratt, 3 Hare, 14. ' 39 B. 339. " Ennis «. Penty, 8 Bradf. 383. « Sweet «. Chase, 3 N. Y. 73. ' Jones V. Mcllwain, 1 Russ. 330. 264 VESTIKG. tity on tlie discretion of a trustee/ unless tliere is a trust for its accumulation. As to vested legacies see farther Bowman's Ap- peal.** The courts lean much to the vesting of residuary bequests in order to prevent intestacy. Yet, a residuary bequest to the children, or to such children as shall at- tain twenty-one, is obviously contingent. A contingent interest, however, is transmissible, when the contingency does not relate to the person of the donee, but to some other person, or thing, or to the subject matter of the gift.« A legacy to a church, if C. continues to be its pastor for seven years, but if not, to C. with interest, is given on a condition precedent, and vests in C. on his retiring from the church with consent of the congregation.* But, a devise to children, "if they should come of age," gives them no right of immediate possession, and the property meantime goes to the heir.^ A condition, however, is often virtually a mere specification of the time when the interest shall vest in possession.* In Brownson v. Gifford ^ it was held that a devise to a mar- ried woman, with a provision that if her husband ad- vanced any claim against the testator's estate, the gift- shpuld be void, was merely a condition subsequent. Wills of personalty, it is to be remembered, are con- strued according to the rules of the civil law. But wills of ^ Palsford v. Hunter, 3 Rev. C. C. 416. " 34 Penn. St. 19 ; Barker ». Woods, 1 Sand. Ch. 139 ; Finney v. Fan- cher, 3 Bradf. 198; ex parte Turk, 1 Bradf. 110; Adams v. Beekman, 1 Paige, 631. = Wilson V. Bayley, 3 B. P. C. Toml. ed. 135. ' Caw V. Robertson, 5 N. Y. (1 Seld.) 135. " Jackson v. Winnie, 7 Wend. 47. " Crosby ®. Wendell, 6 Paige, 548. ' 8 How. Pr. 93. VESTING OP PERSONAIi LEGACIES. 265 realty are interpreted more in conformity with the com- mon law. As to contingent bequests of personalty see further Nash v. Culter.^ If the legacies be given to a class, however, it is thought that the American courts incline to postpone the period of vesting until the time appointed for payment, especially if they are charged on land.^ ' 16 Pick. 491 ; Boone v. Dyke's Legatees, 3 Men. 529 ; Emerson v. Culter, 14 Pick. 108; Bateman «. Gray, Law Rep. 6 Eq. 215; Furness v. Fox, 1 Cush. 134 ; Trustees of Smith's Charities v. Northampton, 10 Allen, 498. ^ See Hawkins v. Everett, 5 Jones, Eq. 42 ; 3 Redfleld, 343 ; Cooper «. Cooper, 7. Jur. N. S. 178; Conklin «. Conklm, 3 Bandf. Ch. 64; Wessenger «. Hunt, 9 Rich. Bq. 459. CHAPTER XXI. • CONDITIONS. § 1. Their nature and incidents. Rules of law are often confounded with rules of construction. Yet there is a patent difference between them. In deeds some rules of construction are rules of law. The rule in Shelley's case, for instance, is a rule of law in a deed ; so is the rule that, under a limitation to one and his heirs, the donee takes a fee mple, or. under a limitation to him and the heirs of his body, an estate tail. These rules of construction are so cogent that any clause to the contrary is void. Therefore, a condition that a tenant in fee shall not alien, or that a tenant in tail shall not disentail the land, is void. This rule applies whether the limitation be in a deed or a will. The legal incidents of estates are of their very essence, and cannot be eliminated from the gifts. Such a restriction would amount to saying, you shall and you shall not have the property. But, in wills there is al- ways the preliminary question of construction. A testator cannot, "indeed, as to the estate limited, give ab- solute property without certain consequences attached thereto, as liability to debts, dower, curtesy, &c. But the question under a will must first be determined, whether the absolute property is given or not ; and, if it is fettered with certain restrictions inconsistent with an absolute interest, the courts may cut down the ab- solute gift, instead of eliminating the incongruous inci- THBIK NATURE AND INCIDENTS. 267 dents, as would be done if tlie docnmentwere a deed. Rules of law, then, are applicable to wills. But tlieir application depends on rules of construction, which, un- like the case of a deed, are as varied as the sentiments expressed by different testators. A condition was a common-law mode of defeating, but not for transferring, an estate. For instance, if land was given to A. and his heirs, on condition that A. should pay a yearly rent to the grantor, or attend at the county court, with power of re-entry to the grantor on breach of the condition, A.'s estate would be defeated by such entry for a breach of the condition. Rents, though not conditions, be it remembered, can be reserved on alienations in fee even since the statute Qtda emrptores. The only effect of that act is, that no tenant in fee can make himself a lord of a manor, or reserve any tenure to himself from his grantee in fee. But, as a rent may be given in fee to a stranger, so may it be reserved by one who has parted with his reversion. Yet, he cannot by reserving a clause of re-entry, resume his old estate on breach of a condition for payment of the rent. Neither can a condition on a deed transfer an estate. It is only the grantor or his heir who can take advan- tage of it. Therefore, at common law, on a grant in fee to A. and his heirs, on condition that if B, returned from Rome, A.'s estate should pass to him or to C, this condition is void. But, in a will, this condition is good. The ulterior estate is thus a shifting use or executory devise. It is no matter how a condition is worded in a will, effect will be sought to be given to it, in this or some other way, if the condition be itself legal. Ac- cordingly, conditions subsequent in wills are usually construed to be conditional limitations. No pi;ecise form of words being necessary to con- 268 CONDITIONS. stitute^ a condition ^ or, indeed, any limitation in a will, a devise to A., "lie paying $1,000 within a month after my decease," imports a condition. Only the grantor or heir could enter for a condition broken at common law, and when an entry was thus made, it defeated all puisne grants by the tenant. Therefore, a release of a condition for once operated to destroy it wholly, else on a second breach without license, the grantor entering would defeat the estate to the creation of which he had assented by his license. In a will there may be a limitation over on breach of a condition. But such a limitation would be void in a deed operating at com- mon law and not by way of use. WJjjen contained in an instrument of the latter description, it is termed a shifting use ; in a will it is called an executory devise or conditional limitation. Conditions of re-entry in deeds are very useful, as they enable the grantor to de- feat the conveyance wholly, and not merely to have a receiver appointed. Accordingly, such conditions are very common in leases. If a forfeiture of a legacy is inflicted upon the legatee, if he do not comply with the testator's in- junctions, yet, if the legacy be not given over, the threat will be deemed to be in terrorem only, and not as concludicg the rights of the parties.^ It is strange that the doctrine that a condition is merely in terrorem and void was ever adopted by the courts. Lord Cran- worth in Dickson's trust * said that no condition should be deemed in terrorem. But, this dictum is opposed to numerous decided cases. ' Part of this cliapter has already been published in the Albany Law Journal, Vol. V, p. 145. ' See Stark i>. Smiley, 25 Maine, 301 ; 4 Kent, 5 ed. 124 ; 1 Jarm. 798, note. ' Pray v Belt, 1 Pet. 670. " • 1 Sim. N. S. 37. THEIR NATURE AND INCIDENTS. 269 The in terrorem doctrine is daily loosing ground. In Haydyn v. Stoughton ^ an estate was devised on con- dition that a school house should be built on the land. The condition was held valid, and the residuary devisee (not the heir at law), was allowed to enter for the breach, twenty years having elapsed from the entry of the devisee. There is no objection to a devise to one, " if he be a citizen of the United States, and as such capable of holding land at the time of testator's death," but, if not, that the lands be sold and the proceeds given to him.^ And yet this condition seems intended to contra- vene the rule of law forbidding aliens to hold land. When a condition is annexed to a preceding estate that never arises, a remainder, nevertheless, may take effect. The previous estate in such cases is a limitation, but not itself a condition, in respect to the ulterior interest.® On a devise to A. for life, remainder, to B. in fee, upon condition that, if the rents were not sufficient for the support of A., the deficiency should be supplied by B., the Supreme Court of Massachusetts held that there was no triist created for A., but only a condition, of which the grantor's heir could take advantage.* This decision, wil>h all respect be it said, seems to be worthy of the days of Perrin v. Blake.^ In Moore v. Moore,® there was a clause in a will re- voking a devise, on account of the intemperance of the devisee, and directing that unless he should reform, the ^ 5 Pick. 538. ° Supreme Ct. 1835, Beard ». Rowan, 9 Pet. 301 ; affirming 1 McLean, 135. ^ Norris V. Beyea, 18 N. T. (3 Kern.) 373. *. Temple «. Nilsori, 4 Met. 568. = 4 Burr. 3579. ' 47 Barb. 357. 270 CONDITIONS. property should be held in trust for three years, to give him time for reformation. The condition was held void, as attempting to create an illegal trust, as suspend- ing the power of alienation illegally, and for uncertainty.. The forfeiture- being thus held void, the devise took effect simply. If the beneficiary accept the gift, he is bound by any condition attached thereto.^ But conditions in wills, can only operate by way of election.^ As to conditions, see further Harris v. Hearne.* § 2. Classification of conditions. Conditions are either express or implied, precedent or subsequent, real or personal, general or special.*^ Conditions in deeds are also distinguished from limit- ations in abridging the estate, and from covenants,, which only give a claim to damages, and not to -an annulling of the grant. But in a will, limitations (for there can be no covenants) and other directions are virtually conditions. The court cannot construe them as covenants, or as giving any claim (except in a case of election), to damages, although a claim in a contract will be more readily construed as a covenant, which may be apportioned, than as a condition. But valid con- ditions in wills are virtually trusts, and will be as such specifically enforced in equity. Conditions are most usually classed only as precedent or subsequent.^ They either relate to the acquisition of an estate or to its retention. Thus, a devise to A., if ' Runnels v. Runnels, 37 Texas, 515. = lb. = 1 Winst. Eq. 93 ; Gridley «. Gridley, 34 N. Y. 130. * Litt, § 335, 338. ' See Fox v. Phelps, 17 Wend. 393. OliASSIPICATION OF CONDITIOKS. 271 lie live to a certain age, and pay to B. a certain sum, imports conditions precedent.^ If such a condition be- comes^ impossible, the estate will never vest. It is sometimes difficult to determine whether a condition is precedent or subsequent, but if it is subsequent and im- possible, then, the former estate becomes indefeasible.*^ As the immediate freehold could not at common law b& limited on a contingency, this is perhaps the reason why the courts incline to construe a condition as subsequent rather than as precedent. Yet a stranger cannot take an advantage of the breach of a condition subsequent in a devise.* In Taylor v. Mason,^ the Supreme Court of the United States held that, if a void condition is precedent, the estate cannot take effect. This doctrine, too, is as old as the common law. Any consideration exacted from the beneficiary, or any duty imposed on him, unless it is spread over a very umisual period of time, is a condition precedent. Sometimes a condition such as the dying of A. un- married, is imposed, on a limitation to B. In such a case, B.'s estate does not vest during the life of A., as the condition may be determined affirmatively or negatively any time during that period," and though suspended so- long, the condition is precedent. Yet, in Woodcock v^ Woodcock,'^ a devise in remainder to A. upon such equivalent as the executors might determine, was held to be subject only to a condition subsequent, as the execu- ' Johnson v. Castle, 5 Vin. Ab. 343, pi. 41 ; Vanhome v. Dorrance, 3 Dall. 317. = Wells V. Smith, 3 Edw. 78. ' Morrell «. Emery, 10 Pick. 507. . ■• Sup. Ct. 1853, Webster v. Cooper, 14 How. 488. ' 9 Wend. 350. ° RandaU v. Paine, 1 B. C. C. 55. ' Cro. El. 795. 272 CONDITIOKS. tors would require time to deliberate in estimating what would be an equivalent consideration. If the condition is at all capable of being construed as subsequent, it will be deemed to be such. Therefore, a condition to be performed at any time will usually be held to be a subsequent one,^ as, for instance, a devise to A. to enable him to support B. In Page v. Hay ward,* lands were devised to A. and B. in case they married a person named S. They married each a person of a differ- ent name, yet they were held to take vested interests, the condition being subsequent,- and being- capable of being performed, as their husbands might die, and they might then marry persons of the coveted name. As a gift of a legacy, when distinct from the time of payment, implies that it is vested, so, if an interest is distinctly devised, and afterwards made subject to a condition, this implies that the condition is subsequent, as to A. for life, but if she marry without consent, then to B.» Jarman* infers from the cases that the presumption is in favor of a condition being deemed precedent where it relates, 1, to the raising of a gross sum out of land, and not to a devise of the land itself; 2, where a pecu- niary legacy is given, and not a residue ; 3, where the act may be performed before the enjoyment of the inter- est begins ; 4, where the condition is capable of being immediately performed ; but, 5, that if a certain tirqje is fixed for the performance of the condition, this strength- ens the argument in favor of its being subsequent. A condition of the nature of a consideration is usu- ally deemed precedent.^ A condition that the benefi- ciary shall cease to resort to public houses is a condition ' Finley v. King, 3 Peters, 376. " 3 Salk. 570. = Lloj^d V. Branton, 3 Mer. 108. ♦ Vol. I, 804. ' Acherley v. Vernon, Willis, 153. cla8Sificatio:n of conditions. 273 precedent, and not void for uncertainty.^ If the condi- tion comprises various acts, all must be performed.* A requirement that the devisee should remain with the testator during his life is a condition precedent, and must be perforftied.^ It is often hard to determine whether a donee is bound to perform a condition within a reasonable tiine, or has his whole life to perform it. But, as a rule, the condition should be performed within a reasonable time.* Any conditiQn subsequent to an estate tail may be defeated by the tenant disentailing the land. Jar- man® inclines to think that, if the estate is given over, this limitation takes effect if a condition subsequent to a prior estate on which it is itself limited becomes im- possible ; in other words, he considers that the impossi- bility of performing a condition subsequent renders the prior estate indefeasible only if there is no limitation over. This opinion he entertains in analogy to the effect of conditions respecting marriage. The American cases recognize the distinctions be- tween conditions precedent and subsequent and those annexed to realty and to personalty. Accordingly, if an illegal precedent condition be attached to a devise, it will not vest* The courts, however, latterly incline to hold gifts in restraint of marriage or lawful cohabita- tion as valid, and the condition alone to be void. If the condition is subsequent, and the property is given over on non-performance, this may divest the first estate, even if the condition becomes impossible.'' But ' See West». Moore, 37 Miss. 114. " Moakley e. Riggs, 19 Jchns. 71, 73. " Den V. Messenger, 33 N. J. L. (4 Vr ) 499. ' Ross D. Iremaine, 3 Met. 4£.5. ' Vol. I, 808. " 3 Greenl. Cruise, 16; see Maddox ». Maddox, 11 Gratt. 804. ' Graydon v. Picks, 3 Atk. 16. 274 CONDITIONS. if the impossibility is owing to the act of the grantor^ the condition is thereby avoided.^ In Taylor v. Mason,^ a condition that the devisee should take an oath that he would make no change in the property during his life was held, under the terms of the will, to be a condition subsequent and to be re- pugnant to the nature of the estate previously granted. It was therefore void. § 3. Conditions in restraint of alienation. Conditions that are repugnant to the nature of a a gift are absolutely void.* There is, consequently, much ground for contending that any condition against alienation, where the condition is not attached to a I'e- version or other assignable interest, is void entirely, and not merely beyond the line of perpetuity, unless there is a limitation over. The nature of the condition is then reversed. For; it operates to assign instead of preventing the assignment of property. A condition contrary to a plain rule of law is admit- tedly void. Therefore, if land be devised to A. in fee,, but with a condition that he shall not alien or subject to debts, this condition is void.* Even a condition not to alien by any mode not tortious and allowed by law is invalid. But a condition not- to assign to a particular person or use as in^ mortmain is valid, for the same reason that a condition in partial restraint of contract is good, though a contract or condition in general restraint of fature transfer or dealing is void. ' United States v. Awedondo, 6 Pet. U. S. 691, 745. " 9 Wheat. 335. ' Stockton V. Turner, 7 J. J. Marsh. 193. , " Hall ®. Tufts, 18 Pick. 455 ; Newkirk ». Newkirk, 3 Caines, 345 ; Bram- hill «. Ferris, 4 Kem. (N. Y.) 44. = Mc Williams v. Nisley, 3 Serg. & R. 513. CONDITIONS IN RESTRAINT OF iLIBNATION. 275 Conditions evidently come within the reason of the rule against perpetuities. Another reason why a re- straint on the alienation of property is often deemed to he void, is, that it is incongruous and inconsistent with the gift itself. A condition, as such, operates, lik'e a future use, to keep property out of the market, because the person who imposed the condition, or his heir, to whom the condition descends, can alone release it, and only to his grantee. There is no person always m esse beyond the perpetuity period who can launch the es- tate on the market, if the condition goes beyond the line of perpetuities. But, as a reversion is assignable, so is its accessory, or the right to the condition. Therefore, since the statute Quia EmptoreSySemMe^ no condition can be reserved on a grant in fee. The authorities,. however, differ respecting the valid- ity of a condition against alienation annexed to an estate in fee. In Eockford v. Hackman,^ the condition was held void. Kent considers^ that the condition is good. Leases for years often contain such conditions, and there seems to be no valid reason, therefore, why leases for life should not be subjected to a similar restriction.' But, of course, a pondition not to assign, imposed on a tenant in fee is altogether repugnant to the estate, and also void as a perpetuity. A condition against aliena- tion even within the line of perpetuity seems void if iattached to a fee. Such conditions, when imposed on lessees, are assignable, because the reversions in which they inhere are assignable. But where there is no rever- sion, land is made inalienable in the case put. The con- dition, therefore, is, in point of principle, void. The case is different from a settlement of property in Avhich ' 10 Eng. L. & Eq. 64. = 4 Comm. 131. 276 CONDITIONS. the tenant for life can alien his own interest ; but here is property sought to be rendered wholly inalienable for a certain period. Such a restriction is inconsistent with the incidents of property/ even though it do not violate the rule against perpetuities. It is equivalent to an inalienable use or trust for a man, which is void both at law and in equity. Suspending the vesting of an interest is an entirely diflferent thing. The particular tenants, in the latter case, may meantime dispose of their own interests, and even the contingent remainder-man, or cestuy que use, has a right which is assignable in equity (unless his interest is a bare possibility), even though he cannot give such a title to the fee or absolute property which a court of equity would force upon an unwilling purchas- er. The case of Pierce v. Win,^ therefore, is inconsistent with principle, and does not seem to derive much sup- port from the later authorities. In Jackson v. Schutz, however, it was held that a condition against alienation, without the consent of the grantor and offering him pre-emption, was valid in «a grant of a fee.* In Simonds v. Simonds,^ too, it was considered that a devise to one son in fee, on condition of his not aliening during the life of the other was valid. In Timothy v. Camp,^ a condition against alienation before the devisee was thirty-five years old, vyas held to be void. The same restriction in Stewart v. Brady,* was held to be ' Gleason i). Fayerweather, 4 G-ray, 348, 351 ; Blackstone Bank ®. Da- vis, 21 Pick. 43 ; Mc Williams ®. Nisly, 2 Serg. & R. 507. ' 1 Vent. 321. ' 7 Johns. 227; 18 Johns. 174; see Mc Williams ». Nisly, 2 Serg. & R. 5»7. « 3 Met. 563. ^ 1 Phil. Eq. 61. " 3 Bush. 638. CONDITIONS IN EESTEAINT OF ALIENATION. 277 valid. The former decision is alone in accordance with principle.^ A devise to testator's children only in case they con. tinned inhabitants of a certain place, was held, in New- kirk V. Newkirk,^ to be void. Such a general restraint against a change of domicile, is doubtless unreasonable and, void. It is to some extent equivalent to a con- dition against alienation, for if the devisees are required to live on a certain estate, they are not likely to sell it. Yet, such a qualification in the early reports seems to have been -deemed good. In Gray v. Blanchard,^ a condition that no window should be made in a certain wall was held valid', but a condition that "the house should have no window, it was said by the court, would be void. The condition in this case seems to be repugnant to the nature of the grant, and, therefore, to be void.' Jarman thinks,* that a condition imposed upon a devisee in fee, not to assign except to a particular per-' son is valid. But such a condition is evidently void on principle, as it must operate in general restraint of trade in land, and be a kind of perpetuity. A condition against marrying any one but A. B. is doubtless void. In the case of Pierce v. Win,^ the condition was confined to a life in being, which the analogy of separate estate tended to support. To take the converse case, Kent ^ thinks that a con- dition not to assign to a particular person is. unsound in principle. But the legality of a partial condition in restraint of trade, as of marriage, seems to be rather a consequence of freedom than an impediment to it, for a partial condition implies a consideration, or motive of some ' 3 Bush. 333. ' 2 Caines, 845. ' 8 Pick. 384. - Vol. I. 814. ' 1 Vent. 331. » 4 Com. 181. 278 coNDiTioiirs. reasonable kind. Therefore, if A. devises to B. on con- dition that he is not to sell to C, it is likely. A. has some reasonable cause for disliking C But A. would be an enemy of the human race if he forbade alienation to every one. The authority of Kent,^ as of Jarman, however, is very likely to weigh with our courts quite as much as if it was a judicial decision. I, therefore, take the liberty of impugning boldly any of their positions that seem unsound. Were I even to prove my views conclusively, I could hardly detract from the general merits of these authors, particularly from the philosoph- ical value of the commentaries. A personal inalienable trust for men or unmarried females, is void by the law of England and the United States. But a life interest may be made to cease on alienation either voluntarily or by act of law*. Conditions are not favored at law; and still less in equity, because they operate as forfeitures. Yet, they tend to consolidate tenures and titles — an object which the common law endeavored to effect by various means, such as the presumption of a joint tenancy, with the right of accruer, and the rule in Shelley's case. Con- ditions, however, were of a divesting nature, and the law leans to the vesting of interests, and to their con- tinuance when vested. Conditions, too, are not as flex- ible as uses, and, accordingly, those old levers of the common law are now in most cases construed in wills, as operating by way of contingent use. § 4. Other void conditions. A condition against aliening the subject-matter of any absolute bequest or devise not a separate use, as a ' 4 Com. 131. " See Stevens v. James, 4 Sim. 499 ; see infra c. 26, § 4. OTHER VOID COIIDITIOJfS. 279 general rule, is void, and so is any interest limited on breach of sucli void condition.^ A condition against charging with debts any interest absolute or limited is also void. So is a condition that the property is not to be liable to be sequestered iujcase of bankruptcy.^ Yet a disposition to A. until he becomes bankrupt, and then over, is valid.^ But neither a life estate nor an absolute one can be given without . power of alienation, unless the gift is wordted in the manner already described. It has, indeed, been repeatedly held in the American •States that general restraints on alienation are illegal if they extend beyond the line of perpetuity.* Yet it seems th|t a trust for a person and his family may be made independent of the creditors of the head of the family. It has been decided in Bramhall v. Fer- ris ^ that a similar provision might be deemed equally valid, even if there was no trustee. For, the inter- vention of such in a will seems never to be indispen- sible to the carrying out of the intention of the testator. Equity never wants a trustee. In Bramhall v. Ferris,* a testator directed his execu- tor to pay the proceeds of his property to his son for life, in order to support his family. It was held that the son's creditors could only attach any surplus that existed beyond what was necessary for the support of the son and his family. This decision was made under the New York statutes. It is wholly at variance^i^ith the English rules as regards any interest giveii to the ' Ross «. Ross, 1 Jac. & W. 154. ' Bramhall «. Ferris, 4 Kern. N. T. 44, 45. ' Brandon ». Robinson, 18 Ves. 439. * Newkirk «. Newkirk, 3 Caines, 345 ; Hawley ■». Northampton, 8 Mass. Z, 6. ' 14 N. Y. 41 ; see Clute «. Pool, 8 Paige, 83. » 4 Kern. N. T. 41. 280 COKBITIONS. son, as distinguislied from the shares of his family. For^ no trust for the separate use of a man free from the claims of his creditors can "be established in English law.^ But if the trustees have a discretion either ta ap- ply the property to the use of the beneficiary in ques- tion or to some other purpose, they may thus prevent the creditors -from seizing it. This is equivalent to a gift to A. until bankruptcy, or to A. for life, and then,, oh his bankruptcy, to B.^ If there is a provision in the will prohibiting alienation, insolvency is a breach of that condition, as such an assignment is voluntary; but bankruptcy generally is an assignment in invitum, and will not be a breach of a condition against assignment,^ un- less the condition is so worded as to include assign- ments by operation of law, or unless a person can by his own act become a bankrupt under the local law. A condition against assigning a life interest thus appears to be valid in some of the States, though a condition against incumbering it with debts is void, as creditors ciftim by the^os^, and not by the per ; in other words, they claim by law, and not through the grantor. 8enible, though a gift be so worded as to be deemed either a loan or a gift, yet the creditors of th-e beneficiary can attach it.* § 5. Conditions in restraint of marriage: Though all conditions in restraint of marriage were void by the civil law, yet our courts recognise the val- idity of such restrictions if they are not general.^ But, though these conditions are not illegal, they may still ' See 1 Jarm. 830, et seq. = See Dommett «. Bedford, 3 Ves. 149. ' See 1 Jarm. 828. ' Williams v. Jones, 3 Swans. 630. ' Bullock v. Bennett, 31 Eng. L. & Eq..463. CONBITIONS IK KESTEAINT OF MAEEIAGE. 281 4 be void, or, at least, ineffectual, unless there is a gift over on breach. If there is not such an ulterior dispo- sition of the property in question, the condition is termed in terrorem, or a mere threat.^ As a condition precedent, however, must be fulfilled, it is not construed in terrorem, even though there be no -gift over, though even this point is stillj perhaps, suh judice. These dis- tinctions relate only to bequests of personalty. All conditions relating to devises of land are construed ac- cording to the common law, no matter whether the re- striction relates to marriage or not. By the civU law all conditions, whether precedent or subsequent, in restraint of marriage, were void.^ But, in English law, a condition for consent to mar- riage is valid; so is a condition against marrying a particular person, or under a, certain age. And a con- dition that a widow shall not marry again, has been held valid.* Yet, this condition, being in general re- straint of marriage, seems contrary to public policy, and would doubtless be held to be merely in terrorem^ both in the United States and in England, at the present day.* Semble, a condition of consent to mar- riage, though legal, is inoperative, unless there is a limitation over on breach of the .conditions;^ and a residuary gift is not a limitation over within the mean- ing of this rule. Conditions in restraint of marriage are thus con- strued in the American States, and if the gift is per- sonalty, they will be held to be m terrorem, unless coupled with a limitation over in case of a breach.® > 1 Story Eq. Jur. § 287. ' Parsons v. Winslow, 6 Mass. 169. " Amb. 209. * See Binnerman v. Weaver, 8 Md. 517. * See Parsons ■». Winslow, V* 8up. " McHvain v. Githin, 3 Whart. 375 ; 3 Lead. Cas. in Eq. 390, 3rd Am. ed. 282 CONDITIONS. % In the American States, however, a condition against the re-marriage of a widow is deemed legal} This de- cision is supported by some old authorities; but, in. point of principle, it is clearly a prohibition in general restraint of marriage, which is void in respect of all persons not widows. There is surely no reason why these should be thus restricted more than others. Conditions precedent to ^larry with consent, will not ,be deemed in terrorem, even When there is no limitation over on breach, if the legatee takes a gift in the alternative of marrying without consent, or the marriage without consent is only one of two events on either of which the legatee will be entitled to the legacy, or if marriage with consent is confined to minority. Jarman's statement of the law on this point is to this effect ^ But, in reality, these are cases where there is a limitation on breach, but the same person is the alternative donee, or else the condition enters into the limitation so that it comes under the principle of the in terrorem doctrine as applied to conditions sub- sequent, and which regards a limitation over coupled with the condition as jointly constituting the terms of the gift over. At all events, a legacy given on marriage mth consent, without any gift over, will not vest until marriage. A legacy to a female, if she shall not cohabit with her husband, seems to be void on grounds- of public policy. All conditions in restraint of marriage attached to legacies, however, though void by the civil law,^ are good as to land by the common law.* Our ' 2Redfleld, 295; Hughes b. Boyd, 3 Sneed. 512; Holmes v. Field, 12 m. 434. ' Vol. I. 839. " Hoopes «. Dundas, 10 Ban-, 75. ■* Commonwealth v. Staufifer, 10 Barr, 350. CONDITIONS IN RESTBAINT OP MARBIA.aE. 283 present law is thus somewliat heterogeneous, but is, on the whole, sensible. A condition against celibacy is valid. Thus, in Cooper V. Remsen,^ a gift to A. to cease when she became a nun, was held to be legal. All conditions, however, abridging religious liberty, in the Anierican States, where there is no common law or established church,' would seem' to be, in the main, against constitu- tional *law and the principles of public policy. In ShacMeford v. Hall,^ a condition subsequent in general restraint of marriage, was held to be valid and to divest the estate. Devises in 'restraint of marriage, without any gift over, are valid in Pennsylvania.* A devise on condition not to marry except according to Quaker rules was held valid in HoughtoU v. Hough- ton,* but invalid in Maddox v. Maddox.® It seems clear that, on principle, such restrictions are invalid. A re- straint against marriage, when extended to whole classes, is evidently unlawful ; but, confined to a class, it does not perhaps abridge freedom of choice too much. There- fore, a condition against marrying a Scotchman was held to be valid in Peirren v. Lyon.® But a condition to marry none but a Scotchman would seem to be too general, and, as such, void. If a bequest is made to a legatee at twenty-one, or on marriage with consent, with a clause of forfeiture upon marriage without consent, if the legatee attains twenty-one, the condition is gone.'' If a trustee with- holds his consent without cause, the court will authorize a marriage without consent. Jarman thinks® the court > 5 Johns. Ch. 459. ' 19 111. 212. ' 2 Redfield,, 304. ■• 1 Moll. 611. * 11 Grat. Va. 804. » 9 East. 17p. ' See Chauncey v. Grraydon, 2 Atk. 616 ; Durney v. Schaeffler, 34 Mo. (3 Jones) 170; Hughes «. Boyd, 3 Sneed, Tenn. 512. ■ « Vol. I. 844. 284 CONDITIONS. will not do tliis, if the consent was to be in writing. But, as a writing is merely the evidence of the consent, and there is a sufficient equity for the court to act dehors the document, its requirement would seem not to be material where there was bad faith on the part ' of the trustee. A condition in partial restraint of marriage, unless there is a gift over, will not be held void in respect to legacies charged on land, so far as the realty must be resorted to, since the in terrorem doctrine is, taken from the civil law, and is applicable to personal legacies only. These were formerly administel-ed in the ecclesiastical courts, which adopted the rules of the civil, and not of the common law. But the latter law applies to devises and charges on land. A condition that a legatee shall not dispute the will is also in terrorem^ unless there is a gift over. But this doctrine- is not applied to devises of land. Where there was a devise on marrying with consent and a gift over on marrying against consent, the word " against "-was read " without."^ A consent to marriage must be before or at the time of its celebration. If one of the trustees is dead, the consent of the survivors will suffice, while, if the con- dition is subsequent, it is wholly gone. The consent may be express or implied, and one marriage with con- sent of testator, or of the trustee, destroys the condition forever afterwards.^ This is a general rule of conditions, except so far as the law is altered by statute or judicial construction. If a condition, even at the present day in some of the States, is released once, it is gone for ever. A general consent is sufficient. But a consent to a marriage with A. is no consent to a marriage with B. ■ Long V. Bicketts, 2 Sim. & Stu. 179. ' 3 Williams, Ex. 2d Am. e'd. p. 914, et seg. EQUITABLE RELIEF. 285 « A consent once given cannot be retracted. The consent of all the trustees who have acted, or of the survivors, is sufficient. A condition that the beneficiary shall change his name is fulfilled by his doing so, without compliance with any ceremony that may be required by law for that purpose. § 6. Equitable relief. The question of the inter-dependence of covenants in the same instrument is mainly determined by the order of time jof their performance.^ If an estate be limited to A. on his marriage with B., this is a condition prece- dent.^ It is strictly enforced, and equity will hardly relieve against its non-fulfilment. The case of the City Bank V. Smith^ is, as the note in Kent alleges,* an authority for holding that equity will relieve in the case of a con- dition precedent. But the circumstances under which the court will thus exercise its remedial jurisdiction are very rare.* The court, however, will either relieve against a breach of a condition precedent, or interfere to defeat a vested interest, when the condition is intended to secure a siim of money or the performance of any other act, and the loss can be readily made the subject of compensation.^ Conditions are apportionable in most of the United States as in England, so far as that a waiver of forfeiture operates only for that occasion, and does not destroy the condition.* Yet, at common law no condition was apportionable. • ' 4 Kent Com. 135, note. = lb. =3 Gill & J. 365. ' 4 Kent Com. 135 ; Story, §§ 1330-36 ; Gregory v. Wilson, 9 Hare, 689 ; Thompson v. Hudson, L. R; 3, Eq. Cas. 613 ; 3 Oh. App. 355. ' Flandears «. Lamphear, 9 N. H. 301. ' See 31 Vict. c. 37. Supra, 368. CHAPTER XXII. TRUSTS FOR SEPARATE USE. A trust for tlie separate use of married women^ in respect to whicli they can act precisely as if they were unmarried, may be created in the American States. But the intention must be very explicit.* A tmst for her " sole use and benefit," however, is sufficient for this purpose.^ So is a trust of " property to remain in her possession," "for her special use and benefit,"^ " for her own use and benefit absolutely," * " for her own use and at her own disposal," "for her livelihood," "her receipt to be a sufficient discharge,""independeiltly of any other person," ^ or, " whether married or single." ® But, a gift for separate use is not raised by the use merely of the words " absolutely," " for her own absolute use," or " for her own use and benefit," " to her and the heirs of her body, and them alone," ^ " entirely for her and her children," or, " for her own use , and benefit." * Neither do the words " own," " proper," or " abso- lute " use, raise a trust for a separate use.^ For phrases that will create a trust for the separate use of a married woman, see the authorities referred to ' Stevenson «. Schriver, 9 Gill & J. 334. " Jarvis®. Prentice, 19 Conn. 373; see Jones v. Jones, 7 Ga. 76. = Freeman v. Flood, 16 Ga. 538. * Tarsey's Trust L. R. 1 Eq. 561. ' Lee «. Priaulx, 3 Bro. C. 0. 381. °< See Shewell v. Dwarris, Johns. Eng. 173. ' Foster ®. Kerr, 4 Rich. Eq. 390. » Foley V. Foley, Irish Ch. App. 18 W, R. 8J. » Rycroft ii. Christy, 3 Beav. 338. TRUSTS FOK SEPARATE USE. 287 in the note.^ Semble, any expressions of desire that her husband or his creditors shall not attach the wife's estate will render it separate. The appointment of a trustee for this or any other trust by the testator is unnecessary. For, it is a maxim of equity that it never wants a trustee, and when a trust for a married woman is raised, it will regard the husband as' the trustee, if none other is appointed.^ A trust for the separate, inalienable use of a woman on future marriage is valid.^ But, a trust for the ,use of a man for life, without anticipatioo, is void. He may assign his life interest, or it will pass to his as- signees in bankruptcy.* The American law, however, on this point, is not as rigid as the English.^ A gift to husband and wife and a third person, gives the husband and wife only a moiety, and not two- thirds, as husband and wife are only one person in law. This rule applies to land as well as personalty, and whether the limitation be to the donees as joint 'tenants, or as tenants in common. But, if the gift be to A. (hus- band) and B. (wife), the limitation, thusworded, will give them a share each, though the wife will not take to her separate use in the equitable sense of that phrase. ' Clancy's Rights of Women, Am. ed. p. 263, et seq. ; Hamilton v. Bishop,, 8 Terg. 33 ; Hulme v. Tenant, 1 Br. C. 0. 16 ; s. c. 1 Wiite & Tud. Lead. Cas. and notes thereto, 3d ed. 394, el seq. " 2 Story Eq. Jur. § 1393 ; Bradish v. GHbbs, 3 Johns. Ch. 540. = 1 Bear. 34. •* 2 Stdry Eq. Jm-. § 1383. ° See swpra^ chapter XX f, § 3. CHAPTER XXIII. GIFTS TO CERTAIN PERSONS AND CLASSES. § 1. Gifts to a class. A legacy to a class is often confined by the context to the individuals known to the testator. But if a class is really iatended by him, the text writers say that all will participate who answer the description of the class when the gift takes effect in possession — that is, at the period of distribution. This statement, however, proves nothing. The question, is, when does the period of dis- tribution occur. Indeed, gifts to classes are not aU con- strued in the same manner with respect to the period of distribution. Sanders, in his note to Heathe v. Heathe, says that, in the case of a gift to children, where the gift is not confined to time, the death of the testator is the period when the members of the class are to be reckoned, but where the distribution is postponed on account of a preceding gift for life or otherwise, then all who are born before the period of distribution take, but not those born afterwards.^ If, however, the par- ticular tenant dies in the lifetime of the testator, all who are born into the class afterwards, but in the life- time of the testator, will take.^ It is thus plain that in England and in most of the States an immediate gift to " children," " grandchildren," " issue," " brothers," " sis- ters," " cousins," refers to those in existence at the testa- tor's death, if there be any such at that period.^ Those who do not survive the testator take nothing* in Eng- ' 3 Atk. 131. " Carver v. Oakley, 4 Jones Eq. 85. = Viner v. Francis, 3 Cox, 190. * Devisme «. Mello, 1 Bro. C. C. 537. GIFTS TO A CLASS. 289 land and most of tlie States. But if the gift is not im- mediate, all will take who correspond with the descrip- tion at or before the period of distribution, or represent those who so correspond. The membef s of the class take vested interests at the testator's death, sub Tuodo, or subject to be partially divested by the appearance of a new member of the class, but not lost by their own decease before the period of distribution. It is then transmitted to their representative.- The rules relating to this point, therefore, may be thus summarized; — Gifts to children apply only to those who correspond with the description at the period of distribution. Therefore, immediate gifts extend only to those who can claim to be beneficiaries at the testa- tor's death. But, deferred gifts will be applied in favor of all, or their representatives, who correspond with the description any time after the testator's death and be- fore the period of distribution. Where the shares of children or other members of a class are made payable at twenty-one or mamage, the period of distribution occurs when the contingency first happens. None can take who do not answer the description until after- wards.*^ Immediate gifts to children mean those living at the testator's death.* Deferred gifts include all, or their representatives, bom before the period of distribution.* If there is no preceding limitation, but the testator's in- terest in the subject-matter of the bequest is itself reversionary, the rule in Oppenheim v. Henry ^ still applies, and all who come within the definition of the ' Oppenheim v. Henry, 10 Hare, 441. ° Andrews v. Partington, 3 Bro. C. 0. 403 ; see Gillman v. Daunt, 3 K. & J. 48. ^ Jenkins v. Freyer, 4 Paige, 47 ; Van Hook v. Rogers, 3 Murph. 178. " Haskins v. Tate, 25 Penn. St. 249 ; Carroll v. Hancock, 3 Jones' Law, (N. 0.) 471. ' 10 Hare, 441. 290 GIFTS TO CERTAIN PBESONS AND CLASSES. class down to the period of distribution will take. This latter rule, does not apply to a limitation of residue to a class, if only part of the residue be previously given by the will to others for life. The residuary legatees must correspond with the description in the will at the time of testator's death. Grifts subject to a term are also considered as immediate.^ Perkins, J.,^ and Redfield, J.,^ lay down the position that, where a legacy is given to a class of individuals, . it will take in all who answer the description at the time the gift shall take effect. If by taking effect is meant the period of distribution, this is true only as applied to children, and not to next of kin. If the phrase means the death of the testator, it is not accurate as regards gifts to children, the period of distributing which is deferred. In other words, no general rule can be applied to gifts to classes ; since gifts to children, brothers, sisters, nephews, nieces, &c., with respect to the point in question, are construed differently from gifts to- other classes of persons.* The rule which gives vested interests only to those persons who come within the definition of a class of beneficiaries at the testator's death applies, though the phrase " all and every " be used. The members still take as a class, and not individually. Of course, if the context means otherwise, the express will of the testator must prevail. Therefore, a gift to " all the children of A. and B. who shall be born during the lifetime of A. and B," comprises all born within the period specified.® When children are substituted for their parents dy- ing before the period of distribution, the children must also survive the period of distribution, else their shares go to those who survive that period. This rule is pe- ' Singleton ». GUbert, 1 Cox, 68. = 2 Jarm. 73. = Vol. II, 10. ■■ 2 Jarm. 78. ° Scott v. Lord Scarborough, 1 Beav. 154. GIFTS TO A CLASS. 291 culiar to gifts to cHldren. It imports into the substi- tuted gift a condition whicli is expressly imposed by the testator only on the primary gift. The rule does not apply to other substitutionary legacies. Accruing shares to such are not by necessary implication subject to clauses of accruer imposed by the testator only on the primary shares. A gift to such issue as a person may leave, points to the time of his death, and those who die before him take nothing.^ A gift over in case of a prior devisee or legatee dying without children means without leaving children at his death. But " without having children " means without having had a child. The first legatee's interest, in the latter case, becomes indefeasible on the birth of a child.^ The phrase " in case A. and B., hus- band and wife, have no children," means " in case no child survives both parents."^ The rule which postpones the reckoning of the mem- bers of a class of beneficiaries until the period of distribu- tion applies only where the whole charge on the testator's estate is not thus increased. Therefore a gift of $5,000 to all the children of A., payable to them when they attain twenty-one, will let in all children born after the testa- tor's death M'^ho are born before' the eldest child attains twenty-one. But, a gift of $100 to each of A.'s children who shall attain twenty-one, will extend only to those answering the description at the testator's death. Else the administration of the testator's personalty should be indefinitely deferred.* For this reason, also, though the payment of legacies is postponed for a year from the date of testator's death, this does not enlarge the class of beneficiaries.® ' 3 Jarm. 114. "3 Jarm. 113. " Doe d. Nasmyth «. Knowles, 1 Barn. & Adol. 334. " Eingrose v. Bralnham, 3 Cox, 384. " Hagger «. Payne, 33 B, 479. 292 GIFTS TO qEBTAIN PEESONS ASTD CLASSES. When the first share becomes payable the whole fand must then be distributed, even though there be words of ulterior futurity in the limitation as to " the children of A. born or to be born, as many as there may be." But, the rule which requires the distribution to be made when the flfst share becomes payable is founded on mere principles of convenience. It is a rule of construction, and not of law, and may be neutralized by a plain clause or context to the contrary,^ or where the shares are not made payable until the youngest attains twenty-one,^ or where the interest is to be applied until they attain twenty-one.^ If there be a gift to A. for life, remainder to the children of B. who attain twenty-one, or to be payable to them at twenty-one, the period of distribution is deferred to the latest of these events, and all who answer the description down to the occurrence of the last con- tingency will take.* A ^ffc to all " the present born children of A." will still apply only to those who survive the testator.® Even, a power to A. to appoint to the children of B. can be exercised only in favor of the children in existence at testator's death.® The rule that a class is to be defined at the period of the testator's death does not apply when there are no persons then answering the description. In such an event, all who correspond with the description any time afterwards (within the bounds of perpetuity), are admitted,'^ and the interest that accrues until the first ' Iredell v. Iredell, 25 B. 485. '^ Mainwaring v. Beevor, 8 Hare, 44. ' Armitage v. Williams, 37 B. 346. ■* Hawkins on Wills, 77. " Leigh V. Leigh, 17 B. 605 ; see Lee v. Pain, 4 Hare, 250, ° Paul V. Compton, 8 Ves. 375. ' Harrison «. Lloyd, T; & R. 310. GIFTS TO A CLASS. 293 taker appears falls into the residue. If tlie gift is a legal contingent remainder, it will, of course, also fail. But tlie rule applies only to immediate gifts. Where there is a gift, not to a class, but to individuals, and one of these dies before the testator, his share lapses. It is not yet completely settled in England^ whether a gift to children " born " or " to be born " will let in children born after the testator's death, or whether the testator merely contemplated the case of the birth of children between the making of his will and the time of his death.^ In some cases such children have been admitted.* It was held in Kevern v. Williams,* that under a bequest to A. for life, remainder to the grandchildren of B., payable at their ages of twenty, none could take but those born in A.'s lifetime. The limitation, indeed, would, under any other construction, be void for re- moteness. A bequest of chattels to A., and, if he die without children, over, gives A. the absolute property, subject to an executory interest on the contingency specified.^ But, if the gift is to A. for life expressly, the limitation will resemble a devise of land to A. for life, and if he die without issue living at his death, remainder to B, In this case, if A. have issue, there is an intestacy of the subject of bequest after A.'s death. The courts, how- ever, will be astute in discovering, in the context some means for implying interests in the children by pur- chase. • The natural mode of interpreting the word issue would seem to be to construe it as a word of purchase, and also as conveying a fee tail. But, it was held at an ' Hawkins, 71. ' Defflis V. Goldschmidt, 1 Mer. 417; Mogg v. Mogg, 1 Mer. 654. ' Hawkins, 71. . "5 Sim. 173. * Weakley d. Knight «. Eugg, 7 Dum. & East. 333. 294 GIFTS TO CEKTAIU PEKSONS AND CLASSES. early date to be a word of limitation in wills, and front tMs construction all the complications resulting from the nse of the phrase have been derived.^ Deferred gifts become all payable on the first vesting iu possession of any one share. Therefore, gifts to the children of A. on marriage, become distributable when any of A.'s children marries. But, if the gift is to them at twenty-one, only children born before the period of the testator's death can take, otherwise the whole per- sonalty of the testator should remain unadministered. This exception to the general rule as to deferred gifts does not apply when, as already stated, the total amount to be given to the whole class is fixed by the testator. To A. for life, remainder to the children of B., there being no children of B. born during A.'s life, children of B. born after A.'s death will take, if the limitation is one of personalty, or an equitable trust of realty. But, if it is a legal contingent remainder, it fa;ils,^ unless there is a limitation to trustees to preserve, &c., during the life of B. Therefore, under a gift to children after a life estate, all children living at testator's death, and all born during, but not after, the pendency of the life estate, will participate; but none of those born after the determina- tion of that estate will take, unless there were no chil-' dren then in esse. In this event, all born -afterwards will take, unless the limitation is a legal contingent remainder, unsupported by an estate in trustees. The distribution of the fund will not be delayed, nor the class enlarged, because there is a gift over on failure of the whole class.^ Although, if there is, at the time of the testator's death, no person answering the description of the class of ' Bx parte Rogers, 3 Madd. 449. ' 2 Janii. 93. ' Andrews v. Partington, 3 B. 0. 0. 401. aiFTS TO A CLASS. 295 cMldren referred to in tte will, all the children born sub- sequently to the death of the testator will take, yet, the rents, meantime, of the reality will fall to the heir at law, unless there is a general residuary devise. When any child is born, he takes the whole income until another is born, and so on.^ A gift to children " now living " extends only to those living at the date of the will. But, the word " be- gotten " has a prospective as well as retrospective Yorce.* The words " to be bom " will let in all future children, unless the case be one of a general pecuniary legacy. The same words do not exclude children already born.* Jarman seems justly to disapprove of this rule.* For the express including of one class of children implies the exclusion of others. Mcpressio unius, &c. In some American cases,^ under a gift to a class, it has been held that none can take but those who were living at the date of the will, while even of these, the shares of any who predecease the testator, will accrue to the others. Judge Redfield^ considers that the rule in those States, where the question has been most care- fully considered, is to reckon the members of the class " when the gift takes effect." This phrase, he explains afterwards, to mean the period of distribution. There- fore a devise in remainder to a class, will operate only for those (or their representatives), who belong to the class on the death of the particular tenant.'' - _ . ' Shepherd v. Ingram, Amb. 448. , = 3 Jarm. 103. = Doe d. .lames v. Hajlett, 1 Mau. & S. 1'34. ' 3 Jarm. 101. ^ Stires v. Van Rensselaar, 3 Bradf. 173 ; Lawrence v. Hebbard, 1 Bradf. 253. " Vol. II, 10 ; Hawkins v. Everett, 5 Jones, Eq. 43 ; Walker v. William- son, 35 Ga. 549. . , ' Kilpatrick v. Johnson, 15 N. Y. 333 ; Myers «. Myers, 3 McCord Oh. 314, 256. 296 GIFTS TO CERTAIN PERSONS AND CLASSES. In Campbell v. Rawdon/ it 'was held that a devise in remainder to a class, takes effect at the decease of the testator. Knight v. Knight/ however, decides that the class is not to be computed until the death of the par- ticular tenant, if there is one. The members of the class take as tenants in common.® Where any of a class of legatees are in esse, sur- vivorship will generally be construed in America, Avith reference to the time of the testator's death. A legacy to children, too, then becomes vested in interest in the children then living, but subject to open and admit after born children to a participation.* Under a devise to A.'s " children, their heirs and assigns," the children of such as die before the testator, cannot take, but . the children surviving him take the whole, as a class.^ A devise to the " surviving children of my late sister A., not knowing their names, they living in the State of Maine, to be divided equally among them 5,11," was held to apply to all living at the date of the will. Any dying before the testator, nevertheless, transmit their interests to- their representatives under the Massachu- setts statute.^ A legacy to grandchildren on their attaining age, or marrying with consent, does not apply to a grand- child already of age and married. '^ However, in Collin V. Collin,* where a fund was given to a class, on their attaining age, those who had attained age at the tes- ' 18 N. Y. 413. = 3 Jones Eq. 167. ' Phenes Trusts, Law Eep. 5 Eq. 346. ' Mowatt «. Carow, 7 Paige, 338. '' Stires v. Van Rensselaer, 3 Bradf. 173 ; Doubleday «. Newton, 37 Barb. 431 ; Tucker v. Bishop, 16 N. Y. ; (3 Smith), 403. ' Morse v. Mason. 11 Allen, 36. ' Hone V. Van Schaick, 3 N. Y. (3 Comst.) 538. . ' 1 Barb. Ch. 630. • HEIRS. 297 tator's death, were held entitled to an immediate par- ticipation. The residue was left to be accumulated until the whole was distributed. This 'decision is what will be found applicable to the great majority of gifts to a class thus imperfectly described. As to the period when " children " take vested in- terests, see further Conley v. Kincaid.-' A posthumous child takes as if born in testator's life time.^ ' § 2. Heirs. The meaning of the term " heirs " or " represent- atives," will, in all cases of doubt, be determined by reference to the statutary definitions of , these terms.^ The word " heir," therefore, means the legal heir at the death of the testator. If the law has made a change in heirship, between the date of the will and that of the testator's death, the testator will be presumed to have contemplated the possibility of such change,* and to have used his words accordingly. Parol evidence is not admissable to vary the mean- ing of the term heir.® Although the word " heirs " denotes the persons answering that description at the testator's decease, yet if there are intermediate estates, and if the limitation, to the heirs is a contingent remainder, the reference will be to persons answering the designation, when the estate vests in possession.^ In Ha wn f. Banks,^ the clause "and to her heirs," ■ ' 34 Ala. 203. ^ 3 Head. 191 ; 1 Wins. Eq. 44 ; Smith v. Asliurst, 34 Ala. 208 ; Car- michael 1). Carmichael, 2 Head. 191 ; Beasley v. Jenkins, 18 W. E, 139; Hall V. Wooller, 41 N. Y. 346 ; Stoner v. Bemdt, 10 Penn. St. 318; Osgood • V. Livering, 33 Me. 464 ; Dickinson v. Lee, 4 Watts, 83 ; Van Grieson v. Howard, 3 Halst. Ch. 463. " Lyon V. Acker, 33 Conn. 333 ; Abbott v. Browning, 3 Allen, 587. ' Aspden's Estate, 3 WaU. Jr. C. Ct. 368. ' lb. ' Abbott -0. Bradstreet, 3 Allen, 587. ' 4 Edw. 664. 298 GIFTS TO CEBTAIK PEESOKS AND CI/ASSES. was held, fo be used in a substitutional sense. This is a very frequent meaning of the word heirs in a will. Probably in those States where a general devise passes a fee, the word "heirs" would be tbe more .readily regarded as substitutional, in accordance with the general principle of interpretation that requires every word in a will to get, if possible, a specific meaning and not to be deemed mere emphatic surplusage. The term " heirs" means only heirs de jwe, and not devisees.^ Conversely, an heir will not take by devise when he may take by descent. For, when a person can claim by act of law as well as by matter in pais, he is remitted to his legal title. The courts presume a legal title to be better than a contractual or testamentary one.^ This presumption, too, is a conclusive one, A title at common law is also deemed superior to one by statute, and it extinguishes an equitable title when both concur in the same person. In Drake v. Pell,* legacies were given to children, or if any one should die after the testator, and after attaining age, and before the youngest attained age, then to his heirs, devisees, or legal representatives. It was held that as the property was personal, the term "heirs " and "legal representatives" were synony- mous with next of kin, and did not include the execu- tors or administrators ; that the word " devisees " gave a power of appointment, and that these were words of purchase. But, although the word "heirs" may thus be a term of purchase,* y^, under a bequest to legatees, or to " their heirs," one of the legatees being dead at the date of the will, it was held that there was no lapse. The property, however, being personal, went ? Porter's Appeal, 45 Penn. St. 201 ; see Stoyer v. Berndt, 10 Penn. St. 313; Bond's Appeal, 31 Conn. 188. " Bamitz v. Casey, 7 Cranch. 436. '' 3 Edw. 351. * Murphy v. Harvey, 4 Edw. 131. HEIRS, 29& not to tlie legatee's lieirs, but to her next of kin, ex- cluding her husband.^ In a bequest to "J. and his children, to be equally divided between them and their heirs and assigns forever," the word " heirs " was held to be a term of limi]bation.^ A limitation to " heir^ " intended to take during the life of their ancestor, would, in England, be generally confined to mean heir in the singular number.® But, in America, under such a de- vise, the next of kin would take.* In Chambers v. Taylor,^ it was held that a devise to the heir female created only an estate for life. However, under a devise to one's heir, the legal heir usually takes a fee. But, where a division is directed to be made amongst heirs, these mean next of kin.* A grant by deed to A. and his heirs male will not apply to a daugh ter, but will to a brother,'' though neither satisfies . both the conditions of the gift, and, if the grant were to the heir general, neither would take. In a will, however, the clause heir male confers an estate in tail male.^ An heir male or female by descent must trace title all through heirs of the kind designated. But, semble, an heir male or female by purchase is not so strictly bound f and, therefore, the son of a deceased female may take by purchase under the description of heir male. So, also, under a devise by a testator to the heir male of his body, on his death leaving grandchildren only, the issue of his daughters, the eldest sons of each daughter will take.^° ' Wright v. Method. Epis. Ch. Hoflfm. 303. ^ Armstrong v. Moran, 1 Bradf. 314. ' Janes v. Richardson, 7 T. Jon. 99 ; noni. Burchett ». Durdaunt, Raym. 330. * Simmons v. Garrotj 1 Dev. & Bat. Eq. 393. ' 3 My. & C. 376 ; see Winter «. Peeratt, 9 CI. & Fin. 606. ° Baskin Appeal, 3 Barr. Penn. 304. ' Wills «. Palmer, 5 Burr. 3617. «Doe d. Lindsey v. Calyear, 11 East,.548. ° Hobart, 31. "3 Jarm. 11. 300 GIFTS TO CEKTAIN PEESOXS AND CLASSES. Sir Edward Coke/ indeed, considered that an heir male, taking by purchase, must be the heir general and also a male, but need not make out descent through males; in other words, Sir Edward thought that the clause in question did not denote an estate in tail male. This doctrine, however, has been expressly overruled as regards limitations to heirs male of the lody, taking by purchase, that is, where the ancestor takes no estate. The clause now confers an estate tail to which title can be only traced through males. Lord Coke's position would still probably be followed in the case of a limit- ation to " heir male" ^ in a deed. But in a will this clause also confers an estate in tail male,^ According to Coke, then, the heir male of the body taking by purchase should be heir general, but need not trace title through males. By the present law " the heir male" under a will must trace title through males, though he need not be heir general, but only heir in tail male. A " male descendant," * too, or an " eldest male lineal descendant " * must claim title through males only. Under a devise to the right heirs of A., being of the name of B., no person can claim, except one who is both heir general of A. and also of the name of B.° In the case cited, Parke, J., considered that the doctrine of Lord Coke, that an heir male need not be heir general, was overruled only as to estates tail. The limitation in question, however, in a deed has no special force. It is only equivalent to a limitation to the heir. It is only -under a will, therefore, that the question can arise. The testator must mean a person to be his heir general and ' Co. Lit. 346. = Wills v. Palmer, 5 Burr. 2615. = Doe d. Angell ii. Angell, 9 Q. B. 338. * Bernal v. Bernal, 3 My. & Cr. 559. " Oddie v. Woodford, 7 H. L. C. 429. " Wrigttson v. Macauley, 14 M. & W. 314. HBIES. - 301 also a male, else the law will deem the heir male to be a tenant in tail male. A devise to A. for life, remainder to the heir male of his body, and to the heirs male of the body of such heir male, gives A. only an estate for life.^ In Chamberlayne v. Chamberlayne,^ the rule in Ar- cher's case was applied to a devise to A., to hold to Mm and the heir male of his body, and the heirs and assigns^ of such heir male, although in a deed the habendum alone properly contains the limitation of estate, and the word assigns is in all such cases inoperative, though it is of use in certain covenants. The rule in Archer's, case, indeed, is sound ; but, then, its application, as in Chamberlayne v. Chamberlayne is generally inconsistent with a host of authorities in which the rule in Shelley's case has been adopted. Under a devise to A. and his heirs, and to B., who is one of the heirs of A., B. takes as devisee and also as heir.* In New York, where the rule in Shelley's case has been abolished, under a devise to A. for life and after his death to his heirs, the heirs take a contingent remainder by purchase. In Heard v. Hortpn,* a distinction was taken between a devise to the heirs of- one who is stated in the will to be now living, and a d^ise to his heirs without any statement as to his being either alive or dead. The court inclined to hold the latter devise void, though the former would be held to apply to those who where the heirs specified at the date of the will. The distinction, however, appears rather nebulous, and to be fit only for the elementary stages of jurisprudence, when cy pres or liberal constructions are rare. ' Archer's Case, 1 Rep. 66. ■- 6 Ell. & Bl. 635. ' Stowe ». Ward, 1 Dev. 67 ; s. c. 3 Hawks, 604; see supra, c. VI. ' 1 Denio, 165. 303 GlI^S TO CERTAIN PEESONS AND CLASSES. A devise to A. and Ms heirs lawfully begotten,^ gives A. an estate tail. A devise to A. and his lawful heirs gives him a fee. A devise to A. and his heirs,' and, if he die without issue or heirs of his body, then over, gives A. only an estate tail.* Even in a deed, a limitation to one and his heirs in the premises may be reduced by an liahendum to him and the heirs of his body to an entail; A fortiori may a later clause in a will con- trol a prior one of the same genus. But, if the gift over be on a failure of issue, at a date within a life or lives in being, and twenty-one years after, A. takes a fee subject to an executory devise.^ If land be devised to B. alone, or with others, on fail- ure of A.'s heirs, and B. is capable of being heir to A.,* then A. takes by implication only an estate tail. . For, every word in a will must receive a meaning, unless the context or the primary intention of the testator pre- cludes such interpretation. So, a gift to A., after the death of B., of property which A. would take immedi- ately upon the testator's intestacy, gi ves to B. by impli- cation a life interest, unless otherwise disposed of by the will. This rule applies to both realty and personalty,® but is not likely to be extended beyond its present lim- its. Such abnormal limitations are probably owing wholly to some mistake on the part of the testator with respect to the inherent'claims of the implied devisee. If, indeed, this tenant for life be a relation or widow^ of the testator, it is plain that he or she should be deemed to take a life estate by implication. But, in other cases, the limitations in question are," it is proba- ' Co. Litt. 206, n. " Doe d. Ellis v. Ellis, 9 East, 382. ' Eastman «. Baker, 1 Tauut. 174. * Harris v. Davis, 1 Coll. 423 ; vide supra, c. 7, 14. " Stevens v. Hale, 2 De. & Sm. 22. "• See 1 Keen, 176. HEIBS. 303 ble, mere mistakes arising from some misconception of facts by the testator. The word " heirs," in connection with personalty, is often construed to mean children. In America it will generally mean all who take under the statute of dis^ tributions, and will include the widow.^ In Maine it means almost any person except the common law heir. Even though the subject-matter of the devise is gov- erned by a peculiar local law of descent, yet a devise to the heir still enures to the common law heir.^ If the subject-matter is personalty, and the gift is substitution- ary, as, "to A., and, if he die before me, to his heirs," his next of kin will take.® Probably this rule applies to all dispositions of personalty, whether they are sub- stitutionary or not. It does not, however, comprise mixed gifts of realty and personalty. The heir will be preferred in such cases, at least in England,* though probably not in America.® "Where the fund is mixed, the word " heirs " will be interpreted literally.® It was held by GrifFard, Y. C, however, in Herrick v. Franklin,'^ " that the term would be interpreted differently when applied to personalty, according to the precedent set in Forth v. Chapman."^ There is not, indeed, any very essential difference be- tween rules of limitation and the meaning of a term de- noting a class of beneficiaries. "Still, to give one clause two different meanings, as was done in Forth v. Chap- ' See Richardson v. Wheatland, 7 M et. 173. = 3 Jarm. 33. ^ Vaux ». Henderson, 1 Jac. & Walk. 388, n. * E-sans «. Salt, 6 Beav. Ch. 366. ^ See 4 Kent,. (5th ed.) 537, » ; Croom v. Keering, 4 Hawks, 393 ; Ricks D. Williams, 1 Badg. & Den. 391. " De BeauToir ». De Beauvoir, 15 Sim. 163 ; s. c. 3 Ho. of Lds. Gas. 534, 557. '^Law Rep. '6 Eq. 593. H P. Wms. 164. 304 GIFTS TO CERTAIN PEKSONS AND CLASSES. man, is perhaps bold wiere no rule of tenure is directly in question.^ Heirs at law in a bequest mean next of kin.^ But, if real and personal estate are both so limited after a life estate, the heir will take all, unless the will discloses an intention that, reddendo^ . Phyfe, 19 N. Y, 344. = Cromer ®. Pinckney, 3 Barb. Ch. 466. * HalloweU v. Phipps, 3 Whart. 376. ' In re Orton's Trust, Law Eep. 3 Eq. 375. = Smith D. Lidiard, 3 K. &. J. 253. ' Grant ». Grant, 39 Law J. N. S. 140, 273. SON, ISSUE. 311 iliere are none sucli.^ Jarman^ is opposed to tMs view if tlie parent is living ; for tten there is a possilaility of lis having children: Jarman's view seems to be sound. Else the testament will be interpreted by events. Children may, by the context, include deceased children,^ grandchildren or step -children,* and the phrase, " all the children of my brothers," though used as if to designate a class, may be held to denote nephews and nieces enumerated elsewhere in the will.^ "Grandchildren" do not comprise "great-grandchil- dren," although there may be a clause in the will ex- pressly including grandchildren under the term chil- dren,^ unless the context is explicit on the point. "Nephews and nieces" may be shown by circum- stances to include grand-nephews and grand-nieces, or even, a great-grand-niece.'' As, in the United States, posthumous children are, for all testamentary purposes, the same as other chil- dren,® therefore under a limitation to children " born " at a particular period, a child then ventre sa mere will take.* A pow;er to appoint to children will not authorize an appointment to grandchildren, even when there are no children." Adopted children are not ' the children of the adopter's wife.^^ ' Drayton «. Drayton, 1 Desaus, 337 ; see Smith's case, 3 Desaus, 808.. " Vol. n, 53. ' Lawrence v. Hebbard, 1 Bradf. 353. '' Barnes v. Greenzeback, 1 Edw. 41 ; see Lawrence «. Hebbard, ' 1 Bradf. 353. , ' Lorillard v. Coster, 5 Paige, 173, 184. • Hone V. Van Sdhaick, 3 N. Y. (3 Comst.) 538. ' Cromer v. Pinckney, 3 Barb. Ch. 466 ; Bowers v. Brower, 9 N. Y. Leg. Obs. 196. « Eev. Stat. K. Y. Vol. I, 734 ; 4th Kent, (5th ed.) 380,413 Stat, of Dist ' Trower «. Butts, 1 8. & Stu. 181. " Eobinson v. Hardcastle, 3 Bro. C. C. 844. " Barnes e. Allen, 35 Ind. 333. 312 GIFTS TO CERTAIN PEKSONS AND CLASSES, A bequest to the two oldest children of A., means- the two oldest at the death of the testator. The refer- ence points to age, not names ; ^ and where there is a devise to children as a class, those by different mar- riages will take, especially if there is a gift over on default of issue.^ Eepresentation is not allowed, in Connecticut, be- yond the degree of brothers' and sisters' children.^ In North Carolina, a devise to a class operates at the tes- tator's death. But, where there is a preceding life estate, all born into the class during the life estate, par- ticipate; and those who die during the same period do not lose their interests.* A mistake in the number of " chilck-en " referred to in a wiD, is generally unimportant. K, therefore, the testator refers to A.'s three children, whereas he has four or five, all will, nevertheless, take. If the number specified be that of the children living at the date of the will, none born afterwards can take.® In Langston v. Langston,^ the House of Lords raised an estate tail by implication in an eldest son, though he was not mentioned at all in the will, while the second, third, fourth, and other sons were. " Other " was held to comprise the eldest son. This is, perhaps, the most strange decision on record. Had the House held the omission of the word " first " to have been caused by mistake, their judgment would have been rational, though not legal. But to imply an estate from an et cetera^ while there was a palpable omission ' Miles V. Boyden, 3 Pick. 313. ^ Crotchett «. Taynton, 1 Kuss. & My. 541 ; see Stavers v. Barnard, 2 T. & C. C. C. 539. ' See Cooke v. Catlin, 25 Conn. 387. . * Mason ». White, 8 Jones. Law, 421 ; Simson «. Smith, 6 Eq. 347. ° Adams v. Logan, 6 Mon. 175 ; Vernon ». Henry, 6 Watts, 192. " 8B]igh, N. S. 16. SOK, ISSUE. 313 of tlie name of the eldest son from the place where it ought to be, seems as strange as it is entirely opposed to many of the rules of the courts in construing devises strictly. Giving an interest to persons unnamed is, hov^rever, no compensation, on the average, to those who are named by testators, but despoiled by the law. " Younger children " are to be ascertained only when the portions are payable, if the gift proceeds from a parent. J£ a stranger is the testator, they are to be ascertained at his death.^ One who is then a younger child is not excluded by becoming elder after- wards.* Younger children mean those who do not take the family estate, whether they are younger or not. Thus, the eldest son, if unprovided for, may take under the description of a younger child. Yet, this rule does not apply if the testator is not a parent, but a stranger. A " youngest child," also, sufficiently indicates an only chHd. In Parkman v. Bowdoin,^ the word children was construed to mean issue or heirs of the body. How- ever, thfere is a great indisposition in American courts to extend the application of the rule in Shelley's case under wills, or even to adopt that rule to the extent al- lowed in England. The word issue frequently means children, especially where " issue" are substituted for their parents,* and they are directed to take their "parents'," or their " father's " or " mother's " shares.^ In a devise with power in trust to convey " to any ' Miles V. Boyden, 3 Pick. 313. ' 3 Jarm. 119. ' 1st Circ. (Mass.) 1833; 1 Sumn. 359. ' Merrymans v. Merrymans, 5 Munf. 440. " Buckle «. Fawcett, 4 Hare, 536. 314 GIFTS TO CEKTAIN PBESOIfS ANB CLASSES. of the male descendants of any family of tlie name of D. and their heirs," the word family was held to mean children who took individually ^6?- capita} The phrase '■'■ legal representatives" also sometimes means children.^ The rule in Wild's case is, that a devise to one and' his children gives the parent an estate tail, if he has no children at the time of the devise,^ but, if he has children then, he takes jointly with them. In a devise to A. to hold " to him, his children, or grandchildren" A. was held to take an estate tail, as he had no grand- children at the date of the will, though he had children.* This ruling is sound, since the phrase " or grandchildren" showed that the word children was not a term of purchase or designation of individuals. The case is precisely similar to Wood ri. Baron.^ The rule in Wild's case is not applied in favor of after-born children, if those living at the tiime of the will shall die. § 5. Illegitimate children. It is sometimes hard to determine whether a description of a person is partly erroneous, or points to an illegitimate relative.^ The maxim which presumes all past events to be legal — omnia prcesumuntmr — is often applied to help the interpretation of such a passage. The word children, for instance, standing alone, means only legitimate children.'' A like rule ' Dominick v. Sayre, 3 Sandf. 555. " Phyfe V. Phyfe, 3 Bradf. 45. 'Nightingale v. Buh-ell, .15 Pick. 104-114; see Can- ». Estill, 16 B. Monroe (Ky.) 309. ' Wheatland v. Dodge, 10 Met. 502. " 1 East, 259. " James V. Smith, 14 Sim. 314. ' Wilkinson v. Adams, 1 V. & B. 423. ILLEGITIMATE CHILDBEN. 315 applies to tte terms "son," "issue," "relations," &c} The last term is also construed to mean next of kin, within tlie meaning of tlie statute of distributions. If lield to mean all relations of the donee, the gift would be void for uncertainty and indefiniteness. The presumption implied in the maxim quoted ex- cludes illegitimate children, if there are or ever can be any legitimate who can take the gift.^ " The question comes round to this," says Lord Eldon, " whether it is possible to say he could mean at the time of making that will any but illegitimate children." ^ Illegitimate children, however, will take the gift, if their parent is dead at the date of the wiU, and this fact is known to the testator.* Illegitimate children or other similar relatives never- take under a gift to children or other relatives, if the testator could possibly mean any but illegitimate.^ An impossibility of this kind, indeed, occurs, if the parent is believed by the testator to have died and have left none but illegitimate children, or, at most, but one legitimate child. The illegitimate children take in such a case. They will also take by name as persons designated. But, whenever they can be excluded with out doing violence to the context, the courts will do so. In Edmunds v. Fessey ® the testator gave a legacy to " the sons and daughters of A. B. living at my death." There were two "legitimate and one illegitimate son and one illegitimate daughter of A. B. living at the time of the testator's death. Sir John Romilly, M. R., admitted the illegitimate daughter, but excluded the illegitimate ' lb. 468. ' Kenchel v. Scrafton, 3 East, 530. § ' Wilkinson «. Adam, ttt. sup. * Lord Woodhouselee ». Dalrymple, 3Mer. 419; Gill ». Shelley, 3 R. & My. 336. •■ Wilkinson ». Adam, 1 V. & B. 461, 468.' ' 7 Jur. N. S. 383. 316 GIFTS TO CERTAIN PERSONS AND CLASSES. son. His Honor had no alternative according to the settled rules respecting the admissibility of illegitimate children. The decision may appear to have turned on the accident of the event. But, this cannot affect the principles of interpretation.' The .testator might have contemplated the possibility of the very event which happened. An illegitimate child, indeed, cannot take under a general description, as " such other child that may be bom of my house-keeper." ^ The case of Edmunds v. Fassey, however, would be decided differently in America, where all the illegitimate children would probably, under the circumstances, be admitted to take. Under a gift to children, an illegitimate child can only take when recognized as a child, and when there are no other children. But, if there is one legitimate child, the illegitimate child will still take under a gift to children in the plural. In Bayley v. MoUard,^ the testator give a legacy to the illegitimate child of W.; yet, such a child got no share in a residue given to the children of W. This case ignored the sense in which the testator obviously used the term " children " in his will. On the other hand, in Wilkinson v. Adam,^ the future illegitimate children of a testator "were let in, although this devise savors of immorality, and though legitimate children might possibly claim under the bequest in question. Legitimate and illegitimate children never can both claim under the same bequest, and if there is at the date of the will a possibility that both may claim, the illegitimate can never take. If they do, then the legitiAate cannot take, unless all are persons designated. ' Medworth v. Pope, 5 Jur. N. 8. 996 ; see Edmunds «. Fassey, 7 Jur. N. S. 382. " 1 Russ. & Myl. 581. ' 1 Ves. & Bea. 433. FAMILY. 317 In Shearman -y. Angel/ a testator gave a bequest to Ms mother for'life, remainder to her children, and gave another bequest to his sister. The testator and his sister were, illegitimate children of the " mother." The sister was considered not to be included in the devise to the " children." This decision was harsh, when we consider that the testator was himself illegitimate, and did not expressly exclude his " sister " from the second bequest. A testator devised real estate to his two daughters, A. and M., " meaning and intending that all the chil- dren that have been or may be born of their bodies shall become heirs to the same." At the time the will was made, both daughters had illegitimate children. It was held that the daughters took in fee, and that the illegitimate children were only to be regarded as their heirs equally with legitimate ones.® A bequest to an unborn illegitimate child, 'the mother being described, is valid,^ unless the paternity of the child is made a qualification of its taking the bequest. It is then void, the bastard being necessarily by law nobody's child — -fZius nullius. § 6. Fa/mily. The term "family" primarily means children, as. regards bequests. Therefore, a bequest to A.'s family does not comprise A. or his wife.*" In devises of realty, " family " means heirs, or heirs of the body. Of course, the context may show that the testator meant by family a whole household, including servants, or his next of kin. The word " family," however, will often be construed ' 1 Bail. Eq. 351. ' Hughes V. Knowlton, 37 Conn. 439 ; Woodstoek v. Hooker, 6 Conn. 55 ; Welles v. Allcott, Kirby, 118. ' Pratt V. Flamen, 5 Har. Ifc Johns. 10. ^^Bames v. Patch, 8 Ves. 604. 318 GIFTS TO CERTAIN PEESOKS AND CLASSES. to mean relatives, rather than children/ just as where a testator uses the words issue and children synony- mously, the meaning of the term issue will prevail.^ The general meaning of a term obtains, of course, in wills only where the terms in question are not inter- preted by the context.^ The word family may of course, therefore, be so qualified by the context as to i];iean heirs, or even rela- tives by marriage.* If the interest was mere personalty, the term, if standing alone, was formerly void for uncertainty.^ If the interest was composed of both realty and personalty, the' same result sometimes followed.® All these decisions, indeed, may be considered as overruled at the present day. If the interest was realty, the term family was rarely or never void for uncertainty, but was rather construed to mean heir.'' The term "house" has always had the same sig- nification,^ when used with a personal, not real, refer- ence. A like rule was applied to mixed realty and leaseholds.^ However, it is certain that at the present- day, even in England, the term family would never be- held void for uncertainty, even as to bequests of pure personalty. ' Crump V. Colman, 9 Yes. 319. ' Wyth 1}. Blackman, 1 Ves. Sen. 196 ; Merrymans ®. Menymans, 5 Munf. 440. ^ See Cuishan v. Newland, 3 Scott, 103, and Jennings c. Newman, 10 Sim. 319. * 3 Jarm. 19; 3 Williams on Ex. 3d. Am. ed. 818, 819; see 3 Story Eq. Jur. § 1065 b, § 1071. ' Harland «. Trigg, 1 B. C. C. 143 ; Rolinson «. Waddelow, 8 Sim. 134. ° Doe d. Hayter «. Joinyille, 8 East, 173. ' Connden «. Gierke, Hobart's Rep. 39 ; Wright v. Atkyns, 17 Ves. 355 ;, see 2 Story Eq. Jur. § 1071. » Chapman's case, Dyer, 333 b. ° Wright «. Atkyns, 17 Ves. 355. NEXT OF KIN. 319 The word family,^ or relations'^, used in a devise of botll realty and personalty will receive the same con- struction as to both kinds of property,* unless the con- text declares or implies to the contrary. § 7. Next qfhin. The phrase "next of kin" means the nearest in blood, including the father and mother of the proposi- tus, but excludes a husband, wife, and those who claim by representation.* For instance, a brother, but not the children of a deceased brother, would claim under a gift to next of kin.® This decision has not been yet overruled — a contingency now not to be thought of. Legislative interposition alone ought ^ver to be invoked for the purpose of altering a rule fortified by numerous cases. The phrase " next of kin," therefore, means " the nearest blood relations," as father, mother and children of the propositus, and excludes those entitled by repre- sentation. These would be admitted under the statute of distributions, while the children would exclude the parents. Next of kin also take as joint tenants, while next of kin under the statute take as tenants in com- mon.® But a reference to next of kin, as if I had died mfestofe, means the next of kin according to the statutes. " Next of kin " does not comprise relations by affinity.'^ The rule in Spink v. Lewis,® which does not defer the period of ascertaining next of kin until the interest falls into possession, though the testator gives it to next of ' 17 Ves. 255. ' 19 Vee. 299 " Ridgway v. Munkittrick, 1 Dru. & War. 84 ; see Carter v. Bentall, % Beav. 551. * Wright V. Trustees of Method. Epis. Church, 1 HoflF. Ch. 213. ' Elmesley ». Young, 3 Myl. & Keen, 780. • Elmesley «. Young, 3 My-. & K. 780. ' Nichols V. Savage, 18 Ves. 53. » 3 Br. C. C. 355. 320 GIFTS TO CERTAIN PpESOKS AND CLASSES. kin " living at the time tlie estate comes into possession," is justly disapproved by Judge Eedfield.^ Tlie rule in Gundry v. Pinniger, v^hicli recognizes only the next of kin at tke time of tke testator's death, is thought by Mr. Hawkins^ not to apply so strictly to relations. The cases support this view.^ " Next of kin of the male line " means merely next of kin ex parte paternal A gift to next of kin ex parte materna may go to one who is also next of kin ex parte paterna, unless the male side is excluded.^ K it is, then the next of kin after the former take. The phrase " next of kin by way of heirship" means, as regards realty, the heir, even though he be not next of kin.^ § 8. Helations. Eelatives mean next of kin, according to the statute of distributions.'' This rule applies to gifts of realty as well as of personalty, yet the term does not include a wife.' In Storer v. Wheatly,® a bequest to " nearest re- lations or connections according to the laws of the com- monwealth " was held, in Pennsylvania, not to include testator's widow. The term " relations " never includes husband or wife or relations by affinity. The case of Withy V. Mangles® is an authority for the position that " next of kin" will be computed by the degree of their relationships, even though some of them might not take ' Vol. II, 90. = p. 105. ' See Lees v. Massey, 3 De G. F. & J. 113; Tiffin r. Longmaii,15 B. 275. " Boys V. Bradley, 10 Hare, 389. " Gundry ».' Pinniger, 14 Beav. 94. ° Williams v. Ashton, 1 Johns. & H. 115. ' Morton «. BaiTett, 33 Me. 357. ' 1 Penn. Stat. 506. * 4 Jurist, 717. RELATIONS. 321 Tinder the statute of distrilbutions. In the case cited, the parents as well as the children of the testator par- ticipated in a gift to next of kin. The word " near," " deserving " or " poor," prefixed to " relations," does not alter the sense of the latter term. But the phrase " nearest relations " means next of kin simply, and without representation. " To my next of kin as if I had died intestate " is ohly the same as " to my next of kin," and does not include the testator's widow.^ A gift to poor relations is sometimes construed as a charitable use, though confined to next of kin. If such a gift, therefore, consists of realty, it wUl be void by statute in England and in some of the States.^ A gift to relations of one's nomie means a gift to per- sons of his stock or family. Therefore, a married sister will take, unless the testator really meant that his name should be borne by the donee at the time of the vesting of the interest. In the latter case, the assumption of the name by legal license is of no avaiL* K the testator specifies a certain number of his "nearest" relatives, the description will be applied irrespectively of the statute.* The case cited also deter- mines that, where the gift is to "relatives or connec- tions," connections by affinity will not take until the list of blood relations is exhausted. Under a gift to " such of my nearest relations as my executors shall think the greatest objects of charity," only those entitled un- der the statute of distributions will take in New Hamp- shire.® "Relations" mean those existing at the time of testator's death. A like rule applies where a life inter- ' Smith «. Campbell, 10 Ves. 400. ' See infra, c. 26, § 5. ' Leigh ■». Leigh, 5 Ves. 93. * Ennis 4). Pentz, 3 Bradf. 382. ' Varrell «. Wendell, 30 N. H. 431. 322 GIFTS TO OEETAIN PERSOKS AKD CLASSES. est is given to a stranger, remainder to the testator's next of kin. The gift f-ests in interest at the testator's death, though not in possession until the death of the life ten- ant.^ " Next of kin " of another, who is dead or dies before the testator, are reckoned at the testator's death, bat, if the testator dies before him, then at his death, no matter whether the gift vests then in possession or not. If the gift be to the next of kin of B. living at a certain time, still none can take but those who were next of kin at the' time of the testator's death, and who survive the stated period. K there be a gift to A. for life, remainder to A.'s next of kin, and A. is the testator's sole next of kin, then it is alleged that these are reckoned at A's death, and not at the testator's, contrary to the general rule.^ But, it is doubtful whether this excep- tion to the general rule of vesting at the testator's death applies at all to realty, as the law is greatly opposed to suspensions of interests in realty. Lord Hardwicke, in Pyot V. Pyot,^ thought that in cases of executory devise the period of vesting was the period of distribution, but Jarman doubts the force of this case. Mr. Hawkins* considers that the period of vesting is not affected by the fact that the tenant for life is the testator's sole next of kin, and cites Halloway v. Halloway,^ Ware v. Row- land,^ and other cases in support of his view. The later cases have settled this point as Mr. Hawkins alleges. A charitable gift to relations, however, is not con- fined to those within the statute.'^ Therefore, also, a power of selection of relations may be exercised in favor of those outside the bounds of the statute.^ But a power of distribution is confined within those limits. ' 3 Jarm. 52. " 3 Jarm. 60, ' 1 Ves. Sen. 335. " P. 100. / 5 Ves. 399. • 3 Phill. 635. ' Attorney-General v. Price, 17 Ves. 371. " Pope ®. Whitcombe, 3 Mer. 689. EELATIONS. 323 The donee of any power to appoint amongst next of kin may appoint amongst those who are such at the period 'of distribution.^ By the phrase " relatives or connections " substitu- tion may be intended ; but connections by affinity will, not take until the class of relatives by blood is first ex- liausted.^ , The court will never give a term a secondary mean- ing if such will render the gift void,^ but will readily deviate from the primary sense in order to effectuate the intention. Thus, " children " may comprise grandchil- dren,* and more remote descendants. " Cousins," how- ever, means merely first cousins. The phrase " brothers and sisters " comprises those of the half blood, but relations by affinity are, as a rule, not regarded as com- prised under general terms. A devise to one's wife means only the person who is the testator's wife at the date of the will.® A devise to " the husbands of my daughters " will probably be construed in the same way.^ A gift to " my servants," it is thought,*^ will extend to those in testator's service at date of the will, though they leave it before his death. Judge Redfield^ "prefers to comprise by such a phrase only those who are in the testator's service at the time of his decease, no matter whether they were his servants at the time of his mak- ing the will or not. The best rule, perhaps, would be not to admit thbse who entered testator's service recent- ' Finch V. Hollingsworth, 31 B. 112. ' Ennis v Pentz, 3 Bradf. 382. " Crooke v. Brooking, 2 Vern. 107. . * Prowett V. Kodman, 37 N. Y. 42 ; see Jackson v. Staats, 1 1 Johns. 387, 351 ; Hallowell v. Phipps, 2 Whart. 378. " 3 Redf. 28, n ; Lady Lincoln v. Pelham, 10 Ves. 166. « Bryant's Trusts, 3 Sim. N. S. 103. ' 1 Jarm. 306. ' Vol. II, 96. 324 GIFTS TO CERTAIN PERSONS AND CLASSES, ly before Ms death, nor those who were then serving- elsewhere, but to confine the bequest to such of testa- tor's servants as were in his service both at the date of the will and at the time of his death. The term " serv- ants " means domestics hired at a yea/rhj stipend. Of course, if a word occurs frequently in a will, the term vnll be throughout interpreted in the same manner, if there is nothing in the context to the contrary.^ AUter if the context is adverse to suqh an interpretation.^ § 9. Stocks^ and individuals. " Issue " take as joint tenants. If the gift is to them as tenants in common, they take^er capita? A gift to> the children of several persons, as of A. and B,, is dis- tributed amongst them^er capita, and not per stirpes.^ A like rule applies to a gift to one, and the children of another standing in the same relation to the testator, as " to my brother A. and the children of my brother B." This rule, however, will not apply if the income ig ap- plicable per stirpes. Other slight indications of inten- tion will neutralize the legal presumption. The rule is somewhat irrational. It is doubtful whether it is recog- nized in America.® , Though, under a gift to the children of A. and B., as tenants in common, the children tdikeper capita^ yet they will take per stirpes, if A. and B. take life estates,'" The doctrine in Arrow v. Mellish seems sound, yet it is 80 limited, if not infringed upon, by other cases,® that no ' Ridgway ». Munkettrick, 1 Dru. & W ar. 84. " Carter v. Bentall, 3 Beay. 551. ' Davenport v. Hanbury, 3 Ves. !?58. * Expa/rU Leith, 1 Hill Ch. 153. ' See Alder v. B^all, 11 Gill & J. 138 ; Tiesel's Appeal, 37 Peim. St. 55. • Lincoln v. Pelham, 10 Ves. 166. ' Arrow v. Mellish, 1 De G. & Sm. SSS^. ' See Abrey v. Newman, 16 B. 431. STOCKS AND INDIVIDUAXS. 325 great reliance*can be placed on it, except where the con- text is the same as in the instrument there adjudicated upon. As the phrase, " to be divided equally among the children of A., B., and C." gives fer capita}- so a like rule applies where the gift is to persons standing in various degrees of relationship to the testator.^ Under a devise of a homstead to testator's three daughters, A., B., and C, and the children of his son, D., the devisees were held to take fer stirpes? Under a devise of the testator's estate,* " one-fourth part to be given to the families of Gr. H,, "W. B. B., and A. B., to those of their children that my wife shall think proper, but in a greater proportion to F. P. H,, than to any other of G. H.'s children ; to E. B. in a greater propor- tion than any other of A. B.'s children ; and the bal- ance to be given to the families of C. and J. T. G.'s children, in equal proportion," it was held that the children of C, and J. T. Gr. took per stirpes and not per -capita, and that the property devised to them was to be divided into two equal parts, one moiety to be as- '. signed to each family. " I wish my personal and real estate to be appro- j)riated equally to the benefit of my wife, E., and of my children," * naming two. It was held the legatees all took per capita, and that each was entitled to one-third of the residue, after the widow's dower was satisfied, A testator bequeathed the' residue to his brother A., and to the male heirs of his deceased brother B., with the direction that C, one of the sons of B., should re- ' Collins «. Hoxie, 9 Paige, 81. ' Murphy ». Harvey, 4 Edw. 131 ; see Butmer v. Storm, 1 Sandf. Ch. 357. ' Lyon ». Acker, 33 Conn. 222 ; see Leland «. Adams, 12 Allen, 286. " Walker v. Griffin, 11 Wheat. 375. » Seabury «. Brewer, 53 Barb. 662. 326 GtPTS TO CERTAIN PEESOKS AND CLASSES. ceive "no part whatever, but the same to be dividect among, the other male heirs of said B., deceased." ^ It was held thait the distribution should he per stirpes and Tioi per capita. Under a bequest to " the descendants of my three uncles," the children of the uncles take per capita, and . not per stirpes', * and, under a bequest " to the heirs of my late husband, and to my heirs equally," each class of heirs takes, per stirpes, one-half of the sum be- queathed.* Next of kin take per stirpes.* As to distribution in Connecticut, see Cook v. Catlin.'* Relations, however, take per capita, if they happen to be all of the same degree, though descended, say two or more from one stock, and one only from another. Toller in his work '' on Executors," and Mr. Justice Williams in his comprehensive treatise " on Executors and Administrators," have laid down that, " If a father have three children, John, Mary, and Henry, and they all' die before the father, John leaving, for instance, two children, Mary three, and Henry four, and afterward the father die intestate, in that case all his grandchildren shall have an equal share, for, as his children are all dead, their children shall take as next of kin. Such,, also, woujd be the case with respect to the great grand-, children of the intestate, if both his children and grand- children had all died before him." Sir John Wickens, however, in re Ross's Trusts,® has held that the passage cited is not law, and is a mere dictum transferred into ' Clark V. Lyn.ch, 46 Barb. 68. " Brown v. Brown, 6 Bush, (Ky.) 648. = Bassett v. Granger, 100 Mass. 348. " Tillinghast v. Cook, 9 Met. 143, 147. ' 35 Conn. 387. " Referred to in Albany Law Journal, Vol. V, 135. STOCKS AND INDIVIDUALS. 327 Mr. Justice Williams' treatise from Toller, and that " it appears to stand there on. the authority of Toller, since the only cases cited are those cited by Tbller, and that these are irrelevant." In. the case supposed by Toller, therefore, the issue take per stirpes, and not per capita.. CHAPTEK XXIV. § 1. Natwre of legacies. A\ testamentary gift of land is termed a devise ; of personalty, a legacy or bequest. The term legacy in- cludes annuities and all personal charges,^ unless the context is to the contrary. A bequest, however, of an annuity or clear yearly sum, is a gift free of legacy duty.'^ The phrase " all the legacies before mentioned " will not include a portion.* " An equal share of my property" applies to the interest which the donee is to take, as well as to the subject of the gift.* " Equally to be divided " relates to the quality and not to the quan- tity of interest given, and creates a tenancy in coi5mon.® In Eagle v. Emmet,^ it was held that a policy of in- surance does not pass under a general devise of personal estate, but that the representatives of the testator take such moneys as may accrue from the policy in trust for the parties interested in the property insured. It was held in Ennis v. Smith,'' that a bequest of "all my effects" may be so controlled by the context and surrounding circumstances as to deprive the phrase of its full natural effect. Parol evidence, however, would not be admitted in England of the meaning of the ^ See Heath v. Weston, 3 D. M. & G. 601. = Pridie v. Field, 19 B. 497. ' ShoU «. ShoU, 5 Barb. 313. * Lawrence v. Lawrence, 1 Edw. 241. ' Sweet 9. Geisenhainer, 3 Bradf. 314. • 4 Bradf. 117. ' 14 H. 400 ; Smith ». Bell, 6 Pet. -68. NATUEE OF LEaAOIES. 329 phrase, even in more peculiar circumstances than existed in the case of Ennis v. Smith, Indeed, there seems to be no ground, in point of principle, for hold- ing that the phrase admits of any basis whatever for the adduction of parol evidence. Such evidence is ad- mitted when the ambiguity relates to a concrete subject or object, and not to abstract phrases, such as effects, property, or wealth in genereii. In deciding on the validity and construction of purely personal legacies, the court follows the analogies of the civil law, but, as regards legacies charged on land, these are interpreted according to the rules of the common law. For, formerly, personal legacies were administered by the ecclesiastical courts, which used the civil law. But, devises of land were construed by the common law courts since the reign of Henry the Eighth. No suit lies at common law by a legatee against an executor, unless he has assented to the legacy, and it is specific ; because until the testator's debts are paid, it is not clear that the legatee has any claim.^ This is another advantage which a specific has over a general legatee, who, semMe, can never sue at common law, even though the executor has assented to his bequest.^ These rules of law are now altered in many of the States. But, where no statute applies, the rules of the common law, of course, still subsist, unless nullified by the course of adjudication. Where there is an actual trust, express, implied, or constructive, or the legacy is charged on land, equity will assert an exclusive jurisdiction, and in all other cases the court has a concurrent jurisdiction, except where statute law provides to the contrary. A testator is presumed to speak of the state of his ' 3 Bl. Com. 513. ^ story, Eq. Jur. 591. , 330 LEGACIES CLASSIFIED, personalty as existing at tlie time of his deatli, unless there is something in the context on the nature of the subject matter, or of the provision, to preclude this pre- sumption. Therefore, where a testator releases A. from aU notes, charges, or advances, this means such securities as may be due by A. to the testator at his decease.^ Bequests, indeed, are often construed as If the will spoke from its date. A codicil, however, mafees the will always speak from the date of the codicil, unless a contrary intention is apparent.^ § 2. Legacies classified. Legacies are either general, demonstrative, or spe- cific. A legacy is general when it is a sum of money or a gift of an article, such as a horse or ring, shares or stocks, without further description. General gifts of the latter kind, however, are rare. They are usually specific, such as " my shares, ring, horse," . Hale, 8 Ves. 410. ' 7 Johns. Ch. 358. , MCE. Green, 318, 643. ' 1 Eop. 337. " 1 Rop. 334. ' Lewin v. Lewin, 3 Ves. Sen. 41G. » Creeds. Creed, 11 CI. & F. 491 ; s. c. 1 Dr. & W. 416. • LEGACIEg CLASSIFIED. 335 primarily or solely charged on the property in question. If charged solely upon it, the gift is specific.^ Annuities charged on land are thus usually specific, while a personal annuity for life is general.^ A legacy of the whole or part 'of the proceeds of real estate is equivalent to a gift of an interest iil land, and is, there- fore, specific, though a charge of legacies on real estate is not thereby rendered specific.^ A gift of particular stocks or annuities, or of stock or annuities or particular funds is still general,* even though the testator own such, unless he declares his in- tention expressly or by implication to bequeath such identical stock or part thereof. Unless he is thus explicit, the coincidence in amount of the bequest and of the value of the stock owned by him will not render the gift specific.^ The case of Avelyn v. Wardj^ but not that of Ashton v. Ashton,'' is inconsist- ent with Purse v. Snaplin. Eoper successfully recon- ciles Ashton V. Ashton with Purse v. Snaplin, upon the ground that in the former case there was a trust to sell the shares or annuities in question, and this trust would be insensible unless the legacy was specific. A bequest of stocks or shares will pass any of the denomination possessed by the testator at the time of his decease,^~and the legatee will be entitled to elect, if the number bequeathed be less than the amount owned by the testator. Such a bequest is general unless the shares are referred to in a specific manner as " my shares," or are otherwise identified.* The case of Av- •■ See 1 Eop. 197, 198 ; Dickin v. Edwards, 4 Hare, 373. ' Hume V. Edwards, 3 Atk. 693. ' See Creed v. Creed, 11 CI. & Fin. 491. * 1 Rop. 315. ^ Purse V. Snaplin, 1 Atk. 415. » 1 Ves. Sen. 430. ' 3 P. Wms. 384. " See Trinder a. Trinder, L R. 1 Eq. 695. ' Robinson v. Addison, 3 Beav. 515. 336 LEGACIES CliASSITIED. elyn v. Ward/ whicli is to the contrary, seems to have been overruled. A gift of money " in stock," " out of stock," " out of the dividends of stock," or of a personal annuity out of the dividends of stock, is genera), and is not a gift of any specific stock.* "For, the thing bequeathed is money and not stock.^ A gift of all the stocks the testator has or will have at the time of his decease is specific. For, that is spe- cific which can be rendered such. Id cerium, . Porter, 8 N. Y. 316 ; Everett ». Lane, 2 Ired. Eq. 548; over- ruled, Davis i>. Cain, 1 Ired. Eq. 304. ' Jacques «. Chambers, 3 Coll. C. C. 435 ; see Ludlam's estate, 13 Penn. St. 188. ' Howe «. Earl of Dartmouth, 7 Ves. 137; Sayer «. Sayer, 2 Vern. 688. ' Pickering v. Pickering, 4 My. & Cr. 389. LEGACIES CLASSIFIED. 339 found. It was held that the exception was void, but that no goods passed but those in the house at the date of the will. The phrase " now owned or posesssed hj me" will usually pi event after-acquired property from passing. But, a gift of my library now in B.'s custody has not this restrictive force. The word now in similar gifts of " sundries," or collective bequests, as of a flock of shpep, would probably be construed in the same way, as carrying any subsequent enlargement of the subject-matter of the gift. Accretions, such as bonuses, will pass under a gift of money secured by a policy of insurance,^ at least in those States where the will speaks from the death of the testator, and the con- text is not to the contrary. A charge upon land devised by will of a certain percentage on the value of the land is a pecuniary legacy, and passes to the surviving husband of the legatee.^ Though a general residuary clause is not specific merely because it enumerates some particulars, yet, a bequest of residue in a particular country or county is specific.^ So is a residue of certain stocks, after deduct- ing previous specific bequests.* The maxim id oertum est applies to such cases. In Minor v. Dabney,® after an enumeration of certain articles, there was a gift of " all the estate not before devised." This clause, however, was construed to include merely articles of the same nature, ejiosdem generis, as those enumerated, and, consequently not to Ibe a general residuary devise. Although a tenant for life of a specific bequest, or -^ , ' 1 Eoper, 396; Courtenay v. Ferrers, 1 Sim. 137. ' Gray ®. McDoweU, 6 Bush. (Ky.) 475. ' Nisbett «. Murray, 5 Ves. 149. * Elwes 9. Canston, 30 Beav. 554. i '3 Rand, 191. 340 LEGACIES CLASSIFIED. • of a lease, enjoys it in specie, a tenant for life of a residue, or of tlie bulk of a testator's estate, has not the same privilege. The court converts terminable funds into public stocks, in order to equalize the income for the benefit of the tenant for life and the remainder- man.^ Judge Redfield,* however, thinks the rule in Howe's case would not be acted on by the American courts. At all events, the same rules as ,to requiring security or an inventory from the tenant for life prevail in the American as in the English tribimals.^ Extra dividends or bonuses on shares belong to the tenant for life, and not to- the remainder-man; and, if the shares are specifically bequeathed, the bonuses, if declared after the testator's death, belong to the specific legatee, and not to the general personalty.* If a specific legacy is once converted by the testa- tor, it is adeemed, even though the price of it, or the securities into which its price has been converted, con- tinue in his hands.® If a legacy, in terms specific, is not in reality such, owing to the testator's not having the whole interest or amount in the particular interest bequeathed, yet the legacy is construed as specific. Therefore, a bequest of 100 shares in the St. Louis Railway, while the testator has only 20 of such shares at the time of his decease, is good only for the 20.® If he has more than 100 at his decease, only 100 will still pass.'' Gifts of specific legacies, however, usually speak from the date of the will. As a gift of all of a testator's personal estate is ' Howe ®. Earl of Dartmouth, 7 Ves. 137. = Vol. II, 151. ' Covenhoven ». Shuller, 2 Paige, 133, 132. * Maclaren «. Staunton, 7 Jur. N. S. 691 ; Simpson e. Moore, 30 Barb. 637. ' Gilbert «. Gilbert, 29 Beav. 496. « Gordon «. Duff, 7 Jur. N. 8. 746. ' Foote, ex parte, 23 Pick. 299. • LEGACIES CLASSIFIED. 341 •general ^ and not specific, the only principle on which the distinction between a gift of a residue of land and a gift of all one'^ personalty can be supported, rests on ' the primary liability of the personalty to the testator's debts. His personalty, therefore, as such, and not con- veyed in terms necessarily specific, cannot be deemed of that nature. It is only apparently of a certain quan- tity or amoujit. From that value must be deducted the unknown and uncertain amount of testator's debts. A donee of a specific legacy is entitled to have it given to him redeemed, if subject to any pledge, or to have it specifically replaced by other property of the same description, at the value of such legacy, at the ■end of a year from the date of the testator's death, if the subject-matter of the specific gift was improperly sold by the executor. If the chattel be of peculiar value,* such as a painting or heirloom,* the executor will be restrained by injunction from disposing of it, except to pay debts. ' If a legacy is given for a particular purpose which cannot be effected, as to apprentice one or the like, the legatee, nevertheless, take^ a vested interest in it f and when a future period of distribution among children is contemplated by the will, all who are born during the life of the parent, or before the period of distribution, are entitled to a share.* The court will not give a portion intended for a younger child to the person who, by the decease of his elder brother, obtains the family estate. This is on the same principle that renders it averse to give double portions.* It will rather hold a legacy to be in satis- ' Calkins «. Calkins, 1 Redf. 337 ; but see Worley v. Worley, 1 Bailey Ch. 397. " 3 Spence, 463, 466. ' See Viner v. Francis, Tud. Lead. Cas. E. Prop. 3d ed. 702. * 3 Spence, 411-413. 342 LEGACIES CLASSIFIED. • faction of a portion, while it will not extend a portion raisable out of land, under a settlement, to the personal estate, at all, unless it is so directed by the testator, in which case the gift takes rank only as an ordinary legacy, unless otherwise directed in the will. A por- tion, too, is never raisable until required. These rules show a leaning to the heir or next of kin, and a disin- clination to encumber or dismember inheritances.^ But, the infant has an immediate right to injserest, even though it is not charged in the will * As regards future legacies, the court will compel the executor to give security for their payment, or bring the fund into court.® A remainder-man can likewise require the tenant for life to give security that the chat- tels will be forthcoming, if there is danger of waste. If there is no such danger, the remainder-man is only entitled to an inventory.* • A first legatee of chattels consumable by use can only get the interest arising from the chattels when converted into money, unless the bequest is specific. In this case he gets the thing itself for the time limited in the will.^ A like rule appljes where the legacy com- prises some things of a permanent character.® If legacies abate, owing to a deficiency of assets, and the testator had provided expressly for such deficiency, a fund subsequently arising from trusts that fail goes to the residuary legatee, and not to replace the abatement made in the legacies.' ' 2 Spence, 398. ' 3 Eop. Leg. 1257, 1348, ed. 4. " Story Eq. Jur. 603. * Story Eq. Jur. 604. ' Rapalye v. Rapalye, 37 Barb. 610. ' 3 Paige, 133 ; 3 Mer. 193. ' Dudman v. Sheriflf, 18 W. R. 596. PAYMENT OP LEGACIES. 343 § 3. Payment of legacies — Interest. A legatee cannot compel payment before a twelve- month from the death of the testator/ even though he otherwise directs in the will. The legatee must, of course, be willing to perform any condition precedent." Interest is recoverable from the time when the legacy is payable.^ But, if it is a gift of residue, or of a sum to the executor to invest for the benefit of the legatee, or is in satisfaction of a debt, or is charged on land only,* or is given to a widow in lieu of dower, or for a child of the testator, and the ■v\^idow or child is otherwise un- provided for in the will, the legacy so bequeathed bears interest from the death of the testator, and, in the last case put, the child will be entitled to interest, even though the possession of the' fund is deferred,® if his maintenance is not otherwise provided for. These rules do not apply to grandchildren. Specific ' bequests will carry all gains accruing, like bonuses, by way of accession, and all interest earned thereon after the death of the testator. If the postponement of the enjoyment of the corpus of a legacy given to a child is for some reason personal to the child, as, for instance, until he attains age, the gift bearS' interest only from a twelve-month after the testator's 'death. A legacy carries interest from the date at which it vests,* and, when it vests in possession, it is then at once payable, provided that a twelvemonth has elapsed from the date of the testator's death. But, where prop- erty is limited to A. for life, remainder to B., B.'s re- ' Hoyland ». Schenck's Estate, 1 Harrison, 370. " Curtis V. Potter, 1 Houst, 383; see Redfleld on Wills, Vol. 11, p. 466, and notes. ' Taylor v. Hibbert, 1 Jac. & W. 808. * Pearson v. Pearson, 1 Sch. & Lef. 10. ' Pollard ». Pollard, 1 Allen, 490. ' Barber v. Barber, 3 My. & Cr. 688; Harris v. Pinch, McLel. 141. 344 PAYMEKT OP LEGACIES. mainder, thougt vested, does not bear interest, that being expressly given to A. during his life. A conditional or contingent legacy does not bear interest, except that where the gift is to a minor, other- wise unprovided for, the court will give the interest even before the gift vests,^ provided the interest is not meantime otherwise disposed of. If the gift is vested, though subject to be divested, as, if the minor do not attain age, he is, of course, entitled to interest under the general rule as having a vested interest, even though he may die under age, and the gift over then take effect. "Where the first interest is contingent, the interest accu- mulates for the benefit of the vested gift in remainder.^ If an annuity is bequeathed, interest is due one year from the testator's death ; in other words, it bears inter- est from his death. But, interest is not due on a gen- eral legacy until two years have elapsed from the date of the testator's death,® because the executor is allowed a year to Collect and realize the assets; On a devise to an infant, and, in case he die without issue before majority, over, the infant can only require the income meantime.* A provision for maintenance, however, will not always be limited to the interest o the fund.® As to deducting advances, see Morton v. Morton® and Bunner v. Storm.'^ In appointing a guardian in the State of New York, it is not necessary to pursue the words of the statute.* ' Pinney v. Fancher, 3 Bradf. 198. ' 2 Wms. Ex'ors, 1290. ' Gibson v. Bath, 7 Ves. 89 ; Bitzer «. Hahn, 14 Serg. & R, 232. ' Bradley v. Amidon, 10 Paige, 235. ^ Van Vechten v. Van Vechten, 8 Paige, 104 ; King «. WoodhuU, 3 Edw. 79 ; see Craig ». Craig, 3 Barb. Oh. 76 ; Wood ii. Cone, 7 Paige, 471 ; Stewart ». Chambers, 3 Sandf. Ch. 383. ° 2 Edw. 457. ' 1 Sandf. Ch. 357. ' Corrigan «. Kieman, 1 Bradf. 208. '' SPBOIFIO DEVISES. 345 A devise of rents is equivalent to a devise of tlie land itself.^ In Ruppert's estate,^ no disposition was made of sucli income as might accrue on e^ch child's share of the real estate after that child should attain majority. It was held that such income must remain in the hands of the trustees until final distribution, and the|i be distributed ajtnong the residuary legatees. A testator gave property to his wife " for her benefit and. support and the support of his son." It was held that half the income was for the wife's support, and half for that of the son.* For a decision under the 1 N. Y. Rev. Stat., 726, § 40, with respect to a beneficiary being en- titled to accumulations, as being " the person presump- tively entitled to the next eventual estate," see Schettler V. Smith.* A tenant for life of the interest of a fund is virtu- ally tenant for life of the principal, and entitled to its possession upon securing the interest of those in remain- der.^ As to interest, see, further, Cooper v. Scott.® § 4. Specific devises. Devises of freehold and bequests of chattel land are specific, whether given as a residue or by particular description.'' But, in Blaney v. Blaney,® Metcalf, J,, said that the English rule, which regarded a devise of land as specific is destroyed by a statute which enables ' Schryer's Estate, 3 Brews. (Pa.) 536. = 1 Tuck. (N.T. Surr) 480.' ' Loring V. Loring, 100 Mass. 340. * 41 N. T. 338. * Parker's App, 61 Pa. St. 478. ' 63 Pa. St. 139; Leddel v. Starr, 30 N. J. Eq. (5 C. E. Gr.) 374; Dev- lin's Estate, 1 Tuck. (N. T: Surr.) 460 ; Fish's Estate, 1 Tuck. (K T. Surr.) 133. ' Gibbons ». Eyden, L. R. 7 Eq. 371 ; see Clark v. Clark, 11 Jur. N. S. 830. « ICush. 107, 116. 346 KESIUXJB— KBALTT. tte testator to dispose of after-acquired lands. A con- trary doctrine prevails in England, On principle, the present English doctrine seems the sounder. The rule established by the Revised Statutes of New York, the 1st Vicfc. c. 26, and the analogous Revised Statutes of Massachusetts, &c., applies only to the disposing power of testators who use general language, but does | not affect the inherent specific nature of a devise of land. Those statutes, too, were not intended to work any change in the law of specific devises. In Walker v. Parker,' a devise of ," the balance of my real estate, believed to consist of lots numbered six," TOID TESTAMEKTAET GIFTS. tain voluntary association is not void for uncertainty^ but the members will take in tbeir individual and not their associate character.^ If the name or description of a legatee is erroneous, parol evidence can be given of the person really meant.* Therefore, under a bequest to John and Benedict, sons of John Sweet, a son named James, there being no John, was held entitled.* A fortiori, a person may take under a name by repute.* So, if the name is right, but other parts of the description are wrong, the defect can be cured by paroL"^ The question whether , an un- certainty of the description of the subject or object of a gift by will can be cured or not by parol resolves itself into the ulterior inquiry, is the ambiguity so pat- ent as that the testator shows he was aware of it, and that he was leaving a part of his will undeclared in writing? As this is yery rarely the case, it follows that at the present day hardly any case of uncertain or erroneous description in a will can occur which may not be remedied by parol. § 2.' Rule against perpetuities. The rule against perpetuities is founded on principles of public policy, and is not a peculiar law of tenure. This rule against perpetuities is equally applicable to personalty or realty, and to deeds as well as wills. The produce of property or trusts for accumulation are also governed by the same rules, except so far as, is other- wise regulated by statute. The common law is said to — — ' ~ ■ — -1 ' Bartlett «. Bang, 12 Mass. 537. ° Smith V. Smith, 4 Paige, 271 ; Trtastees ». Peaslee, 15 N. H. 317 ; Woods V. Moore, 4 Sandf. 8. C. 537. ° Dowsett v. Sweet, Amb. 175. * Neuthway i;. Ham, Tamlyn, 316. ^ Standen v. Standen, 2 Yes. Jr. 589. BULB AGAIKST PEBPETUITIES. 375 " abhor " a perpetuity.. This aversion long ago assumed form and shape in a rule to the eflfect that no future in- terest in property could be inalienable or indestructible for a longer period than a life or lives in being and twenty-one years and nine months afterwards. This period has been adopted by analogy to the usual settle- ment of property on the marriage of the owner. The period of twenty-one years is independent of the fact of there being an actual minority of a remainder- man; but the additional term of nine months is only al- lowed in case of actual gestation.^ For the purposes of the rule, a child envenl/re sa mere is considered as a life in being.^ Limitations after a failure of issue should be care- fully made to depend on a failure of the issue that take an entail ; otherwise, the remainder will be void for re- moteness. If a term is antecedent to the entail, and the trusts are in any way dependent on a total failure of the issue, such trusts are void. For, as the, term pre- cedes the entail, it cannot be barred by the tenant in tail. It doe^ not, therefore, come within the rule which prevents limitations after an estate tail from being too remote. If the remainders are common law limitations, they cannot be too remote as remainders. But no par- ticular estate can be made to commence one hour later than twenty-one years, or after a life or lives and twenty- one years, reckoned from the testator's decease. Though the testator declines to insert lives, yet he is still lim- ited to twenty-one years. At common law, no question of remoteness could really arise as to land, as such property could only be settled by way of particular vested estate and contin- gent remainder, and the estates of the latter denomina- ' CadeU BAPalmer, 7 Bligli, N. S. 302. » 1 Jawn, 333, 376 VOID TESTAMBNTAKT GIFTS. tion "were in tlie power of tte preceding owner of the vested interest. But settlements of personalty might be open to t]a.e objection of remoteness, if, indeed, in the early ages of the common law any settlement of personalty would be 'valid. Uses and devises, too, being indestructible before the statute of uses was passed, might be too remote and trusts are now in the same condition. In Cole V. Sewell,^ Lord St. Leonards denied that remainders could be too remote. But in Wood v. Griffin,^ Bellows, J., argues, very ably for the applica- bility of remoteness to remainders, on the ground that otherwise an infinite series of life estates might be created to unborn children. A cy pres construction was not adopted in the case referred to, on the ground that the plain intention of the testator was to give the propositus only an estate for life. The ^ rule in Shelley's case was abrogated in New Hampshire, by statute, in 1834.^ This, perhaps, confused the consider- ation of the question in the case last cited. In States, therefore, where the rule in Shelley's case still prevails, the state of facts referred to by Judge Bellows cannot exist, as the cy pres doctrine will be applied, and an estate tail be thus given to the ancestor of the unborn tenants for life. However, so long as the estates of the unborn contingent remainder-men are destructible, they cannot, in. point of principle, be too remote, al- though they are void as possibilities upon possibilities. Such limitations, indeed, it must be admitted, have been held to be void for remoteness, also, in numberless cases. The real ^Property Commissioners, Fearne, Preston, ' 2 Conn. & Laws, 344 ; cited in 3 Jamian on Wills, 728. ' 46 N. Hamp. (Hadley) 230. ^ Crockett ii. Robinson, 46 N. Hamp. (Hadley) 454. EUIiE AGAINST PEBPETUITIES. 377 and Jarman, have thouglit tliat remainders could he too remote. Lewis on Perpetuity also adopts this view and supports it, like Judge Bellows, by reference to tlie fact ttat an estate for life could not, at common law, be given to the unborn son of an unborn son. Yet, it seems clear that, in point of principle, though not of author- ity, a common law remainder can never be too remote, for the same reason that a remainder after an entail cannot' be void for remoteness. The accessory follows the principle. If the preceding tenant can defeat the remainder, it is but an accessory to his. interest, and cannot be open to a distinct charge of remoteness. No -difficulty of this sort can arise as regards vested interests. The question, therefore, is only applicable to the class of remainders termed contingent. These, how- ever, are in the power of the particular tenant, and as ■they can be defeated by the merger, surrender or for- feiture o^ his vested interest, they are equally within the limited area of legal perpetuity. K the estate of A. is vested, and as such cannot be void for remoteness, and if A. can defeat the contingent estate of B., the latter estate is equally free, as A.'s own interest is, from any imputation of being too remote. The opinion of Mr. Lewis,^ therefore, that remainders or common law estates could be void for remoteness, although un- doubtedly supported by the old authorities, seems to be ■ wrong in principle. The author referred to considers that as trustees to preserve contingent remainders will be prevented by Chancery from destroying the remainders, thefse may be too remote. But as the trustees must have the legal estate for the purpose specijfied, the remainders referred to are trusts, which every one admits may be void for ^ Lewis on Perpetuity ; see Sugden on Powers, Intro, p. 1. 378 VOID TBSTAMENTABT GIFTS. remoteness and indestructibility. No life estate could he limite(i to an unborn trustee that would not be as destructible as tbe contingent remainder lie was intended to protect. A fee to an existing trustee will, indeed, render tbe trusts indestructible, but then the trusts are not legal uses or remainders., Kecent* authority is against the position of Mr, Lewis, but the older reports are unaniioaously in his favor. The application of the cfpres doctrine to an indefi- nite series of life estates is certainly authority for holding that, these may be too remote, else why should they be reconstructed or remoulded, and why are such remainders, except the first limitation to the un- born issue, held, when in a deed, to be too remote? But, though ancient authority is on the side of such a view, it seems to be demonstratively certain that re- mainders, properly so called, cannot by possibility come within the reason of the rule against perpetuities,^ Nei- ther can a limitation after an estate tail be too remote, because the tenant in tail can bar it. If the tenant in tail dies soon after his birth, the land, still, will not be be kept out of the market, but wiU pass to the next vested remainder-man, if^the contingent remainder is not vested before that time. Powers of sale and exchange are, for similar reasons, not open to the charge of remoteness, even when no definite period is prescribed within which the powers must be exercised. The rule against perpetuities is founded on the principle that a perpetuity keeps land out . of the market, A power to sell, however, is an au- thority to bring land into the market, and, consequently, if the donee. of the power be an ascertained person, and can sell at any time he pleases, the power cannot pos- ' See Cole «. Sewell. 2 Conn. & Laws. 344. EUIiE AGAINST PERPETUITIES. 379 sibly be open to the objection of remoteness. A, tenant in tail taking subject to such a power cannot bar it, but neither can he bar an annuity or rent to which he is subject. Are, then, rents and annuities issuing out of estates tail void for remoteness ? The tenant in tail can- not sell, but the donee of the power is not thus fettered. The objection of perpetuity, therefore, applies, if at all, to the settlement of the land, not to the donee of the power. But the objection' does not apply to the suc- cessive tenants of settled land, because they are virtually only tenants in tail of such lands', as the donees of the power may elect. Jarman^ considers that remainders may be too 're- mote, though destructible, inasmuch as their destruc- tion is a tortious act which cannot be presumed. This argument, however, is equally applicable to the judicial fiction of recoveries. Why should the tenants in tail barring of his issue and remaindermen be presumed ? Conversely, a feoffment originally was a judicial pro- ceeding made before the assembled freeholders, in whose presence public livery was given. It did not neces- sarily" operate by wrong. Why then should there be any presumption against such a mode of conveyance being used, even though some of its indirect conse- quences would be to extinguish contingent remainders. As a limitation that may be too remote is void from the outset, the infirmity of the construction not being curable by the result, so it may be said that a limitation to an unborn son of an unborn son is void for remote- ness, inasmuch as the particular tenant may possibly never destroy this contingent remainder. But the two cases of remoteness mentioned are only seemingly anal- ogous. They are not really apposite or correllate. In ' Vol. I, 886.' • 380 VOID TESTAMENTAET aiFTS. the former case, tlie limitation is necessa/rily remote in a certain event. In the latter case, the limitation is not necessa/rily remote in any event. No subsequent ac- cident can make it too remote, while at any moment of time there is a person in esse who holds the contingent remainder in his hand. Remainders, therefore, never can be too remote or keep any land out of the market. ' A devise to a class is void, even as to those members that are alive, if any of the doneefe may not come into existence within the allotted period of a life or lives in being and twenty-one years, or may not be in esse at the death of the testator, and the vesting of whose shares is postponed beyond majority.^ K the limitation is so framed as, by possibility, to let in objects beyond the line of perpetuity, the gift is wholly void. No event ever controls construction, unless the testator expressly so desire,* and it is doubtftd whether even his wish can avail against a rule of law, as distinguished from a rule of construction. Jarman, however, admits that an interest void as executory may be good as a remainder. This is perhaps one reason of the rule that any interest that can be con- strued a contingent remainder will never be regarded as an executory devise. The case put by him, however, is hardly in point. It is that of a devise to A. for life, remainder in fee to the children of A. who shall attain* twenty-two. If this is construed as a gift to a class, its validity is open to doubt, and, if not so construed, it does not exeiuplify the position which it is adduced by Jarman to support.' A testator will rarely violate the rule against per- petuities in providing for his children or grandchildren, ' Newman v. Newman, 8 Jur. N. S. 354 ; 1 Jarm. 229, et seq. ; Leake v. Robinson, 2 Mer. 363. ' Lord Deerliurst v. Duke of St. Albans, 5 Madd. 233. ' 2 Mer. 363. RULE AGAINST PBRPETUITIEa. 381 as all these latter must be bom during the lives of Ms' children. It is when conferring gifts on the issue of others that he should be on his guard not to exceed the allotted period of suspending the vesting of any inter- est. '''Of course, an unborn person may take only a life estate' or a term of years. The quiestion of perpetuity relates not to what he takes, but when he takes it. Jarman ^ considers that not only may a limited in- terest be given to an unborn person, but a good re- mainder may be limited after it, if given to competent persons. But this position seems to be true only if the remainder be vested. As regards law, no such limita- tion is good as a remainder, if the particular tenant is not in esse at the time of the testator's decease. As an executory interest, then, the vesting is not necessarily confined to the period" of a life or lives in being, and twenty-one years after. The child may not die under age. What ground, then, is there to allege that the vesting may not be suspended beyond the legal period ? By reason of such possibility it is void. There is reason, doubtless, to contend that, as contingent interests of every kind are now transferable, there is no such thing as a contingent executory interest where the person who is to take the interest is ascertained, though not the event upon which his interest is to vest. But this is not the ground Jarman takes on this point. Indeed, if a limitation is void for remoteness, aU ul- terior Kmitations not of a substitutional nature are neces- sarily void also.** If a gift is limited on the happening of either of two events, one of which is too remote, and the other is not, the gift is valid and will vest in case the legal contin- ' VoL n, 342. See Cooke v. Bowler, 3 Keen. 54. ' Proctor v. Bishop of Bath & Wells, 2 Black. 858. , 382 ■ VOID TESTAMENXAHY GIFTS. geney is fulfilled.^ But, if tlie two events cannot sep- arately occnr, the whole limitation is probaWy void. The law 9n this head is not yet clearly settled.^ But, except where the contingencies are alternative or sub- stitutional, and are thus separable, the question ©f re- moteness is determined by what is possible, and not by what actually occurs.* A power that may be void as to some members of a class is void in toto. But appointments may "be made under general powers to persons who could not take under the primary deed. For a general power is equivalent to the fee for all purposes of sale ; and the rule against perpetuities only applies where there is an impediment to a sale. The rule last stated, therefore, does not apply to special powers. Appointees under such must be persons who could take immediate gifts under the deed creating the special power.* The' rule against perpetuities, therefore, cannot be evaded by directing trustees to settle the trust property in any way not permitted to the settlor himself Appoint- ments, however, that exceed the limits of perpetuity are valid pro tanto, so far as they are confined within the limit, even though the appointments be made to all the beneficiaries as a class."* An indefinite power of sale is calculated to bring property into the market rather than to keep it out of it.® It is strange, therefore, that its validity should ever have been questioned on the ground of perpetuity. Jarman, however,^ seems to consider that such powers ' Fowler V. Defau, 20 Barb. 324. " Cambridge t. Roua, 8 Ves. 18. ' Moore v. Moore, 6 Jones Eq. 132; Loringc. Blake, 98 Mass. 258. * Bi-istowe «. Waxd, 3 Vea. Jun, 336. ' Duke of Marlborough v. Earl of Godolphin, 1 Eden. 404. " Boyce v. Banning, Cromp. & Jer. 334 ; Biddle v. Perkins, 4 Sim. 135. ' Vol. I, 251. This question has been discussed by the author in a review of Sugden on Powers, in Law Magazine and Review, London, May, 1862. RULE AGAINST PEEPBTUITIES. 383 may in some respects be deemed weak. But the validity of those powers is now established in England by several adjudications.* The rule against perpetuities applies to the vesting, not the possession of estates. Sometimes it is difficult to detemline whether the period in question relates to the vesting of an interest or to its being divested m favor of an ulterior donee. K the period is too remote, th^, ia the first case, the interest never vests. But if the period relate to the divesting of the interest, and is ■ tod remote, then the first limitation becomes absolute and indefeasible. The case is analogous to that of a condition precedent, as distinguished from a condition subsequent. Although the cotirse of events will not control the construction, yet the courts will seek, if possible, to ef- fectuate the testator's intention. The decisions have even gone so far as that, where an absolute bequest has been given to unborn persons on whom afterwards a strict settlement was made by codicil, the -judges have rejected the codicil, which was void as giving estates by purchase to the children of persons unborn, aijid have set up the original Will.* If the void limitations are contained in the same document, yet they will often be deemed expunged or executed only cy pres. For instance, if a life estate be given to the unborn child of A. for life, remainder to his unborn grandson, the courts wUl give an entail to A.'s unborn son.' The case of Pitt v. Jackson, indeed, involved a violent application of oj/ pres construction. Still it will prob'ably, be followed in future. In an ordinary case of perpetuity, the cy pres rule will be readily used by the courts. ' Wallis V. Treestone, 10 S. 225 ; Davies v. Davies, 1 Ad. & Ell. K 8. 330. " Arnold v. Congreve, 1 Russ. & My. 369. » Pitt v. Jackson, 3 Br. C. C. 51 . 384 VOID TBSTAMENTABT GIFTS. Upon a devise to the male heirs of M. upon terms, for compliance with which one year after majority was allowed, it was held^ that as M. might die leaving a son as yet unborn, who would be entitled to take within twelve months after he obtained majority, the con- tingency on which the estate depended might not happen within a life or lives in being, or within twenty- one years and nine months after the death of M. Unless, therefore, the devise should be construed so fnat the estate should vest on the death of M., the limitation depended upon an event which was too remote, and the remainder was void. In Maxwell -v. Means,* a testator devised his estate to his four brothers and sisters, and to their children, " but, if they should all die without leaving any issue of the body of either theih alive at the time of the death of the survivor of them, or if such issue should die before attaining the age of twenty-one years, then " his desire was, ' Vol. IV, 508. MORTMAIN. 395 inapplicable,^ It seems, also, clear that ar devise in trust for a corporation would be within the equity of the exception of the statute of wills. Although equity has a common law jurisdiction to execute chari- table uses, yet it must take care to follow the law, whether common or statutory, and not to contravene the plain intent of an enactment.^ In Dashwell v. Attorney-Greneral,' and Wilderman v. Baltimore,* the objects were too indefinite, or rather uncertain. But, at all events, semble, a charitable devise to an unincorporated society will be executed in most of the States, if the objects, though indefinite, yet belong to an ascertainable class.^ In short, charitable uses are, at common law, free from all objection, on the ground of uncertainty of object or remoteness. The question in most cases, therefore, is not whether the State has adopted the 43d Eliz., but whether it has by a positive statute abrogated the common law jurisdiction of chancery to execute charitable uses. By the New York Revised Statutes, a corporation can- not take land by will unless it is expressly authorized to do so. Yet a devise, in New York, to an individual for charitable uses, is doubtless valid, especially if the uses are not a perpetuity ; in other words, if the gift is to be at once distributed. But otherwise unincorpo- rated societies cannot be deemed authorized to take property forbidden to a corporation. For, equity will, by reason of its common law ju?isdiction, execute such trusts, if this can be done without any construction cy ' See Flood's case, Hob. 136. " See Comstock's note to 4 Kent, 506 ; Owens v. The Missionary Society, 14 N. T. 380 ; Marshall v. Downing, 33 N. Y. 366. ' 5 Har. & Johns. 393. * 8 Md. 551. » Bartlett «. Nye, 4 Met. 878 ; GriflSn v. Graham, 1 Hawks, N. C. 96 ; see Kent, vol. IV, 508. 396 VOID TESTAMBNTAET GIFTS. pres, tlie atjects "being sufficiently defined.^ By an act passed in New York, in 1860, cli. 360, no person liaving a husband, wife, child, or parent, can devise or bequeath to any charitable or literary corporation more than half of his or her estate. A devise in charity to a corporation that can take by will is valid, although it has been often laid down that a corporation cannot stand seized to a use. It was held at an early date, in England, that a devise to a corporation, though void under the statute of wills, was good if given for charitable uses. It seems, indeed, that a corporation cannot stand seized to a use different from its own, and therefore the question of devises to charitable uses is only connected with devises to corpo- rations so far that if the association can take land by devise the gift cannot be void for uncertainty, and the corporation takes the legal estate. As chjirities were executed by chancery at common law, it seems equally clear that a testamentary gift to trustees for charitable purposes is valid.^ In several of the States, however, where it was thought the- equitable jurisdiction ia respect to charities rested on 43 Eliz., and where this statute was abrogated, it has been held that charitable devises to unincorporated associations are void for un- certainty.* Canal shares are within 9 Geo. 11, c. 36, but shares in companies that trade in land are personalty,* for such land is itself personaltf^ as regards the partners. The land, indeed, must be used for the business of the company, and not held in trust for the individual share- " 4 Kent, 508. " Orphan Asylum v. McCarter, 9 Cow. 437. ' Dashwell i>. Attorney-General, 5 Har. & Johns. 392 (Md.) ; Gallego e. Attorney-General, 3 Leigh, 450 (Va.) ; T^heeler «; Smith, 9 How. U. S. 55 ; 14 N. H. 315 ; 14 N. Y. (4 Keifn.) 380. * Morris V. Glynn, 87 Beav. 318. MOETMAIK. 397 holders.^ Railway debentures not being assignments of the undertaking, are not within tbe statute.** , If land is vested in trustees for tlie individual mem- bers of a company tliat trades in land, in proportion to the shares of the members, and not for the purposes of the company, such d devise is an interest in land within the mortmain acts.* A devise of land to a cor- poration in another State than that where it has its charter, and is prohibited from holding land, is valid.* This decision seems sound in principle, since land is peculiarly amenable to the lecc loci, and the reason of the mortmain acts does not seem to apply to a State which disregards such restrictions. The act of 9 Geo. II, c. 36, prohibits all devises of land to charitable uses, but does not apply to bequests of pure personalty. If the gift be partly charged on land, it will only be void pro tanto.^ A condition sub- sequent, to convey to a charity, is nugatory, and the devisee holds for his own use.* But, it is doubtful whether the devisee would not, at the present day, be deemed to be a trustee for'the testator's heir.^ Requests to devisees to purchase land are, of course, equivalent to trusts for that purpose, according to the usual rules for construing precatory requests.® But if the trustees have an Qption to lay out the money given them on land, or on personal estate, the statute will not avoid the gift.* ' Hayter b. Tucker, 4 Kay & J. 351. ' Bunting «. Marriott, 19 Beav. 163. ' Hayter ». Tucker, 4 Kay & J. 351. ' Am. Bible Soc. v. Marshall, 15 Ohio, 537. = Waite V. Webb, 6 Madd. 71. = Poor V. Miall, 6 Madd. 32. ' See Stubbs ®. Sargon, 3 Keen, 353. * See 3 Story Eq. Jur. § 1068-1074; Hart v. Hart, 2 fiesaus, 83; Van Dyck V. Van Beuren, 1 Caines, 84 ; Fanvell v. Jacob, 4 Mass. 634 ; Boiling V. Boiling, 5 Mumf. 334. • Soresby v. Hollins, Amb. 311 ; Curtis v. Button, 14 Ves. 537. 398 VOID TESTAMBITTAEY GIFTS. So, where tlie direction will be satisfied by hiring premises, the bequest will be good.^ Yet, a gift on con- dition that the charity get a certain grant of land as a gift from others is void on principle, as it tends to throw more land into mortmain.^ But if it has not this effect, as, for instance, if it is to improve buildings al- ready owned by a charity, the gift ig good.* Uses are not deemed executed in America, if the purpose of the devise requires that the devisee for uses should have the legal estate.* In that case the devise was in fee to seven persons, by name and unin- corporated, for the benefit of a Freemasons' Lodge. The devise was held valid, yet, it seems in point of princi- ple to be void, on the grounds of uncertainty and re- moteness, as it is not really a charitable use. Unless the bequest is expressly of pure personalty,^ marshalling is not allowed in favor of charities. It is submitted that this rule has been strained too far, since a legacy not confined exclusively to personalty may be defeated if the general residue consists of only realty. If a gift consisting of realty and personalty, is made partly for charitable and partly for other uses, the char- ity, indeed, has no equity to improve the illegal intention of the testa,tor. But, where he has not been guilty of any confusion of legal rights or boundaries, it is unreasonable to exclude a fair charitable bequest from the ordinary principles of marshalling. That doc- trine applies to all interests primarily. If it has not been extended to certain partially void dispositions, this has been owing to the contemplated evasion of the law ' Jolmson 1). Swan, 8 Madd. 457. ' Attorney-Greneral ». Davies, 9 Ves. 583. ' Harris v. Barnes, Amb. 651. * Van der Volgen ®. Yates, 3 Barb. Ch. 243. ° Attomey-Q-eneral v. Lord Montmorris, 1 Dick. 879. VAEI0U8 VOID GIFTS. 399 by the testator. To exclude charities as such, and eo nomine, from all benefit of marshalling, has no founda- tion in any principle known to equity,^ In these cases the debts and legacies were paid rateably out of the realty and personalty, and were not wholly thrown on the personalty. A charity charged on realty as an auxiliary fund for the personalty, will be valid as far as the latter fund reaches.^ The act 9 Geo. 11, however, it is to be re- memembered, is construed strictly against charities, which are, under its provisions, even less favored than aliens, for these can get money arising from the sale of land, and can have assets marshalled for them. See Eobinson v. London Hospital,* as to the manner of ap- portioning a mixed residue between charitable and other uses. Where lands have been long enjoyed by a charity, under a void will, it wUl be presumed that they had originally some other title also to the land.* The court first considers the intention of the tes- tator, as declared by the primary meaning of the terms used by him. If this intention violates the mortmain law, the court wiU hold the will to be so far void, and will not seek to effectuate it by giving the terms used a secondary sense.* § 6. Various void gifts. The proceeds of realty impressed with a trust for conversion may be given to an alien,® so may legacies raised out of land.'' A title to land already acquired ' See Wilson «. Thomas, 3 My. &i Ke. 579 ;. Howse v. Chapman, 4 Ves. 543. ^ 1 Jarm. 210. " 10 Hare, 19. * Attorney-General v. Moore, 30 Bear. 119. ' Tatham v. Drummoad, 10 Jut, N. S. 1087. ' Fondrin b. Gowdey, 3 My. & E. 383. ' Ih. 400 VOID TESTAMENTAET GIFTS. by purchase, but not by descent, is confirmed by natural- ization,^ unless tbe alien have conveyed it to a third party, in which case his conveyance is void by the law of England, though probably such conveyance would be deemed valid in America. A wUl which contained a gift to one of the attesting witnesses was void under the statute of frauds which required that a wUl of land should be attested by three credible witnesses. But the statute 25 Geo. 11, c. 6, avoids the gift only, unless it be to a creditor, and con- firms the rest of the will. This statute is in force in several of the States.^ It applies only to direct and im- mediate gifts, not to consequential ones, such as the curtesy of a fee given in the will to the witness's wife.* The statute also does not apply to personalty nor to limitations to bare trustees or executors. The laws of the different States vary on this point. The 1 Vict. c. 26, extends the disability of an attesting witness to the husband or wife of such witness and ap- plies to wills of personalty as well as of realty. The act also allows an attesting witness to be executor, since such is, by 1 W. IV, c. 40, a trustee of any undis- posed-of residue for the next of kin. The executor is in all the States a trustee for the next of Mn.* A devise to the testator's heir is inoperative unless the quantity or quality of the gift is different from what the inheritance would be.^ A different rule pre- vails in England. A limitation to the heir of the testa- tor now gives him there an estate by purchase to some extent. • People «. Conilin, 2 Hill, 67. " Taylor v. Taylor, 1 Richardson, 531. ' ' Hatfield e. Thoi-p, 5 B. & Aid. 589. ' Wilson ». Wilson, 3 Binn. 567. ' Parsons i>. Winslow, 6 Mass. 178. CHAEITABLE USES. 401 § 7. Cha/ritahle uses. As gifts to a corporation are never void for uncer- tainty or remoteness, so a like rule applies to charitable uses. Lord Hardwicke, in Jones v. Williams/ defines a charitable use as " a gift to a general public • use which extends to the poor as well as the rich." A charitable use may perhaps be defined as an appropriation of prop- erty for purposes of public benefit. The education of the sons of gentlemen is a charitable use.^ The doctrine of charitable uses does not rest wholly on the statute of 43 Eliz. c. 4, but is founded on the common law.^ The proper tribunal for administering charitable uses, where there is no trustee appointed by the grantor, is the common law side of the Court of Chancery. The people of America possess all the common law prerogatives of the sovereign of England ; and the com- mon law JTirisdiction of the chancellor, as the deputy of the sovereign under the sign manual, vests in the courts of each State.* The American courts, therefore, can ex- ecute charitable uses, if they are not superstitious, no matter whether the statute of Elizabeth is in force in the State or not, because charitable trusts were, executed by the chancellor at common law prior to the statute.^ Neither the common law, however, nor the statute, as regards charities, is considered to prevail in Maryland or Virginia.® Restrictions against perpetuities do not apply to charitable uses.'^ Therefore, objections on the ground of remoteness and uncertainty are often obviated by " Amb. 651. ' See Price v. Maxwell, 38 Penn, 33. ' See Burbank v. "Whitney, 34 Pick. 146. ' Griffin D. Graham, 1 Hawks. 96. '■ Beall V. Fox, 4 Ga. 404. • See, however, Beatty v. Kinty, 2 Pet, (8. C.) 566. ' ShotweU V. Mott, 3 Sandf. Ch. 46. 402 VOID TESTAMENTAKY GIFTS. construing a trust a charitaUe one. If sucli a con- struction can be adopted, the gift will be free from tlie taint of uncertainty- or perpetuity. Under the statute 43 Elizabeth, c. 4, notwithstand- ing the mortmain acts, a testamentary appointment is good to a corporation for charitable uses. So is a devise by a tenant in tail.^ Devises to charitable uses are valid in America,* except that in Pennsylvania the will must have been made a month before the testator's decease.* The statute 43 Eliz. c. 4, is in force in North Caro- lina and Kentucky, but the uses must be specified, as the courts in these States will not execute charitable uses cy pres} The statute also prevails in Massachu- setts and Pennsylvania. Perhaps the reason why the American courts will not execute these uses cy pres is the opinion (now exploded), that chancery had no com- mon law jurisdiction in such matters. The statute was not re-enacted in any of the States. It is not in force in Maryland. It was Repealed in Vir- ginia and New York. As to the original jurisdiction of chancery in cases of charitable uses, independently o statutes, see Vidal v. Mayor of Philadelphia.* The statute 43 Eliz. c. 4, contains a copipus enumera- tion of charitable uses. But any public benefit — ^irre- spective of sects — is a good charitable use.* A charity to found a school for gentlemen's sons''^ ' Flood's case, Hob. 136. •' Gass V. Wilhite, 3 Dana, 170, 175. = See Price v. Maxwell, 38 Penn. St. 23. ^ McAuley v. Wilson, 1 Dev. (N. C.) Ch. 376. ' 3 How. U. S. 138. " Franklin v. Armfield, 3 Sneed (Tenn.), 305 ; Cresson's Appeal, 30 Penn. St. 437 ; The American Asylum v. The Phoeniy BanTc, 4 Conn. 173 ; Price V. Maxwell, 38 Penn. St. 35 ; Gerard Will Case, 3. 54 -, Cogglestall «. Pelton, 7 Johns. Ch. 393. ' Atty.-G. ». Eari of Londsdale; 1 Sim. 109. CHARITABLE USES. 403 woTild in America prol»al)ly be deemed a public jfree school, cy pres} A gift to Shakers or even Odd Fellows is not, yet a gift to Freemasons^ is, a charitable use. ' These ^ societies, therefore, whether incorporated or not, can take such a gift. A like rule applies to religious and. educational bodies. Gifts to such societies are charitable uses.* In Delaware, a gift of money arising from land to the trustees of a church, for the education of its poor, is void.* In Yirginia, where the statute of Elizabeth is not in force, a direction that executors should distribute $2,000 among needy and respectable widows, and pay $1,000 towards the support of a Roman Catholic chapel in a certain place, was held to be too vague.' A like decision was arrived at where the bequest was " to the Baptist Association that for ordinary purposes meets at Philadelphia annually, to be a perpetual fund for the education of youths of the Baptist denomination," 12 Eng. Jur. Rep. 1848, p. 197. ' Attorney-Gen. v. Lord Mountmorris, 1 Dick. 879. ' See 2 Redfield on Wills, 513. CHA.E1TABLB USES. 405. weak-minded testator to give at his death what he would not himself part with during his life. He should not thus be allowed to cheat the reasonable expecta- tions of his relatives. " Charity begins at home." But testators might, indeed, be allowed to devote to charit- able uses, or rather to a love of notoriety, one-half of their real and personal means at death, or the whole during their lives, if they please. In New York, how- ever, real estate cannot be devoted to charitable uses. The act 43 Elizabeth^ contains an exception as to Scotland, and does not operate in Ireland. The cases under it, however, are important in many respects even there, since the Court of Chancery has a common law jurisdiction in respect to charities in all countries subject to the common law. Bequests or gifts of personalty to charitable uses are very favorably construed, and will be executed as nearly as possible in conformity with the main inten- tions of the testator, even if his special object be un- attainable.^ Therefore, a gift to such charitable uses as A. shall appoint will be executed by the court, in de- fault of appointment by A. So, if the testator refers to indefinite objects, or to ones which fail.^ A charit- able trust, therefore, as such, is never void for uncer- tainty, and if there are two or more charities answering the description, the fund- will be divided amongst them.* In some of the States, however, charitable uses will not be executed cy pres. Consequently, if the first object ' Chap. 4. " 1 Jarm. 316 ; see Boyle on the Law of Charities, b. 3, c. 3, p. 147, et aeq. ; Oilman v, Hamilton, 16 Illinois, 335 ; The Domestic and Foreign Mis- sionary Society's Appeal, 30 Penn. St. 435, 434. . ' Moggridge «. Shackwell, 1 Ves., Jun. 464 ; Mills v. Farmer, 1 Mer. 55. * Waller v. Childs, Amb. 534, 406 VOIB TpsTAMENTAET GIFTS. fails, there is a resulting trust to tlie testator's repre- sentatives. Under the New York statute^ limiting bequests to charitable societies to one-half of the testa- tor's estate, a bequest in excess of the authorized amount is still valid pro tanto, and there is an intestacy as to the remainder.^ E,ven in England, a bequest to pay off a mortgage debt on a meeting-house has been held invalid.^ This case, however, is obviously, in principle, inconsistent with that of Harris v. Barnes,* A legacy is void if founded or .conditioned upon an illegal grant or act, or if derived from the residue of an illegal appropriation.® The accessory follows the prin- cipal. Therefore, a gift to the occupiers of certain alms-houses intended to be established by the testator contrary to law, is as voi^d as the gift of the houses.® On the other hand, the primary gift may be good, and the secondary one alone be invalid.''^ Although charitable uses are never void for uncer- tainty or perpetuity in England, and never for per- petuity, and but very rarely for uncertainty, in America,® they may, of course, be void for uncertainty if they are not exclusively charitable trusts, but are mixed up with other uses in such a way as to be undis- tinguishable therefrom, and the trustees die without exercising their discretion. The want of trustees to execute charities is no ground for weakening the uses, except in those States which hold that the equitable ' N. Y. Laws, 1860, ch.. 360. = Leary's Estate, 1 Tuck. (N. Y. Surr.) 233. ' Corbyn v. French, 4 Ves. 418. ■* Amb. 651. ° Att'y-Gen. v. Davies, 9 Ves. 535. " Att'y-Qen. ■». Goulding, 3 Bro. C. C. 438. ' Blandford v. Thackerell, 4 Bro. C. C. 894. ' Williams ii. Williams, 4 Seld. 535 ; 3, Story Eq. Jur. § 1158. CHARITABLE USES. 407 jurisdiction is entirely founded on the statute of Elizabeth.! Although no provision regarding contracts, in the United States constitution or elsewhere, seems appli- cable to gratuitous gifts to corporations, yet, in the case of Dartmouth College v. Woodward,^ the con- trary was held to be the law as regards the special provisions in the United States constitution respecting contracts. A use, though void originally, becomes valid by lapse of time and user. A presumption arises from long user that the invalidity was authorized by special statute, even though there be no record of such enact- ment. This presumption, however, can only exist where the invalidity springs from the. common law, and not from an express, old, but not obsolete, statute.* Length of time, however, is no bar to a charitable use, unless the funds are meantime applied^ to another char- itable purpose, and not to the benefit of private individuals. A gift for such objects of benevolence and charity as the legatee may, select is too indefinite to be executed by the court.* Such descriptions of gift are considered to be not merely charitable uses, since they could be applied by . the donee to other pur- poses.® Even " private " charity is not a public chari- table use.® However, at the present day, it is probable that all such dispositions would be regarded as within ' See Owens ». Missionary Soc. of M. E. Church, 4 Kem. 380 ; Bartlett V. Nye, 4 Met. 378. •' 4 Wheaton, 518. " See Sbelford's Real Prop. Acts, tit. Prescription. * Morice v. Bishop of Durham, 9 Ves. 408 ; 10 Ves. 533. ° Doe d. Toone v. Copestate, 6 East, 338 ; Vezey ■». Jamson, 1 Sim. & Stu. 69. ° Ommaney v. Butcher, Turn. & R. 360. ' 403 VOID TBSTAMENTABT GIET8. the meaning of the statute of Elizabeth, or else would be executed at common law. Yet, a bequest for the erection of monuments to the memory of a large class of persons was held, in Gilmer v. Gilmer,^ to be void on account of the alleged impossibility- of carrying out such a direction. A legacy, however, to the poor of a parish is a good charitable use for those of the parish not receiving ialms. S&mble the criteria of a charitable use are that it is benev- olent, public, and not of a private' nature.^ Therefore, if trustees have an option to apply or not the whole of the fund to charitable purposes, it is not the case of a charitable use.* If the object of a charitable use becomes extinct in the testator's lifetime, the interest will go to the next of kin.* The statute of Elizabeth was construed liberal- ly in respect to charities by the ecclesiastical tribunals." The mortmain act left the courts, however, no loop-- hole for liberality or evasion. The question whether a bequest is for a charitable use or not is important in some States in respect to proceed- ure. Besides, though the gift violate no rule of law, yet, if the intended beneficiaries are indefinite, the be- quest will be void, except as a charitable use. Wh.ere a gift is for a public purpose that is not equivalent to " a charitable use," and is void as indefinite, it then lapses for the benefit of the testator's representatives.* If the smn to be applied to charitable uses cannot , ' 43 Ala. 9. " Attorney-General v. Clarke, Amb. 433. ' Kendall v. Granger, 5 Beay. 300. ^ Langford «. Gowiard, 9 Jur. N. S. 13. " See Redfleld on Wills, Vol. II, 506. ° 3 Story Eq.- Jiir. § J.156 ; Trustees Baptist Association v. Hart, 4 Wheat. 1, 33, 89, 43-45; Owens v. The Missionary Society of the M. E. Church, 4 Kern. (N. T.) 380; Price -o. Maxwell, 38 Eenn. St 23. CHABITABLE USES. 409 be ascertained, owing to the failure of other trusts, wMch were first to be discharged out of the common fund, equity will not execute the charitable use.^ But preceding definite trusts will not be suffered -to absorb the whole fund.^ A gift of a surplus after a void , bequest to a charit- able use was held void in Beekman v. People.^ This case, indeed, is hardly so far consistent with the equitable rule which executes valid trusts, if separable from invalid ones. Here the sum necessary for the void purpose could be easily computed, and the remainder could be then given to the objects of the testator's bounty. The American courts, certainly, seem, on the whole, not to construe charitable uses as favorably as the English courts.* If the testator leaves a blank for the charitable uses, the English court will execute the gift cy pres, but not if the sum is not mentioned.®* If the testator had evidently one sole and peculiar charitable object in view, the court will not apply its cypres doctrine, but will hold that a lapse or failure of the particular object has taken place.* A cy pres construction, however, is rarely adopted in America in respect to charities.'^ A cy pres execution of charitable trusts will not be granted in New York ; * nor in -North Carolina ; ® nor in Alabama.^" ' 1 Jarm. 196. = Admam v. Cole, 6 Beav. 353. ^ 37 Barb. 260. * Phelps, Exor. p. Phelps, 38 Barb. 131. ' Hartshome v. Nicholson, 36 Beav. 58i » Russell 9. Kellett, 3 Sm. & Gif. 364. ' See Baptist Association v. Hart, 4 Wheat. 1 ; s. c. 8 Peters. 484 ; Going V. Emery, 16 Pick. 107 ; Winslow v. Cummings, 3 CUsh. 358 ; 3 Stoiy Eq. Jur. § 1163; 4th Kent. 5 ed. 508, note. ' Andrew v. New York Bible and Prayer Book Society, 4 Sandf. Sup. Ct. 156. " McAuley v. Wilson, 1 Bat. & Dev. Eq. 376 ; Holland a. Peck, 3 Ired. Eq. 355. " Carter, «. Balfour, 19 Alabama, 814. 410 VOID TESTAMENTAEY GIFTS. At all events, a cy pres application of charitaUe. gifts does not prevail to tlie same extent in America as in England. But there is a resulting trust to the heir or next of kin of the testator on failure of his primary- scheme.^ However, it seems an exaggeration to hold that a cy pres application is neVer resorted to here.* In some of the States, indeed, which profess to execute charitable uses, such gifts of a very ordinary kind have been held void for uncertainty, as if any gift to a char- itable use could be definite as to its objects.^ But, the American courts will apply cy pres rules in effectua- ting the especial design of the testator, though not in diverting his charity to other objects than those specified . in the will.* § 8. Religious uses. Bequests for superstitious uses generally are void at common law and in America,^ and if there is no general purpose of a legal natui-e indicated, the bequest will not be executed cy pres, even in England. In America, cy pres execution is not attempted in any case as regards a diversion of the fund in question to other uses than those specified in the will.^ By force of 23 Hen. VII, c. 10, and' 1 Edw. VI, c. 14, lands devised for certain superstitious uses were forfeited to the crown. The uses referred to in these statutes were the pray- ing for deceased persons, the maintenance of perpetual obits, lamps, ^ic? Judge Kedfield ^ considers that other superstitious uses than those specified in the statutes ' McAuley e. Wilson, 1 Dev. Eq. 876. '■' Gass V. Wilhite, 3 Dana, 170. ' White «. risk, 33 Conn. 31. * Oilman v. Hamilton, 16 111. 235. ■■ 3 Eedfield on Wills, 495. • See Gass ». Wilhite, 3 Dana, 170. ' Porter's case, 1 Co. 33. » Vol. H, 495. EELIGIOUS USES. 411 were not there'by invalidated,^ Ibut that they are void on grounds of puUic policy, toth in England and America. They were not void at common law, how- ever, if in accordance with the doctrines of the Roman Catholic Church, and, therefore, such uses now can only be deemed invalid as coming within the English statutes against superstitious uses. These do hot apply to charitaMe uses. Superstitious devises lapse^ to the crown in England. If the gift- be really superstitious, but not within the letter of those statutes, the devise or bequest is still void, but the heir or representatives (and not the crown), take the gift.'* A gift to a dissent- ing chapel is not superstitious.* A bequest to enable Jews to observe their rites is valid,* but to propagate their doctrines is illegal.® These cases, however, are mutually contradictory. A devise, in America, for the maintenance of a Cath- olic priest, if construed to be in ease of the congregation, will be valid.® A devise for the promotion of Chris- tianity is valid in Massachusetts.^ A bequest for a like purpose in trust for the American Board of Commis- sioners for foreign Missions is also valid.^ Numerous bequests to Bible societies have been held to be valid throughout the Union, and in Vermont a religious be- quest will be upheld, even though the donees are not incorporated and the gifts are indefinite.'^ In Pennsyl- ' See Gary v. Abbcft, 7 Ves. 490, 495. ' See Shelford Ch. Uses, 89. » Att'y-Gen. ». Pearson, 3 Mer. 353; West v. Shuttleworth, 3 My. & K. 684. ' Straiis v. Goldsmid, 8 Sim. 614. ' De Costa «. De Pas, Amb. 338. ' McQ-iun D. Aaron, 1 Penn. 49 ; see Brewers v. Forman, Addis, 363 ; Trustees of Bishops' Fund v. Eagle Bank, 7 Conn. 476. ' Goings. Emery, 16 Pick. 107; see Winslow v. Cummings, 3 Cush. 358; Brown u. Kelsey, 3 Cush. 343; Wells v. Doane, 3 Gray, 301. ' Bartlett v. King, 13 Mass. 537. ' Burr ». Smith, 7 Vt. 341 ; Button v. Am. Tract Soc. 33 Vt. 336. 412 VOID TESTAMENTARY GIFTS. vania, a devise to a school in whicli only sectarian doc- trines are inculcated is valid,^ and a devise in the same State, for religious purposes, to an association not incor- porated at the time of testator's death, but since incor- porated, is valid.^ In Gary v. Abbot,^ it was held that a bequest for educating and bringing up poor children in the Eoman Catholic faith was void. Judge Redfield* considers that such a bequest would be valid in America, if there was no local statute to the contrary .'^ The Judge, too, thinks that such a trust as that in Gary v. Abbot would be now executed cy pres in England, in favor of some other charitable object. But it is doubtful whether chancery ever executes an illegal trust cy pres, though it will so carry out a special or an indefinite trust of a charitable nature. The authorities that appear to incline to the contrary doctrine had special circumstances which seemed to involve a cy pres execution of the trusts, or else were not superstitious within the meaning of the statutes.* A devise to the trustees of Brookhaven, a corporate body capable of holding land, in trust to pay the rents and profits to the minister or other ruling officer of a Baptist church which had no incorporation, was held void at law in Jackson v. Hammond.'^ But a bequest to an unincoi'porated female society in another State, for charitable uses, is valid.^ In South Carolina, a testator gave to an unincorporated " Methodist Church at A., and the preachers of said church, and the Pedee Mis- ' Price V. Maxwell, 28 Perm. St. 23. " Zimmerman ®. Andrews, 6 Watts & S. 318. = 7 Ves. 490, 495 ; but see 3 & 3 W. 4, c. 115, § 1. " Vol. IT' 495. ' Philadelphia v. Elliott, 3 Eawle, 170 ; Babb ». Reed, 5 Rawle, 151. «,2 Story Eq. Jur. § 1168; Moggridge i;. Thackwell, 7 Ves. 36 ; MiUs v. Farmer, 1 Mer. 55, 100. ' 3 Gaines's Gas. Err. 357. " Washburn v. Sewall, 9 Met. 280; Bartlett v. Nye, 4 Ih. 378. EBMGIOUS USES. 413 sion, $8,000, to be put at interest forever, and the inter- est to be distributed by said trustees according to the several necessities of said church, preachers and mis- sion." The bequest was held valid.^ In Kentucky, owing to its constitution, no religious or other use is void as superstitious.* Catholics are now, in England, on the same legal footing as dissenters, by 2 and 3 W. IV, c. 115, § 1. A bequest for the propagation of Catholic doctrine is, therefore, now valid in that country.^ But Jarman thinks* a gift for masses for the repose of a soul would be void.® The distinction cited is as refined as that drawn between the two Jewish cases cited by Jarman.® But it is law. Bequests to Baptists, Jews, Unitarians, Irvingites and other dissenters are valid, even in England. The 2 and 3 Will. IV, c, 115, legalizes bequests for masses for deceased persons in Ireland,'' but not in England.^ Bequests for uses against the spirit of the constitu- tion are invalid.* As to superstitious uses in America, see, further, G-ass v. Wilhite.^" In the case Of Vander Volgen v. Yates,^^ it was held that a conveyance of land to trustees in trust for the members of a Freemasons' lodge, vested the legal title in the trustees, in trust for the members of the lodge, and that on failure of heirs of the trustees, the court would still execute the trust. It was also held ' Gibson v. McCall, 1 Eich. 174 ; see Witman v. Lex, 17 Serg. & R 88. » G-ass «. WilMte, 2 Dana, 170. • Bradshaw ». Tasker, 3 My. & Keen. 321. • Vol. I, 191. ' See West ». Shuttle-worth, 3 My. & Kee. 684. • De Costa «. De Pas, Ambl. 328 ; and Straus ®. Goldsmid, 8 Sim. 614. ' Bead v. Hodgens, 7 Ir. Eq. 17. » West ®. Shuttle-worth, 2 M. & K. 684 ; Blundell, in re, 30 Beay. 360. » Themmines v, De Bouneval, 5 Russ. 288, v " 3 Dana, 170. " 3 Barb. 343. 414 VOID TESTAMENTARY GIETS. that the statute of uses executed only those uses that entailed no special confidence in the trustees. Judge Eedfield observes very justly that, owing to the American constitution, the doctrine of superstitious uses should be very strictly construed. Indeed, there is every reason for holding that, by the constitution, all the English statutes relating to religion are abrogated here, and' each case is made to rest on its own moral merits, or, rather, on its not being absolutely inconsist- ent with social order. Its opposition to the creed of the majority is unimportant, since there is no established church in any of the States. § 9. Immm^al gifts. Few bequests are found void for immorality. Scarcely any one is found so depraved as, in his will, to blaspheme the name or violate the law of God. Some, indeed, have "cursed God and died" immediately after- wards. But even the few whose names thus figure on the roll of folly were in the paroxysm of the last agony, when their minds doubtless were unsettled at the near prospect of eternity. Few, if any, of the descendants of Adam are so foolhardy as to draw up deliberately a will in which, for purposes of immorality, they dispose of property to objects not authorized by law. Where a testator gave a fund to his daughter M., for life, and after her decease to all her children begot- ten or to be begotten, only the illegitimate children born before the testator's death took any interest.^ Ille- gitimate children will not take as "children," even where there is a statute enabling them to inherit.* The decision referred to appears to be sound, inasmuch as a ■ Law Eep. 7 Eq. 170. ^ Thompson «. Macdonald, 2 Dev. & Bat. Eq,-463 ; see Shearman ». Angel, Bail. Eq. 351. EELATIONS OF CBKTAIN aiFTS. 415 law of inheritance does not apply to wills. After-born children of a deceased wife's sister cannot take in Eng- land under the will of their mother, no matter how ac- curately they may be described in it.^ The law of Lou- isiana will not uphold any provision for illegitimate children, except it be confined to maintenance? A bequest in violation of neutral or belligerent rights, or of any other rule of international law, is void.* § 10. delations of certain primary, to ulterior, gifts. Where an executory gift is in defeasance of a prior gift, and the latter fails from the outset, or by lapse, the ulterior interest, nevertheless, will take effect.* So, a limitation over, in the event of the first donee having only one child, operates though he has no child.^ Likewise, if the prior donee disclaims or neglects to perform some prescribed act, the ulterior gift, neverthe- , less, takes effect.® But, if the event which defeats the first estate and confers the second is capable of happening in the testa- tor's lifetime, and if the events which happen would give an absolute interest to the first devisee if he sur- vived the testator, the lapse of his interest affects the ulterior gift also,'' In 6ther words, lapse never aids an ul- terior gift contingent upon other events than lapse. The rule in Calthorpe v. Gough applies where the first gift is to a clasp. But if the members are not to be ascertained until the decease of the testator, there can be no lapse, but only the non-fulfilment of a contingency.^ ' Howarth «. Mills, 13 Jur. N. S. 794; s. c. Law Rep. 3 Eq. 389. ' Bennett v. Cave, 18 La. Ann. 590. ' Haberston v. Vardon, 7 Eng. L. & Eq. 338. ' Andrews v. Fullham, 3 Sfcra. 1893. ° Murray v. Jones, 3 Ves. & B. 313. . ° Avelyn v. Ward, 1 Ves. Sen. 430. ' Calthorpe ®. Gough, Cit. 3 B. 0. 0. 395. ? See 3 Jarm. 709. 416 VOID TESTAMENTARY GIFTS. As to the rule itself, it seems very rational. It would be a very technical construction which would give to a donee a benefit in the very event in which the testator intended he should not take. As regards the ulterior devise, the lapsed gift is an absolute one, so far as that it cannot be expunged from the will, but, though ineffectual itself, in the event, yet it properly operates by construction to defeat the ulterior gift. In all cases, the valid parts of a will, if separable from the void parts, .will be upheld.^ As to the converse case of a lapse of the ulterior gift, it operates for the benefit of the heir or residuary devisee, according to the local law of the State.* But, if the executory devise fails not by lapse, but by the non-occurrence of the contingency on which it was limited, the first devisee receives the benefit of this failure of the executory devise. The failure is one of fact, so to speak, not of law, or lapse, as in the case first put. This distinction is supported by authority.' § 11. Lapse. Lapse is theTailure of a testamentary gift by reason of the donee predeceasing the testator. A lapse is not precluded by giving the donee . an absolute interest in personalty or a fee in realty. The representative of the donee, in case of a lapse, takes no interest. Even a bequest to A. and his- executors or administrators will in England give the latter nothing, even though A. be dead,* and the limitation to the executor seems to imply ' Post D. Hover, 30 Barb. 3t2 ; 17 N. T. 561 ; 32 Wend. 483 ; 34 Id. 641; 7 Paige, 621 ; Bean ®. Hockman, 81 Barb. 78; Hull». Hull, 34 N. T. 647. ° See mipra, p. 346. ' Jackson v. Noble, 2 Keen, 590 ; see 3 Jarm. 711 ; Tarbuck ®. Tarbuck, cited 2 Jarm. 375. ' Ma'ybank ?;. Brooks, 1 Bro. C. C. 84. LAPSE. 417 that tlie testator was providing for the contingency of a lapse, since otherwise the use of the additional words would be unnecessary. However, even though the tes- tator expressly negative the legal event of a lapse, it will nevertheless occur, unless there is a linaitation ex- pressly over to a third party or to the executors of the donee. These last two rules would doubtless be ignored in most, if not all, of the United States. The doctrines in question are wholly irrational. It is strange that while the courts studiously endeavor, as a rule, to prevent a testamentary gift from faijing, they, on this particular question of lapse, act contrary to their general benefi- cent tendencies. In Wisner v. Barnet,^ a testator bequeathed a certain fund to his executrix, to be paid to three persons whom he should thereafter name. He died without naming any. It was held that there was an intestacy as to the fund, which went accordingly to the persons entitled under the statute of distribution. Where donees .take as joint tenants, no lapse can occur, unless the whole class becomes extinct during the life of the testator;^ aliter, if they take as tenants in common.® The legal presumption is that donees take as joint tenants. But, this presumption is easily nega- tived in a will. The clause " equally to be divided," for instance, in such an instrument operates to create a tenancy in common, though at common law it has not this effect. The feudal doctrines were adapted to pre- vent the inefficacy or contingency of a gift. Hence arose the rule in Shelley's case, and the presumption in favor of joint tenancy — doctrines which chancery follows only when the context contains nothing to guide its choice. ' 4 W. C. C. 631. " Buffar v. Bradford, 3 Atk. 330. ' Page «. Page, 3 P. W. 489. • 418 VOID TESTAMENTAET GIFTS, If the gift is to a class, even as tenants in common, yet, if the memlsers of the class are not to be reckoned until a future date, those dying before that period take no interest, and occasion no lapse.-' But if they are severally named,* the case will be different.* K the fature event happens in the testator's lifetime, any of the tenants in common, members of the class, dying after the contingent .event, and before the testator's death, suffer a lapse of "their shares,* though Jarman ® questions the soundness of this rule. Lapse may befall the equitable or the legal interest only.® The question, therefore, was never open to the vexed dispute concerning the sdnUlla jv/ris / all testa- mentary gifts, being so far equitable in their nature as, in the primary instance,. not to depend upon any doc- trine of tenure. In conveyancing inter vwos, however, although there never was any ground for questioning the validity of any use which would have been good as a remainder in a direct conveyance, without the interven. tion of trustees, yet it certainly required a statutory exposition or enactment to hold that the common law line of trustees might become extinct without affecting the rise of the future uses for which the trustees were appointed. Charges on the interest given a beneficiary do not become extinguished on the lapse of his interest The case is analogous to the lapse of the legal estate only, which does not affect the equitable limitation. ' Jarm. Vol. 1, 395 ; Doe d. Stewart «. Sheffield, 13 East, 526 ; Anderson ■B. Parsons, 4 Greenl. 486. ' Knight ». Gould, 2 My. & K. 395. " Barber v. Barber, 3 My. & Cr. 688. • Allen V. Callow, 3 Ves. 389. ' Vol. II, 397. ' Doe d. Shelley v. Bdlin, 4 Ad. & Ell. 582. ' Croft«.Slee, 4Ves. 60. liAPSE. 419 But charges on a devise wlien lapsed usually inure to tlie benefit of the devisee. The difficulty in some cases is to determine whether the heir should not be entitled to the charge as the produce of undisposed-of realty ; in other words, whether the charge is an excep- tion from the gift, in which case its lapse would inure for the benefit of the heir. This usually happens in the case of void chargies.^ A legacy chaxged on real estate fails for the benefit of the heir or devisee, if .the legatee die before the time of payment, and the postponement of payment was not through a desire on the part of the testator, as indicated in the wiU, of accommodating the heir or devisee.^ The opinion of that most philqpophic judge, Lord Eldon,* inclines in favor of the heir, except where there is an intention totally to disinherit him. This doctrine seems sound. For, equity, though it does not regard rules of tenure favorably, yet, it favors the heir, and gives him, and Tiot a residuary legatee, the produce of a void charge,* except where statute law provides to the contrary.® As the residuary devisee, however, seems to have a stronger claim than a particular devisee to the benefit of a lapsed charge, the doctrine ,in Cruise v. Barley,® appears to apply a fortiori to lapsed charges on particular gifts, and to divert them from the particu- lar devisee to the heir. The provisions of 1 Vict. c. 26, § 25, and of similar statutes in the United States, making lapsed and void devises fall into the residue, apply only to cases of lapse, not to contingent charges, that never become vested. ' Arnold v. Chapman, 1 Tes. Sen. 108. ' See Lyman «. Vanderspiegel, 1 Aikens, Vt. 27-5, 380. ' 19 Ves. 363. . * Cruise v. Barley, 3 P; W. 30. » 1 Vict. c. 86, § 35. • m sup. 420 VOID TESTAMENTARY GIFTS, The acts referred to provide against a lapse of an estate tail, or of an interest given to a child who has a child living at testator's decease. Jarman thinks^ that the 1 Vict. c. 26, does not apply to bequests to children as a •class. But the plain words of section 32 seem to imply the contrary. Children taking under such a section appear to be in by descent, not by purchase. A similar inference seems to apply to the analogous acts in the United States. According to the old rules of chancery, all gifts by will lapse, if the donees die in the lifetime of the tes- tator. But, if any of the issue of the legatee be living when the testator dies,^ there is no lapse in any of the following States ; vPennsylvania, South Carolina, Vir- ginia, Maryland, Massachusetts, Connecticut, Vermont, New Jersey, Mississippi, Maine, or Rhode Island.^ In Maryland there is the salutary law that there never is a lapse.* The provision contained in New York Revised Statutes,^ however, applies only to be- quests to children, or lineal descendants of the testator,® but the section applies to past wills, if the testator sur- vived the period of the passing of the Revised Statutes.'^ An intestacy was considered to occur in Nightin- gale V. Sheldon® under the following circumstances : — A. devised all his estate to his wife for life ; if she died before his son I. arrived of age, then to his daughter A. until I. came of age ; at that time the estate to be equally divided among his three children in fee, or to the stu-vi- vors of them if either should die without issue, and if all his children should die without issue, and neither ' Vol. I, 313. = Prince's Dig. 356. " 4 Kent, 643 ; note, 526 ; see Eedfield on Wills, Vol. II, 174. ' 4 Kent, 536. ' Vol. H, 66, § 53. " Armstrong v. Moran, 1 Bradf. 314. ' Bishop v. Bishop, 4 Hill, 138. » 5 Mas. 336. LAPSE. 421 should survive him, then to her in fee; AH the children died in the lifetime of the wife, but two of them left issue who survived her. It was held that owing to the doubt of the testator's intentions, and from the omission to provide for the event which happened, an intestacy was the result. Yet the issue appear to have taken implied estates tail by purchase under the clause, " If either of them should die without issue." The doctrine in Maybank v. Brooks,^ that a gift to A., his executors, administrators, or assigns, may lapse, has prevailed, even though the fact that the legatee was dead at the time of making the wUl was known to the testator. But, this rule would hardly be followed in America. Where there is a gift to several, not as a class or as joint tenants, but by name or as tenants in common, the gift to each is specific, and, on a lapse, falls to the heii'.* In Jackson v. ^oberts,^ it was held that there is no lapse in the United States of a gift in jo;nt tenancy or even in a tenancy in common, if given to a class. In Downing v. Marshall,* the devise was to A. for life, and to his heirs, if he dies leaving issue, but if he dies without issue, then over to the testator's nephews and nieces. Though A. died in the lifetime of the tes- tator, yet the remainder to th'e nephews and nieces did not lapse, as it was intended to be independent of the time when A. died. But where the devise was that the executors should apply the property to such charitable uses as they should think best on the death of the wife, this gift was held to lapse by the death of the wife in the testator's lifetime.® ' 1 Br. 0. C. 84 ; see 1 Roper on Legacies, 467. ' Hyatt «. Paysley, 33 Barb. 285. ' 14 Gray, 546. - 33 N. Y. 366. ' Fontain ». Ravenel, 17 How. U. S. S69. 422 VOID TESTAMENTARY GIFTS. In Green v. Dennis,^ the heir was preferred to a re- siduary devisee as to a void devise. This case, therefore, is opposed to the common notion that there is any differ- ence between lapsed and void devises as to the rights of the residuary devisee. Yet the residuary devisee attracted a contingent interest which failed in Hayden v. Stough- ton.^ The law, therefore, on this point varies in the different States, and perhaps is not yet quite settled in any. Lapsed legacies fall into the residue. Lapsed devises do not, because they are specific — they fall to the heir,- In those States where all wills speak only from the death of the testator, it is doubtful whether the old doctrine of lapse will be still applied or not. Every devise of land, however, is specific, so that the old rule would still seem to apply, especially as land is only a secondary fand to the general creditors. This appears to be the opinion in England, though not in the United States.* Construction has given to residuary devises, in some States, the effect of including lapsed and void devises.* But, in most States, if several devisees take not as joint tenants, but as tenants in common, a lapse of the share of any of them predeceasing the testator occurs for the benefit of the heir. The lapse of a particular interest, however, does not affect ulterior limitations.® If A. bequeaths his property according to the uses of B.'s will, and B.'s devisees die after the death of B., but before the death of A., there is a lapse.^ This decision, ' 1 Conn. 393 ; see Tongue «. Nutwell, 13 Md. 415 ; see Van Kleeck v. Eefd. Dutch Ch. 6 Paige, 600. '' 5 Pick. 528. " Prescott v. Prescott, 7 Met. 146 ; see Van Kleeck ». Dutch Church, 20 Wend. 499 ; m/pra, c. 24, § 4. * Graighead v. Given, 10 Serg. & R. 351. " West «. Williams, 15 Ark. 682. ' Colsha «. Cheese, 7 Hare, 286. LAPSE. 423 however, seems to be contrary to principle. For as B.'s will is incorporated by reference in A.'s, tlie will of A. speaks expressly not from its date nor from A.'s death, but according to the context of B.'s will and its date of operation, which is' the date of B.'s death. The prin- ciple, indeed, of the decision in Maybank v. Brooks,^ tends to support the ruling in Colsha v. Cheese. A testator is not presumed to provide for a case of lapse, in the absence of any express or implied statement to this effect. Accordingly, a mere legacy to a debtor of the amount of the debt, may lapse, and is not a remission of the debt. But it cancels the debt, whether the creditor survives the testator or not,"* if the;re are words used not only of bequeathing or giving, but of forgiving or remitting.* The intention relates then to a present, not a future favor, although revocable in either case. K the testator directs his executor to deliver up the security, the legacy will not be subject to lapse.* A general provision for creditors seems in- tended expressly not to lapse." Where prope^^ty is given to A. if he survive testator, and both are drowned together at sea, the next of kin of the testator, and not of A., will take, if they fail to adduce any evidence of A.'s survivorship," as the burden of the -proof of sur- vivorship is on them. In France, the presumption of survivorship in such cases is regulated by express enact- ment. Although, if a person named devisee is dead at • the time of making the will, this, as a rule, causes a ' 1 Br. c. c. 84. " Sibthorp v, Moxton, 1 Yes. Sen. 49 ; Soutli v. Williams, 13 Sim, 506 ; see Roper on Legacies, 470-7. " Elliott V. Davenport, 1 P. Wms. 83. * Sibthorp «. Moxton, 1 Ves. Sen. 49. " Philips V. Phillips, 3 Hare, 281. « Underwood v. Wing, 19 Beav. 459. 424 VOID TESTAMBNTAET GIPTS. lapse ; yet, if the devise is to one or his heirs, or even to one and. his heirs, the word heirs may, on the con- text, be held to be substitutional.^ However, if standing alone, it will be deemed merely a word of limitation,* » On the lapse of a devise for life, anf, remainder or exec- utory gift, if vested in interest, becomes vested jn pos- session on the testator's death.* The term lapse is sometimes used in the United States as synonymous with failure. In England, the term is confined to denote only the particular kind of failure caused by the beneficiary dying before the tes- tator. In Whitehead v. Lassiter,* under a bequest to tes- tator's widow for Ifie, remainder to the testator's children " now living," the children of a son who pre- deceased the testator were held to take. Judge Red- field^ seems to think that this was properly a case of lapse. The words now living, indeed, do not give vested estates at once to the persons so designated. As to them the will operates, according to the scriptural rule, only from the death of the testator. Yet, the de- cision referred to is an error in the right direction. The next case referred to by the judge — Bond's Ap- peal — ^would, seem to be still more open to the objec- tion put by the judge, but that the word heirs in America is readily construed as a word of purchase. Latterly, under a gift to one for life,* and after his death to his children pr his heirs, the word " or " is construed literally, so as to render the subsequent gift ' Davis V. Taul, 6 Dana, 51. ' Dickenson v. Purvis, 8 8. & R. 71. ' West V. Williams, 15 Aik. 682 ; Martha May's Appeal, 41 Penn. St. 512. * 4 Jones Eq. 79. " Vol. n, 66. ° Vanordall v. Van Derventer, 51 Barb. 137 ; 1 Denio, 168 ; 18 K T. 418. UAirsjsi. ■a^u substitutional in case of the lapse of the first.^ Such, indeed, is obviously the natural meaning of the word " or " in most limitations of the kind referred to. How- ever, the courts do not studiously strain against a con- struction which is defeated by lapse, although they favor the vesting of interests. The distinction is be- tween general rules of construction, and the moulding of these rules by the event. This is never done; Lapse, therefore, never affects construction. ' Finlason v. Tatlock, 18 W. R. 333. CHAPTER XXVII. SUGGESTIONS TO TESTAMENTARY DRAFTSMEN. Questions of construction range themselves into one of three classes, according as the difficulty relates to the words of direction, the gift, or the beneficiary. A very accurate description of the subject or object of gift is sometimes not in the power of the testator. But he never can have any adequate excuse for using a merely precatory term. Such phraseology should be carefully avoided by him. He should speak with no uncertain sound of desire or suggestion, but should use the words " will," " give," " devise," or '* bequeath," or all or several of these terms together. Unless the will is thus explicit, and the trusts plainly appear to be imperative, they may be construed, at the present day, as resting in the discretion of the trustee. At all events, a will that is doubtful in this respect is certain to be litigated in the present supposed shifting state of the authorities, both here and in England, respecting the phraseology necessary to create a precatory trust or trust-power. If th^ testator really wishes to give a trustee a discretion, there is no reason of law or pre- cedence why he should not do so. Only he should then state explicitly that the trust is discretionary, and not iipperative. An uncertainty, 'too, in the words of disposition oi* in any abstract phrase, such as " property," " effects," &c., is usually much more serious than where the inac- curacy relates to a concrete subject or object of gift; because ambiguities of the latter kind are open to SUGGE8TIOK8 TO TESTAMBNTAKY DBAFTSMEN. 427 parol evidence. But no abstract word can be thus ex- plained. The remarks I have suggested respecting the use of disposing terms are also applicable to the other two sources of difficulty — the subject and object of gift.^ No general rules can dispense with the necessity for great care and attention on the part of the draftsman ip respect to each element of the testamentary gift. He should, if possible, leave nothing in doubt. Indeed, each rule of testamentary construction or equitable -presumption merely denotes a common class of difficul- ties, which the courts can repress only by the most rigid fetters. Therefore, all doubt should be precluded as to the parcels or property, whether real or personal, which the testator intended to convey : nor should room be left for litigation upon any one of the points discussed in the preceding chapters. Where the draftsman has time to elaborate the in- strument, he should consult a treatise on wills as to the points most fruitful of litigation in the particular matters he is considering. A reference to the index or table of contents, and, at all events, a very short survey of the text of any of the leading treatises, will give him the necessary information. Greneral rules and celebrated cases are lights and buoys that are only placed near the quicksands where testamentary wrecks are most frequent. A reference to the chart of past accidents is, however, the best means of avoiding disaster in the future. The testamentary draftsman should be cautious in his use of technical terms, especially if the testator is likely to survive for any considerable time ; otherwise, any subsequent change of the will may greatly confuse the preceding limitations, and change terms of purchase into words of limitation, or conversely. ' Swpra, c. xvii, § 2. 428 SUGGESTIONS TO TESTAMENTAET DRAJ-TSMBN. The quantity of estate, aTid the nature of the donee's interest — whether it be legal or equitable, for years, life, in tail, or fee, and whether it be by purchase or limitation — should also be left free from doubt. The subject of gift, if specific, should be accu- rately indicated and carefully defined by exact descrip- tion,^ If the whole of the fund or property be given, this should, be clearly expressed.^ A reference to the deed under which land was conveyed to the testator or his ancestor is perhaps the best mode of describing an estate, as, for instance : " I devise my estate at Appleton, in as full and ample a manner as it was conveyed to me by a deed bearing date, INDEX. A, ABATEMENT of legacies on a deficiency of assets, 353. ABOLITION of estates tail by statute, 117. ABSOLUTE interest in personalty, 122. ABSOLUTE trust, when not cut down, to mean a mere request, 227. ABSOLUTELY, meaning of the word, 1.07, 218. ACCIDENT. See Mistake. cannot affect construction, 52. ACCRUED interests, what words carry, 196. " share and interest," 196. where the property is to devolve in one mass, 196. ' to the survivor of several donees, 195. not rnoulded by reference to original shares, 197. ACCRUING shares, relations of, to primary shares, 290. ACCUMULATION, trusts for, 386 et seq. remoteness of, 386. / of residue, 388. in New York, 388. ADEMPTION of specific gifts, 18, 19. how affected by the Wills acts, 19. is provable by parol evidence, .58. when not efiected, 361. See Legacy, Spkoific Devise, Specific Bequest. of legacies explained, 360. a distributive share does not work an ademption, 367. ADMINISTRATION of realty and personalty ^a?;j ^assw, 243. of personalty in cases of election, 250. ADOPTION, what is an adoption of a mortgage, 233. AFFINITY, connections by, take when, 320, 321. AFTER-ACQUIRED land passes by will, when, 21. passes by republication of will by a codicil, 5. AFTER-BORN children, as regards the rple in Wild's case, 314. 434 INDEX. " AFTER-PAYMENT of debts," effect of the phrase in charging land, 241. AGE, death under, 125. ALABAMA, conveyancing in, 116. ALIEN, rights of, to proceeds of sale of land, 399. naturalized, 399, 400. devise to, 174. will of land by, 14. of personalty by, 14. ALIENATION, a restraint against, may be imposed on a tenant for life Or years, 389. of property of married woman, 389. of leases, 389. in the various States, 390. restraint against, imposed on a tenant in fee, 391. is in priuciple illegal, 391. but is allowed in some States, 391 et seq. in mortmain, 392 'et seq. ALIEN FRIEND, testamentary rights of, 16. « ALL" construed " any," 38, 196. " ALL and every," meaning of the phrase, 290. ALTERATION of words, when allowed, 38 et seq. AMALGAMATION of estates is favored in law, 131, AMBIGUITY aided by evidence and construction, 47, 49. especially in American courts, 49. several questions in cases of, 49. AMERICAN LAW, principles of testamentary, 13, 22 et seq. relations of, to law of England, 22. to English case law, 3. exceptions thereto, 22. in the Supreme Court of the United States, 23. of parol evidence, 21, 51, 53, in cases of fraud, 54. as to the meaning of the terms " real," " personal," " land," " effects," &c., 59. meaning of terms of description in, 65 et seq. as to the rule in Shelley's case, 93, 104. as to the rule in Wild's case, 101. of entails, 116, 117. as to the construction of the phrase " dying without issue," 123, 126. "leaving no issue," 119, 124. INBEX. 435 AMERICAN" luk'W— Continued. the American statutes on these points differ from, the English, 129. of joint tenancy^ 137. of remainders, 140. is the same as that of England as to the primary liability of personalty to debts, 238. in leaning towards the vesting of interests, 256. in favoring the heir, 86. * in adopting the rule in Wild's case, 101. differs from that of England as to the application of the rule in Shelley's case, 93, 104. aemble, also as to the context required to convert property absolutely, 163. as to the rights of the survivor of several benefici- aries, 195, 203. precatory trusts, 214, 217, 219. illusory appointments, 230. the rights of a devisee of a mortgaged estate to ex- oneration, 237. the admission of parol evidence on the question whether a legacy is charged on land, 238-9. the effect of a direction to pay, debts in charging lands,-^40. marshalling for legatees, 260. vesting of legaciSs, 260, 265. trusts for the separate use of a male, 287. gifts to a class, 295. computing survivorship, 296. in regarding heir as a purchaser, 102 etseq., 304. as to a devise to testator'^ heir, 400. in not executing charitable uses fy pres, 409. in holding that a direction to executors to pay debts does not charge land, 240. unless the devise is " after payment of debts and leg- acies," or these are to be " first" paid, 240. in presuming that a widow elects in favor of the will, 246. as to dower, 248. in admitting parol evidence to raise a case of elec- tion, 248. 436 nsTDEX. " AND," read « or," 35, 38. ANNUITY survives to executors, 261. bequest of annuity, not existing previously, confers only a life interest, 91, Aliter, if a fund, such as public stocks, be appro priated for the annuity, 91. charged on land, 178. trustees for, lb. apportionment of, 242. See Legacy. is primarily payable out of the personalty, 238. even when charged on both realty and personalty, 238. ■with dower, 251. to be capitalized, when, 157. specifically bequeathed in settlement, 158. APPOINTMENT. See Powbr, Tbust. trust in default of, 224. the first devisee under, takes the legal estate, 174. should not be to trustees, when, 174. ctanot be made to a deceased child, 229. mode of evading this difliiculty, 229. and deed creating the power, are but one integral instru- ment, 94, 95. under a will, construed as part thereof, 9. "APPURTENANCES," meaning of the word, 64, 75. in i^m erica, 64. AETICLES. See Marriage Articles. are expounded like executory trusts in wills, 24. ASSETS, administration of, 353 et seq. distinction between legal and equitable assets, 353. abatement if assets are insuificient^ 353. no abatement of specific legacy, 356. order of administering, 354. lands are auxiliary, 355-6. when marshalled, 356. test of the right to marshal, 357. who entitled to marshal, 358-9. ASSIGNMENT. See Alienation. "ASSIGNS," of use in covenants, not in grants, 301. ASSUMPSIT, action of, when available to a legatee, 242. " AT HOME," when property is said to be, 252. INDEX. 437 B. " BALANCE OF ESTATE," meaning of the phrase, 238. BENEFIT of survivorship, 196. " BEQUEATH," meaning of the term, 62. BEQUEST. See Personalty. to A. for life, and, if he die without issue, over, 154. for a particular purpose, is generally absolute in effect, 224. of mortgages or securities for money, 187. effect of, on devisee of a particular mortgage 187-8. " BESIDES," effect of, 351. BOND, election in case of, 251. bequest of principal of, does not carry interest, 71. is not a novation or fresh adoption of a mortgage, 234. BONUSES. See Dividends. elucidated, 340. BOOKS will not pass manuscripts, 73. may pass under copyright, 73. CANAL SHARES are interests in land, 396. are not " securities," 72. CAPACITY TO WILL, how proved, 14. burden of proof of, 15. in cases of fraud, 15. • at common law, 13, 14. / of married women, 13. as to their separate estate, 13. or under a power, 13. under State laws, 13, 14. question of, is not one of construction, 12. but may indirectly be such, 13. CAPITA. See Per Capita. CASE LAW of wills, to be important, must be recent, 48. of England, recognized here, 3. CHARGE. What is a charge of debts, 33. on land, 240 et seq. 438 INDEX. CHAEGE OF DEBTS passes a fee, when, 81. not if there be an express life estate, 81. always impliedly attaches to the land, if expressly imposed on devisee, 81. under a charge, 178. its effect on the estate of trustees, 178. effect of, on a general devise, 79. on land, of a certain percentage of the value of the estate, is a general legacy, 339. on gift does not affect vesting, 263. to be raised out of rents and profits, gives a power of sale, 90. especially if the charge is secured by a term of years, 90. aliter, if the payments are not to be made imme- diately, 90. if express, makes the land the primary fund for payment, 232. of a mortgage debt, 235. if these are specified, will bind purchaser from de- visee, 237-8; gives a fee, when, 242, 243. construction of, not affected by State statutes, 243. CHAEITABLE USES, statute of, 392. its relations to mortmain, 392. has not been re-enacted in all the States, 392. but these have a common law jurisdiction to ad- minister charitable uses, 395. in New York, 393, 406. are never void for uncertainty or remoteness, 395. definition of, 401. doctrine of, rests not wholly on the stat. of Eliz., but also on the common law, 401 . are administered by courts of equity, 401. are free from all taint of perpetuity and uncertainty, 40l-2. unless when mixed with other uses, 406. appointment to a corporation for, 402. the statute prevails by construction in Massachusetts and Pennsylvania, 402. also in North Carolina and Kentucky, 402. the statute has not been expressly re-enacted in any State^ 402.' IKDBX. 439 CHARITABLE USES— Continued. and has been repealed in New York and Virginia, 402, examples of, 402 et seq. assets marshalled for, when. only, 398, 404. no restriction as to bequests for, 405. aliter, as to devises of land, 404. decisions under the stat. of Eliz. are important even in those States where the statute has not been adopted, 405. unappointed gift to, will be appointed by the court, when, 405. not executed fy pves, 405. relation of the Constitution to gifts to charitable uses, 407 . if void at first, yet may acquire validity by presumption 399, 407. examples of uses not charitable, though resembling such, 407-8. surplus for, 409. blank for, invalidates, 409. and causes a resulting trust, 410. charged on realty and personalty, 399. not favored here as much as in England, 21. trusts for, not executed gy pres in America, 162. CHATTELS. See Personalty. CHATTELS REAL. See Term or Years. CHILD. See Children, Illegitimate Children. gift by parent to, 364, 365 et seq. rights of, in respect to revocation of will, 7. " surviving," 205. issue of deceased, favored, 205. mode of appointing to a deceased child, 229. CHILDREN, immediate gifts to, 289, 290, deferred gifts to, 289. w,hen substituted for their parents must survive the period of distribution, 290. this rule peculiar to gifts to children, 290-1. " without having children," 290. gift of $5,000 to all the children of A., payable when they attain twenty-one, 291. gift of $100 to each of A.'s cliildren who shall attain twenty- one, 291; 440 INDEX. CBILDEEN—Oontinued. distinction between the last two gifts, 291. " the present-born children of A.*' must still survive the tes- tator, 292. to A., " and if he die without children, over," gives A. the absolute property, subject to the contin- gency specified, 293. estates sought to be implied for, 293. gift "to the children of A. on marriage," becomes distrib- utable when any one of them marries, 294. aliter, if the gift is to them at twenty-one, 294. reason of the distinction between the last two in- stances, 294; to A. for life, remainder to the children of B., 294. general rule as to gift to children after a life estate, 294. rents meantime fall to the heir or residuary devisee, 295. " now living " refers to the date of the will, 295. to A.'s children, their heirs and assigns, 296. to grandchildren on their marriage, 296. take Vested interests, when, 297. after born, as regards the rule in Wild's case, 314. if illegitimate, never take if legitimate could have been in- tended, 315. illegitimate take, when, 315, 316. primary meaning of the term in the American States, 310. meaning of the term is controlled by the context, 310. construed as heirs of the body, when, 95. " dying without issue," 126. children, if posthumous, still have plenary rights, 311. adopted, are not the children of the adopter^s wife, 311. take per capita, when,, 324 et seq. CHOSES IN ACTION, comprised under "property," 61. CIVIL WAR, its relations to testamentary rights, 16. CLASS, members of, how reckoned in America, 295, 296. sometimes means only certain individuals known to testa- tor, 288. ascertained at period of distribution, 288. period for ascertaining under an immediate gift, 288, 289. under a deferred gift, 289. of children, 289 et seq. limitation of a residue to a, 290. INDEX. 441 CL A SS — Continued. no general rule as to vesting can be applied to gifts to ^ , Classes, 290. construed in a peculiar way when " children," " brothers," &6., are the beneficiaries, 290. when " all and every " is added, 290. of children substituted' for their parents, 290. if the whole charge is increased, the class is computed before the period of distribution arrives, 291. definition of, when there are none at testator's death, 292. interest falls into residue in such case until the first taker appears, 293. CLAUSE, effect will, if possible, be given to each clause in a will, 30, 33. this illustrated by an express charge, 33. last prevails, of several inconsistent ones, 30. , will be construed in a reasonable way, 30. effect of a void clause on rest of will, 33. every clause will be rendered effectual, if possible, 39. else the last prevails, 39. the same clause may receive two different interpretations as to t-ealty and personalty, 35. effect .of void clause on will, 55. if separable from others, the'se are valid, 55, 56. CODICIL, republication of will by, 5. effect of, Id. with respect to legacies adeemed or sat- isfied, 5. partial revocation by, 6. effect of, as to tepublication of will, 9. in England, 9. as to dower, 9. and will are one instrument, as to the rule in Shelley's case, 94. trust in an illegal codicil does not affect prior will, 186. COMMON. See Tenancy in Commoit. COMMON LAW, doctrines of, are always important, 231. prevails in the United States, 1. how far in Virginia, Ohio and Arkansas, 2. of Louisiana, 2. relations of, to Federal jurisprudence, 2. the heir was not liable to debts at common law, 237. common law title extinguishes equitable one, when, 298. 442 INDEX. CONDITION. See Executory Interest, Legacy. was a common law mode of defeating an estate, 267. cannot be reserved on a grant in fee, 267, 275. gives a power of re-entry, 267. cannot transfer an estate in a deed, but can in a will, 267. the ulterior estate is termed a shifting use, executory devise, or conditional limitation, 267. is destroyed by a release for once in some States, 273. this is the common law rule, 273. but is now abrogated in most States, 285. comprising various acts, 273. must be performed within a reasonable time, unless the .con- text is to the contrary, 273. if after an estate tail, may be defeated by the tenant in tail, 273. is express or implied, general or special, precedent or sub- sequent, real or personal, 270, 273. distinctions between these, 271, 273-4. when impossible, 274. ' if repugnant to the nature of the estate, or to. its incidents, is void, 274. examples of, 268 et seq. attached to a particular estate may not affect a remain- der, 269. illegal and void, examples of, 270, 274. binds beneficiary, 270. distinguished from a limitation and a covenant, 270. is virtually a trust, 270. is construed subsequent, if possible, 270. if of the nature of a coflsideration, is usually precedent, 272. "that beneficiary shall not frequent public houses," is valid, 272. is within the rule against perpetuities, 275. at common law, 268. law of, much altered by construction, 268. in terrorem, 268. when deemed precedent, 272. is restraint of assignment, 274. in case of a fee, 275, 391. against alienation by a male, 278. against aliening when void, 277 et seq. INDEX. 443 CO NDITION— Continued. " in restraint of marriage, 280 et seq. ' in the civil law, 281. against the remarriage of a widow, 282. as to land, 282. against celibacy, 283. abridging religious liberty, 283. that legatee shall not dispute will, 284. a legacy to a church, if C. continues its pastor, is valid, but is given on a condition, 412. when relieved against in equity, 285. is apportionable, 285. CONDITIONAL FEE, instances of, 124. CONELICT OF TESTAMENTARY LAWS arising from various statutes, 8. CONSENT, what is a sufficient consent to marriage, 284. of husband to wife's will, 13, 14. must be to a particular will (in the concrete), 14. CONSIDERATION invalid, distinguished from invalid covenant, or clause, 56. CONSTITUTION, relations of gifts to corporations to, 406. bequests against the spirit of, are void, 413. CONSTRUCTION, what is testamentary construction, properly so called,' 25. cannot be aided by revoked will, 58. has not much altered the old rules respecting general de- vises, 78. rules of, distinguished for presumptions, 160. rules of, distinguished for those of law, 81, 152, 266, 274. rules of, subject to testator's intention, 120. general principles of, 22 et seq. fy pres is not adopted in respect to charities, 22. principles of, adopted by Supreme Court of United States, 23. causes of the difficulties relating to testamentary, 27. equitable, 34 et seq. reason why wills are equitably construed by all courts, 35. py pres applied to remote limitations, 36. cannot be affected by accident, 52. 444 INDEX. CONSTEUCTION— Continued. is preferred to parol evidence, 53. rules of testamentary construction are essentially the same as those relating to the construction of contracts, 24. principles of American, 22 et seq. has altered the old rules of wills here, 17. secondary and cy pres, 378, 383, 385. not affected by events, 383. py pres, 63. cannot be directly affected by fraud, 55.' CONTEXT may control domiciliary law, in what respects, 1 1 . is the chief guide to the construction of a will, 23. may regulate the meaning of all terms in the will, 62. overrides rules of construction, 120. CONTINGENCY. See Contingent Interests, Remainder. may affect a whole series of rerftaihders, 257. rule respecting, 257. relating to donee, 260. to subject of gift, 260. does not prevent the gift from being transmissible, 264. CONTINGENT INTEREST of personalty, 257. examples of, 255. gift to persons living at a certain period is a, 257. substitutional gift is not a, 257. CONTINGENT REMAINDER, often hard to be distinguished from a vested one, 139. examples of, 140. limitation to trustee to preserve, die., 139, 140. this limitation is, in principle, itself contingent, 139. the trustee may defeat remainders, 143. meaning of the word " heir " in, 297. in personalty, 153, 154. CONTINGENT RESIDUARY BEQUEST, carries income, when, 347. distinguished from a contingent residuary devise, 348. CONTRACT FOR SALE, effect of rescission of, on devise, 64. CONTRACTS are construed like wills, 24. INDEX. 445 CONVERSION of property explained, 155. when the proceeds of sale are to be divided, the beneiici. aries take their shareB as personalty, 155. if the trusts fail, the property is still changed from real to personal as directed, 155. money directed to be laid out in land is realty, 155. as to powers arises only under an imperative trust power 156, 157. fealty, subject to a discretionary power to convert, pays no legacy duty, 156. not deemed intended to avoid an illegality, 156. of land into land, 156-7. " with consent," the fund is personal, 157. is only deemed to be for the particular purposes mentioned in will, 163. unless the context is to the contrary, Jb. what context is insufficient to repel the presump- tion, 163. semble the American rule is different, 163. does not let -in simple contract creditors, unless thesehave rights otherwise, 164. the beneficiary is entitled to the property at once, 157. when deemed to be made, 158. property retains its character until converted, 158. when may beneficiary elept against the conversion, 159. CONVEYANCING, rules of, how far applicable to wills, 32. CORPORATION, gifts to, 46, 392 et seq. in New York, 393 et seq. devise in trust for, 394. devise to foreign, 16. taking to the use of another corporation or of an individual, 174. COURT, access to, open to all, 52. places itself in position of testator, 53, does not discountenance a construction involving a lapse, 425. aliter, if it divests an interest, 425. the distinction explained, 425. inclines against double gifts or portions, 365. inclines 'to regard interests as vested, 257. and conditions as subsequent, 257. 446 INDEX. " COUSINS," comprises only first cousins, 323. COVENANT, not to execute a power, 208. CREDITOR, gift to, 364. CROSS REMAINDERS. See Rbmainder. implication of, how precluded, 145. this implication is most convenient, 146. , under executory trust, lb. may be implied between classes as well as individuals, 146. implication of, requires subsequent words, 147. " with remainder," sufficient for this purpose, 147. semble, the implication applies to executory devises in fee and to bequests, 147. contra, Jarman, 147. his opinion on this point examined, 147, 148. CUMULATIVE LEGACY. See Legacy. QY PBES. See Construction, Will, Intention, Perpetuity. construction applied to remote limitations, 36. none for charities, 21, 162, 395, 396. in cases of perpetuity 378, 383. not applicable to personalty, 151, 152. D. DATE, for construing a will, 16. DEATH. See Dying without Issue. limitations dependent upon, 120. DEBTOR, legacy to, 361, 869. " DEBTS," did not bind heir at common law, unless they were special, 237, did not, at common law, bind land, even during debtor's life, 231. this rule altered under Ed. I., lb. bind personalty primarily, 231 . hence, the heir is said to be favored in law, effect of charge of debts on general devfse, 79. if charge is imposed on the person of the devisee, and not confined to the land, 79, 80. principle of the distinction, 79. purchaser's liability for, 237-8. trust to pay, 160. estate taken by^trustees to pay, 177, 179. INDEX. 447 "DEBTS"— Continued. meaning of the ■word, 72. passes bonds, bills of exchange, and cash balances 19. banker's hands, 72. do not pass under " money," 72. charges estates tail, in what States 116, 117. a direction to pay charges any land devised to executors, 240. when :pa.\d pari passu, 354. DECEASED. See Child, Issue. declarations subsequent to the res gestae are admissions, 186, DEEDS are construed like wills, how far, 25. premises of, may be controlled by habendum, 302. uncertainty in, governed by same law as uncertainty in will, 47. " to A. and his heirs male," in a deed, 299. " right heir," in a deed, merely means " heir," 300. habendum in a deed properly contains the limitation of estate, or quantity of interest conveyed, 301. how far open to a py pres construction, 25, 26. DEFAULT, trusts in default of appointment, 224. DEFERRED GIFTS, become air payable together on the first vesting in possession of any one share, 294, DEFINITENESS. See Unckrtaintt, Trust. DEFINITION of a will, 4. DELAWARE, rule in Shelley's case is only a rule of construction in Delaware, 103. DEMONSTRATION. See Desceiption, False Demonstration, Uncertainty. DEMONSTRATIVE. See Legacy. legacy explained and illustrated, 330 et seq. " DESCENDANTS," will not include collateral relations, 307. means issue of every degree, and these take per capita, 307. DESCENT, eflfect of varying, 111. imperfections of a title by, 113, 114. preferred 'to purchase, 73. DESCRIPTION, though inaccurate, may be sufficient, 42. rifle as to, stated in Smith v. Smith, lb. DEVISABLE INTEREST, what is a, 19 et seq, test of this question, 19. of bankrupt, 20. 448 IKDEX. DEVISE, meaning of the word, 62. , rules as to, ought to be uniform throughout the United States, 77. of wild land in Massachusetts, gives a fee, -77. is executed by statute of uses, 173. and may contain any kind of power, 175. but appointae of special power must be an object of the power, 175. Jarman's error as to the statute of uses, " forbidding the limitation of a use," X73, lapse of legal estate in, 173. to aliens or corporations, 174. to uses, passes the legal estate, when, 174. to the use of trustees, does not necessarily give them the legal fee, 174. a general devise confers only a life estate in some States, 75. with words of perpetuity give a fee, 75. or if charged with deaths and annuities, 79. this- question not open to parol evidence, 75. the statutory presumption not rebutted by a grant for repairs, 76. for life, with. power to convey the fee, gives only a life estate, 80. after payment of a charge gives only a life estate, 80. over, on failure of issue, gives a fee, 80. in fee, subject to a general devise over, 80, " to A. in trust for B. in fee," gives A. a fee, 80. what is an implied devise in fee, 88. for life, with a power of sale, does not give a fee, 88, of the absolute interest, precludes remainders, 88. to trustees to pay rents, 175. to permit A. to receive rents, 175. to pay, or permit A, &c., 175. of land under a contract for sale, 183. if contract fails, 183. is not construed by the event, 183. a general devise passes mortgage or trust land, when, 187. of a particular mortgage, 187. when an execution of a power, 208. on limited trusts, with powers of sale or leasing, 1 79. against heir, in New York, 259. of " the plantation on which I now live," 82. INDEX. 449 'DEVISE—Contirmed. in fee, subject to an exception, 82. of " my property after my debts are paid," 83. of the use for life, with a power of appointment, gives the fee, 83. " to do and dispose of as he may think proper," gives a fee, 83, 84. of " all the rest " of landg, does not pass a fee, 86. DEVISEE not liable to debts prior to 3 & 4 W. & M., c. 14, 237, nor to simple contract debts in England until 3 & 4 W. IV., c. 104,237. even now he is only secondarily liable in the United States, 242. rights of, when testator has no land, 20, DIRECTION to pay debts, 179. to convert property, 155 et seq. DISCLAIMER consistent with vesting, 259. DISCRETION in trustees as to time for con verting property, 158. of executors is subject to court, 52. DISCRETIONARY POWER. See Power. does not work a conversion of property, 156-7, if unexecuted, is inoperative, 156, 211. DISINHERISON. See Heir. DISTINCT GIFTS will be construed as distinct, 33. DISTRIBUTION, period of, 201 et seq., 289 et seq. See Class Children. words of, in relation to the rule in Shelley's case, 153. implied beneficiaries under a power of distribution take in common, 228. words of, in respect to issue and heirs of the body, 308. DIVIDENDS belong to tenant for life, 340. to specific legatee, when, 340. DOMICIL, definition of, 11. law of, in respect to wills, 10. semble, does not govern devises, 10. aliter, as to bequests, 10. conflict of authority on these questions, 10. arguments on the point, 10. may be controlled by context, 12, 32. Jarman's opinion as to domiciliary law, in respect to lease- holds, 11. results of change of domieil, 11. 450 INDEX. DOMICIL— Continued. of origin, 11. of infants, 11. fact of, may be proved by parol evidence, 12. law of as to testamentary capacity, 13. law of, in cases of election, 250. DOWER, favored, 244, 245. when defeated, lb., 246 et seq. test of this, 245. with annuity, 251. DOWER and THIRDS, meaning of, 246. when excluded, Ih., 247. not excluded by an annuity, 247. in England, 247. has been much legislated upon in America, 248. "DYING WITHOUT ISSUE "is construed in America as in En- gland, 123, 127. where there is a change of debts, 123. means dying without heirs of the body, when, 123. "leaving no issue," 124. when pointing to a failure at a definite time, 122. limitation dependent on, usually implies an estate tail in previous donee, 118. may render a limitation too remote, 118. where no estate is given to the propositus, 118, 119. in limitations of personalty, 119. of realty, M. V exceptions to rule fqr construing, 120. reason of the rule for construing " dying . without issue " as denoting an indefinite failure of issue, 121. followed by " after his decease," 126. statutory construction of, 125, 129, 130. is open to much difficulty, 180. as interpreted by 1 Vict. c. 26, and the statutes of Virginia, Mississippi, N. Carolina, and New Yorit, 128; when the old rule applies, 128. effect of, still may be determined by the context, 32, 129. to A and his heirs, and, if he die without i(ssue, over ; A. takes an estate tail, 128. American statutes respecting, 129. are controlled by context, 129, in relation to powers, 129. INDEX. 451 E. ECCLESIASTICAL COURTS used to give probate of wills of per- sonalty only, 9. « EFFECTS," meaning of, 62, 67. EJECTMENT, importance of legal estate in, 185. ELECTION, principle of, 249. corresponds to estoppel under a deed, 249. how raised, 75. when confined to personalty, 70. against conversion, 159. when available, lb. its relations to a condition, 252, 253. under will of married Woman, 253. margin for, narrowed by statute, 253. by widow, 246. where there is a general devise, 246. may be raised unconsciously by testator, 250. results of electing against will, 250. not raised by a general devise, 250. doctrine of, does not apply to creditors, 250. by foreign heir, 250. by next of kin, 251. by dowress, 244 et seq., 251. by infant, 252. how made, 252. under defective will, 252. requisites for, in the United States, 252. cannot be raised by parol evidence, 250. ELEGIT, estate by, is a chattel, 177, 179. ENTAIL, what is a quasi entail, 21. what words necessary to create, in a deed, 26. ENTIRETIES, what is a tenancy by entireties, 93. See Tenancy by Entireties. EQUALITY is equity, 245. • especially in America, 245. EQUALLY DIVIDED, 105. " EQUALLY TO BE DIVIDED," does not necessarily imply a fee, 82, 83. but is some evidence thereof, 84, 85. EQUITABLE CONVERSION. See Conveesion. EQUITABLE ESTATES are subject to rule in Shelle^-'s case, 98. devolution of, 20. 452 iNDEsr. EQUITY, construction of will in, 34. presumptions of, 34. favors a tenancy in common, 134. administers legacies in trust, 329. follows the law, in administering assets, how far, 353. follows the law in deductive, not inductive, respects, 21. maxims of, 155, 174, 185. never wants a trustee, lb. common law jurisdiction of, as to charitable uses, 395. follows the law in presuming a joint tenancy, 134. EQUITY OF REDEMPTION. See MoRTOAaE. does not pass under Br^revious devise of the mortgage, 182. release of, may be presumed from long possession^ 182. " ESTATE," meaning of the word, 60, 80, 81, 83. this word does not imply a charge, 242. devolution of equitably, 20. for years vests in executor, 21. par autre vie vests in executor, when, 21. ESTATE par autre vie. See Tenant par autre vie. ESTATE TAIL, nature of, 108 et seq. no merger of, 113. danger of barring, by fine, 113. may mean a special entail, 113. often arises from implication, Ih. presumption in favor of, 121. how rebutted, lb. is sometimes a more valuable interest than an estate in fee, 121. supports remainder, 121. none in personalty, 122. as determined by the phrase "dying without issue, 118 et seq, 122. followed by an estate for life, 122. difficult instances of construing, 122, 123, by implication, 167. See Tenant in Tail. ESTOPPEL, corresponds to election under a will, 249. EVENT never controls construction, 338, 383. EXCEPTION giving rise to an implication, 171. operating as an execution of a power, Tb. in a will is construed as a grant, 64. effect of, 73. of part of a fee gives a fee in excepted part, 171. ujde:^. 453 EXCLUSION of one is the inclusion of another, 25. EXECUTION. See Power. EXECUTORS, to A. for life remainder, to B. or his executors, B. takes the whole interest, 305. to "A, or his representatives," after a life estate, 305. means next of kin, when " share and share alike" is added, 305. equivalent to heirs taking hy substitution, 305. " assign," when following " executors,'' is always a word ot limitation, 307. powers of sale by, 209, 210. ' rights of, to securities taken upon the sale of land, 164. power of, to sell land, 241. direction to pay debts, 240. does not charge land in the United States, 240. takes only a power, and not an estate, under a direction to pay debts, 179. takes no estate under a mere power to divide, 184. aliter, under a power to manage, lb. estate taken by, under a direction to pay debts, 179. appointed by implication, 172. •when S, legatee, 307. must be an acting executor, to take legacy, 187, 307. effect of legatee being also, 63. to pay rents and profits to devisee, 187, . takes legal estate, 187. of debtor, is.a trustee of his debt, 187. rights and duties of substituted, 187. discretion given to, cannot supersede litigation, 52. EXECUTORY DEVISE, distinguished from a remainder, 112. EXECUTORY INTERESTS, donees under, are constituted by the court tenants in common, 228, 229. definition of, 135, 141. distinguished from remainders, 138, 139, 141. are exactly the same as uses, 142. of chattels, 142. where these are consumable by use, 142. cannot be defeated, Ih. hence arises their great superiority to remainders , 143. are sometimes of the nature of conditions subsequent, 143. are expounded by construction, and not by events, 143, 454 INDEX. EXECUTORY INTERESTS— Continued. limited on alternative contingencies, 143. why subject to the rule against perpetuities, 115, 144. Kent's opinion on this point examined, 1 15. are not so subject as a trust executed to rule in Shelley's case, 136. nor to the presumption in favor of a joint tenancy, 136. there may be several executory interests in chattels altern- ative to a limitation in tail, 153. relations of, to particular estates, 415. EXECUTORY TRUSTS, how far subject to rule in Shelley's case, 98, 99 et seq. EXECUTRIX, testamentary capacity of, 14. EXONERATION, what necessary to exonerate personalty from liability to debts, 235, 239. order of funds liable to exonerate land from mortgage, 234. ~ construction of the English exoneration statute, 235, 236. in the United States, 237. of personalty, 33. in favor of a particular person, 240. devisee of mortgaged estate entitled to, 231 et seq. , this presumption how rebutted, 232. may be by iraplicaltion, 241. EXPERTS, evidence of, as to foreign laws, 12. EXPRESSIONS of endearment are not of much avail for construc- tion, 161. EXPUNGING words, 62. when allowed, 39. EXTRA DIVIDENDS. See Dividends. on testamentary gifts, 340. F. FACTS, foreign laws are proved as, 12. "FAILURE OF ISSUE," limitations dependant upon, 114. are not too remote after an estate tail, 114. unless they are executory, and not remainders, 115. reason of this distinction, 115. FAILURE OF TRUSTS leads to resulting trusts, 161. INDEX. 455 FALSE AFFIRMATION by beneficiary may «ot affect gift to him, 56. FALSE DEMONSTRATION, is innocuous, when, 42 et seq. " FAMILY," meaning of the word, 46, 313-4. means children in bequests, 317. means heirs in devises, 317. meaning of, is often determined by the context, 317, 318. FARM, meaning of the word, 65, 66. FEDERAL LAW, its elements, 2. relations of, to the common law, 2. FEE. See Devise, Land, Realty, Will, " Construction." passes under a devise for a permanent purpose, 83. passes by what words, 61, 62, 81, 82. passes by a charge of debts, when, 81. or by the word residue, lb. or by a devise of the rents of the estate, 81. passes when, 75 et seq. when taken by trustees, 174 et seq. • when not cut down to an entail, 168. FEE SIMPLE. See Tenant in Fee Simple. FEE TAIL. See Tenant in Tail. principles for distinguishing fee tail from fee simple, 88. FEUDAL SYSTEM, theory of, as to rights to land, 231. FINE, effect of, 113. FORECLOSURE, devise of equity of redemption acquired by, 182. FOREIGN LAWS, are proved as facts to the court, 12. presumption as to the substance, and provisions of, 12. FORFEITURE, for felony, 16. law of, varies in the different states, 16. "FORTUNE," meaning of the word, 69. FRAUD. See Undue Influence. is not directly connected with construction, 54. definition of, lb. undue influence is a species of, 54, 55 et seq. its indirect relations to construction, 13. parol evidence is always admissible in questions of, 187. statute of, has been adopted in most of the States, 2. FREEHOLD. See Fee Simple, Realty. FUND, a sole fund for payment of debts, 243. 456 INDEX. » G. GENEEAL DEVISE. See Devise. in the different States, 75, 76. " * effect of, by statute, 31. . does not pass money secured by mortgage, 61. does not raise a case of election, 250. GENEEAL INTENTION, is considered, in order to discriminate void from valid parts of will, S3. GENERAL LEGACIES, are more favored than specific ones, 28. GENEEAL WOEDS, their nature explained, 63, 349. " GOODS," meaning of the word, 67. worldly goods, 67. at a particular place, 67, 68. other goods, 68. GOODS AND CHATTELS. See Personalty. meaning of the phrase, 68. GQODS AND MOVEABLES, meaning of the phrase, 71. GUAEDIAN, in New York, 344. H. HABENDUM, in a deed may qualify premises, 110. , " HEIE," means statutory heir, 297. the meaning of" heir" is not open to parol evidence, 297. when the limitation is a contingent remainder, 297. " and to her heirs " held to be substitutional, 297. the substitutional sense of the word heir is more likely to be adopted in some States than in others, 298. does not mean devisee, 298. takes by descent rather than by devise, when, 298. sometimes means " next of kin," 298. especially in America, 299. "heir female" may take only an estate for life, 299. " to A. and his heirs male " in a deed, 299. in a will confers an estate tail, 299. distinction between an Jieir male or female by descent and one by purchase, 299. . Sir Ed. Coke's opinion overruled, 300. meaning of the term in Maine, 303. where there is a peculiar local law of descent. 303. where the gift is substitutionary, 303. IKDEX. 457 " UEiR"— Continued. where the fund is mixed, 303. applied differently to realty and J)ersonalty, 303. such a construction is boldj where no rule of tenure, is in question, 303-4. heir-at-law in a hequest means " next of kiti," 304. may take a legacy and after-acquired lands, 304. in Pennsylvania, 304. . , in Maryland, lb. in New Jersey, lb. " to the right heirs of the name of" A. None can claim but one who is both heir general and also of the name of A., 300. " right heir" in a deed means heir, 300. takes a contingent remainder in New York, when, 301. rule in Archer's case, 301. » various limitations to, 302. in connexion with personalty sometimes means children, 303. in America, 303. is a purchaser in New York, 102. denotes a substitutional gift, when, 424. where there is a sale, 106. why said to be favored in law, 26, 27, 231, 233. can only be disinherited by plain words, 77. a foreigner, put to his election, 250. under a devise, still takes by descent, 77. in a devise to trustees may be rendered inoperative by the context, 180. bound only by specialty debts at common law, 237. favored more in some instances in the United States than even in I^ngland, 240. in cases of charitable uses, 162. . rights of, excluded only by strong implication, 162. resulting trust to 160 et seq. takes realty as a chattel, when, 161, 164. may mean issue, 110. HEIRLOOM, executor not allowed to sell, except to pay debts, 341. « HEIRS AND ASSIGNS," does not necessarily pass the absolute interest, 88. " HEIRS OF THE BODY," sometimes words of purchase, 104. HEREDITAMENT, meaning of the word, 60. HOUSE, meaning of the word, 64, 65. means heirs, 318. 458 INDEX. HOUSEHOLD EFFECTS, meaning of the phrase, 69, HUSBAND AND WIFE, joint will by, 5. gift to, and to a third party, 287. as tenants by entireties, 93. I. IDENTITY, requiring proof of, does not affect vesting, 263. ILLEGALITY, to be proved by parol, must be part of the res gestce, 186. ILLEGAL TRUSTS, not presumed, 156. ILLEGITIMATE CHILDREN. See Children. never take, if legitimate children could have been intended, 815. take, -when, 315. cannot take under a general description, 316. never can claim along with legitimate children, unless the context is to that effect, 316. cannot take if there is a question of paternity involved, 317. ILLUSORY APPOINTMENT, now illegal in England, 229. but not in America, 230. IMMEDIATE GIFT, what is an, 290. IMMORAL GIFTS explained, 414. examples of, 415 et seq. IMPERATIVE, what is an imperative direction, 221. IMPLICATION, explanation of, 149, 166 et seq. not open to parol evidence, when, lb. must be very strong, 166. with respect to precatory powers, 166. precluded by an express gift, 167, of disinherison, 167. ' from gifts to strangers or to one of several co-heirs, 167, 168. from gifts to testator's heir, 167, 168. of an estate tail, 167. of estates to issue, 168. after an estate for life, 168. rebutted by a residuary devise, 168. of a life interest, 170. in case of personalty, lb. of cross remanders may be between several and even be- tween classes, 145, 146. is unknown in deeds, 149. INDEX. 459 IMPLICATION— Continued. sed qu. as to life estates, even of freehold, 150. arises on a gift to the survivor of a class of donees, 150. is a doctrine not of tenure but of construction, 171. arising frona an exception, 171. executor may he appointed by, 172. of powers, 172. may arise from an erroneous reference, 30. will not control an express limitation, 32. of an intention to exonerate personalty, 241 . of a fee, 124. of a fee tail, precluded, when, 125. •allowed, when, 126, 128. estates by, 302. applies to personalty as well as realty, 1'70, 802. of cross remainders, 1 44 et seq. under a trust power, 206, 226«e< seq. when rebutted, 226, 227. when not rebutted, lb. IMPLIED GIFT, extent of, 224, 226. INCIDENTS of estates, what are, 266. are rules of law, 266. but, the preliminary question under wills is one of construction, 266. INCLUSION of one is the exclusion of another, 41 . this maxim not always acted upon, 41. INCOME, when alone recoverable, 344. for maintenance at discretion of trustee, 222. undisposed of, under limitation to survivor, 168. when carried by contingent residuary bequest, 347. INCORPOREAL RIGHTS, grant of, by tenant in .tail is void, 109. INCUMBRANCE. See Charge, Mortgage, Registration. INDEFINITENESS. See Uncertainty. INDESTRUCTIBILITY of a contingent remainder may not have been contemplated by testator, 181. INFANT, land of, sold by court, becomes personalty, 164. damages paid to, for highway, are personalty, lb. court elects for, 252. INHERITANCE. See Heir, Fee, Devise, Implication, Land. words of, in a will, 110. INJUNCTION on behalf of prior equitable owner, 185. INSTRUCTIONS to scrivener, cannot be proved by parol evidence, 57. 460 INDEX. INTENTION yields to precedent, 23. but controls all rules af construction, 28, though not of law, 29. controls reference of adjective, 28. legal, not actual, binds, 29. to be inferred from the will only, and the proper parol evi- dence, 30, 31. may prevent last clause from controlling previous ones, 30. must conform to the rules of public policy, 29. applied to separate sound from unsound parts of will, 33. in a conflict of inconsistent intentions general intention always prevails, 33, 34, 36, 39, 40, may be directly proved, when, 49. • INTEREST, from what time recoverable on a legacy, 343. onspecifii) bequests for infants, 342, 343. on conditional legacies, when, 344. on annuity, 344. tenant for life of, 345. though subjected to a charge, does not prevent vesting, 263. aliier, if contingent on the discretion of a trustee, unless there is a trust for accumulation, 264. right of infant to, 342. , INTEREST AND DIVIDENDS, meaning of the phrase, 72. INTRODUCTORY CLAUSE is a good key to testator's intention 30. but will not pass a fee, 30. INVENTORY required from tenant for life, 340. « ISSUE." See " Dying without Issue." is very different from " such issue," 126. synonymous with " descendants," 307. a word of limitation in wills, 294j 307. when ancestor takes a freehold, 307. but is not so readily thus construed in be- quests, 308. in New York, 307. estates to, by implication, 169. Jarman's opinion on this point examined, 1 69. as purchasers, 1 30. distinctions between " issue " and " heirs of the body," 308. " to A. and his issue living at his death," gives A. an estate tail, sed qu., 308. take as joint tenants, 324. if tenants in common, take per capita, 324. INDEX. • 461 J. JOINT BENEFICIA.EIES under antagonistic clauses, 40. JOINT TENANCY, incidents of, 131, 132 et seq. a joint tenant can both enfeoiFand release, 132. * this power was important, Ih. can sever the jointure, 132. is more readily presumed as to realty than as to personalty, 133. presumption of, how rebutted, 133, 136. none between husband and wife, lb. to what the presumption in favor of a joint tenancy "extends, 134, 135. in case of lapse or void gift of part, 137. how severed, 137. how regarded in the United States, 137. principle of the right of accruer, or jus accrescendi, 131. is presumed, in every possible case, 131. its peculiar incidents, lb. is very convenient in trust estates, lb. in tail, when impossible, 93. exceptions to the rule presuming, 133. JOINT TENANT, presumption in favor of a joint tenancy, 200. wUl by, 21. under a will or by way of use need not have a unity of time with the other joint tenantsi^ 132. of a class, 132. " of realty, 133. ; JOINTURE, power to, ranks first if there are several powers in the same will or deed, 208. JURISDICTION of statutory courts, 9. of courts of domicil, 10. L. LAND, meaning of the word, 60, 61. meaning of the. word in America, 63. in Massachusetts, lb, contracted to be bought, 63. to be sold) 63. not devisible at common law, 35. may pass here under " appurtenances," 64, 65., aliter, in England, 65. used in partnership is personalty, 396-7. ' " 462 » INDEX. LAND — Continued. rights of alien to, 399. sold, becomes personalty, 164. directed to be sold, becomes personalty, 156.- unless the sale is to be with consent, 156. LAPSE, definition of, 41 et seq. ■though expressly negatived by testator, when, 317. none in the case of the death of some of several joint ten- ants, 417. • aliter, if the tenancy is in common, 417, in the case of a class, 418. is sometimes used to denote any kind of failure in America, 424. aliter in England, 424. where the phrase " now living " is used, 424. prevented by limitation to survivor, 202. question of, under limitation to next of kin of married women, 204, 205. question of, where there is a gift to survivors, 195-6. the courts do not strain against construing a gift according to the usual rules, even though this leads to a lapse, 425. of estate " to A. or his executors," 305. accelerates estates, 258. its effect on exoneration, 240. t of legal estate, unimportant, 173. may befall the equitable or the legal interest only, 418. does not affect charge on the interest lapsed, 418. lapse of a charge enures for benefit of devisee, 419. or heir, lb. lapse and void devises fall to the residuary devisee, in what States, 419. no lapse, if beneficiary leave issue, ip what States, 420. where legatee's death is already known to testator, 421. is the same as invalidity, as regards the residuary devisee, 422. enures, in most States, for the benefit of testator's heir, 422. testator is not presumed to provide for, 428. of a legacy to a debtor, 423. when none, 423. none, of a provision for creditors, 423. presumption of, in France, 423. is provable by parol evidence, 58. LAPSED DEVISES, when comprised in a residuary devise, 346-7. IJIDEX. 463 LAST CLA.USE, prevails, if several inconsistent ones, 30. LAWS, if foreign, are proved as facts to the court, 12. • LEASE. See Teem for Years, Personalty, 178. power to, inconsistent with dower, 247. LEASEHOLD, will pass as "land," when, 61. may pass under a general devise, 63. how affected by domiciliary laws, 1 1 . " LEAVING." See Leaving Issue. LEAVING ISSUE. See Dying without Issue. as to limitations of personalty, 119. points to failure of issue at death of propositus, as to personalty, 119, 124. LEGACY, defined and explained, 328. includes all personal charges, 328. controlled by context, 328-9. real or personal, 329. not recoverable at common law, 329. unless it is specific and the executors have assented thereto, 829. these rules much altered by statute, 329. if in trust, must be administered by a court of equitable jurisdiction, 329. is either general, demonstrative, or specific, 330. these kinds explained and distinguished, 330 et seq. a demonstrative legacy is the best kind of gift, 331. a specific legacy is usually prefixed with the word " my " or " the," 332. a legacy of money may be specific, 332. courts lean against construing a legacy as specific, 333. examples of specific legacies, 334. annuity charged only on land is specific, 334-5. of stock in general, 333 et seq. security for future, 339, 342. of chattels consumable by use, 342. abatement of, on a deficiency of assets, 342. payment of, not until after a twelvemonth from testator's death, 343. if subject to a condition precedent, 343. if charged on law, does not vest until it is payable, 259. unless the postponement is for the convenience of the estate, 259. payable out of realty and personalty, is partly real and partly personal in its incidents, 259. 464 INBBX. LEGACY— Continued. assets not marshalled for legatee, when, 260. to one when he attains age, is vested, 260. to be raised at a certain date, is vested, 260. if charged on land, is construed as a disposition of realty, 260. yet, if payable out of the proceeds of a sale, is vested, 260-1. when cumulative, 350 et seq. where there is a repetition of several gifts, 351. specific legacies cannot be cumulative, 352. summary of rule respecting cumulative legacies, 352. courts incline against accumulation, 352. parol evidence respecting accumulation of legacies, 352. personalty is primarily liable for legacies, even when charged on land, 242. do not charge land, 238. what charges a legacy on land, 241. on specific devises, 241. when charged along with debts, 241. adeemed or satisfied, how affected by republication of will by codicil, 5. election against, by next of kin, 251. a doubtful charge is construed against the legatee, 238. forfeiture of, 268. threat of forfeiture of, is sometimes merely in terrorem, 268. " to A. at twenty-one," is not vested until then, 261. but " for A. to be paid to him at twenty-one," is vested at once, 261. when recoverable by assumpsit, 242. when demonstrative, 244. when in its nature real, 244. LEGAL AGE, how computed, 13. LEGAL ESTATE, passes under a general devise, 18'7. executors take, when, 187. is of no value as to title, in States or districts having regis- tries of titles, 185. its only use, 185. presumed to be surrendered, when long outstanding, 186. test of, as regards trustees, 164, 176. distinction between paying rents and permitting another to receive them, 175. INDEX. 465 " LEGAL REPRESENTATIVES" means next of kin, 306'. sometimes means children, 312. " next legal representative " does not mean executor or ad- ministrator, 306. LIFE. See Tenant for LtFE, Estate. LIMITATION, words of, in respect to the rule in Shelley's case, 102 et seq., 809. LOT, meaning of the word, 66. LOUISIANA is still bound by its old common law, 2. M. MAINE, estate taken by trustees in, 181-2. meaning of the term heir, in Maine, 303. MAINTENANCE, trust for, does not authorize a sale, 211. " MALE DESCENDANT," title of, 300. MANORS must be as old as the statute Quia emptores, 17 Ed. I, 267. MANUSCRIPTS, will not pass under " books," 73. MARRIAGE revokes will of feme sole, 7. its effects as a revocation, in Virginia, 7. MARRIAGE ARTICLES explained with respect to the rule in Shelley's case, 100. MARSHALLING. See Assets'. of assets, explained, 356 etseg. not enforced in certain cases, 360. where there is a charge of debts, 243. is not allowed for charitable uses, 398. MASSACHUSETTS, construction in, 162. constitution of, adopted the common law, 1. wills iuj speak from date, 17. devise of wild land in, 75, 76. peculiar rules of, as to devises, 77. rights of widow in, 245. charitable uses in, 402. MAXIM, when the equities are equal the law will prevail, l85. hence, the importance of the legal estate in non- register districts, .185. MEANING. See Words. MERGER, origin of the doctrine, 131. results of, are incurable at law, 235. MICHIGAN, perpetuities in, 385. " MILL," Cleaning of the word, 66. 466 rBTDEX. MISDESCRIPTION, when inoperative, 42 et seq. See " Dksckiptiok," " UircERTAiNTr," " Demonstration," " Parol Evidbnob." MISNOMER is usually innocuous, 43 ei seq. MISTAKE as to character of beneficiary, 56. if patent, is rectified, 56. if latent, is not rectified, 57. when remediable by parol evidence, 57. MOMENTARY SEISIN. See Skisin. MONEY, meaning of the word, 69, 70, 71. MORTGAGE is a chattel, and will not pass under a general devise, , unless the will is otherwise so far inop- erative, 182. money secured by, does not pass under a general devise, 61. rights of a particular devisee of, 187. beneficial interest in, will pass, under a gift of debts and securities for money, 71. but not under a specific or general devise of latid, 182 3. unless the testator is in possession, or puts the land in settlement, 183. passes under personalty, 71. legal estate in, does not pass under " securities for money," 71. what passes under, 71 et seq. rights of devisee of, in the United States are not the same as as in England, 232, 237. devise of land " subject to," 232. in America, lb. when not contracted by testator, but had by descent, 233. what acts amount to an adoption of, 233. order of marshalling, or of exoneration, 234. when it belongs to owner of land, it is presumed to be ex- tinguished, 235. this presumption rebutted — when, 235. construction of the exoneration statute in England, 235. exoneration in the United States, 237. MORTGAGOR, when also Mortgagee, 235. See Mortgage. MORTMAIN, alienation in, explained, 392 et seq. how affected by the law of charitable uses, 392 et seq. INDEX. 467 » . N. NAME, meaning of, 321. assumption of, by license, 321. mistake in 43, 45 et seq, by repute is a i^fficient designation, 46. • may be ascertained by parol evidence. In what cases, 47. NATURALIZATION, effect of, 399, 400. "NEAR "relatives, 321. NEPHEW, includes such relatives by affinity, 310. NET INCOME, example of, 172. See Income. NET PROFITS are equivalent to the land, 89. " NET RENTS." See Rents. different from " rents " in its effect on the legal estate, 175. NEW YORK, constitution of, adopted the common law, 1. revocatioa of will in, 6, 8, 9, legal age in, 13. testameatary power in, 19, 76, 85, executory devises in, 87. rule in Shelley's case has been abrogated in, 102. remainders in, 138. charitable uses in, 406. perpetuities in, 385. NEXT prefixed to representative, 306. NEXT OF KIN, meaning of the phrase, 319 et ieq. take as joint tenants, 319. but next of kin under the statute take as tenants in common, 319* rule in Spink «. Lewis, 319. rule in Gundry ■». Pinniger, 319. more favored than heir as to vesting of gifts, 257. are as favored in America as the heir, as regards all rules of construction, 232. not barred by mere words of negation, 252. preferred to strangers in a doubtful case, 34. of married women, bequest to, 205. of the male line denote relatives on the fether's side, 320. resulting trust to, 160 et seq. take per stirpes, 326. NON' VESTING CLAUSE, its use, in settlements of personalty, 151, 152. 468 iNpBX. NOTICE of contents of wUl is presumed on the part of the testator, 54. of a charge affects registration by the person getting notice, 185. NOVATION of a debt, 233. " NOW," " now living," construction of, 18, « 0. OBJECT, uncertainty of, 45 et seq. instances of, 45. OCCUPANCY, a reference to, is mere description, 65. request concerning a tenant's, 223. • " OCCUPY," meaning of the word, 65. OMISSION in will, eifect of, 57. distinguished from implication, 40. OE, read " and," 38. may indicate a substitutional gift, 425. ORDER of funds liable to exonerate land subject to a mortgage, 234. " OTHER " sometimes synonymous with " survivor," 193, 196, a strange decision concerning, 312. " OTHER GOODS," meaning of the phrase, 68. PARENT, when donee of a power, 227. PAROL EVIDENCE. See Index to Part I, passim. is more freely admitted here than in England, 3, 21, 50. is sought latterly to be excluded by construction, 53. as to the res gestoe of a will, 4. is not admissible to rebut the presumption of a revocation of a will, when, 6. of domicil, 12. inadmissible as to the date whence the will speaks, 18. is admitted in most cases of uncertain description, 47, 53. is admissible to induce an operation of the rule in Wild's case, 50. is not admitted now as freely as formerly, 50. yet certain abstract phases are not held void now as former- ly, 48, 49. when not received, 50, 51. of intent, 50, American rules, as to, 51, 53.- semble, rules of, not altered by Wills acts, '51. INDEX. 469 « PAROL EYID'ENGE— Continued. not admissible to rectify mistake of faotpbut only of descrip- tion, 57. not admissible to prove directions to scrivener, 57. may show that a clause has been improperly inserted; 58. but not that a clause has been omitted, 58. admissible to explain the meaning of the word " farm," 66. not admissible in questions of resulting trust, 160, 165. . principle of this rule, lb. not admissible in questions of implication, when, 166* reason of this rule, 75. cannot be given of the meaning of the word " heir," 297. nor that a leigacy was intended to be substitutional, 352. test for the applicability of, 374. admissible to prove a secret illegal trust, 186. or any fraud, 187. as to whether a legacy is charged on land, 238. to raise a case of election, sed qu., 248, 250. PARTNERS, gift to, 45. are not presumed to be joint tenants, 133. PATERNITY, any question of, invalidates bequest, 317. PAYABLE, importance of the word in questions of vesting, 262. PENNSYLVANIA, testamentary power in, 78, charitable uses in, 402. survivorship in, 194. PER CAPITA, taking, explained, 324 et seq. a mistake of Toller and Williams, corrected by V, C. Wickens, 326. issue take, when, 324. a class taking, in default of appointment, 226. " PERPETUAL," meaning of the word, 85, 86. PERPETUITY, none at common law, according to Lord St. Leonards, sed qu., 375, 376. contra, Fearne, Preston, and Jarman, 377. the question stated, 377. powers of sale or exchange not open to, 378, 382. rarely occurs in a gift to testator's issue, 380, 381. Jarman's argument respecting the possible remoteness of remainders, 379. applies to the vesting not the possession of estates, 383. often cured by a fy pres construction, 378, 383. See Remoteness, Executory Interest, 470 INDEX. PERPETUITY— Continued. instances^f, 115. as to income, 386 et seq. in New York, 385, 388, in Michigan, 385. rule against, applies to executory interests only, 144. PERSONAL covenant not a real charge, 234. " personal representatives " sometimes means " next of kin," 306. property, 59, 60. See Pbrsonaltt, Realty. PERSONALTY, what is, 69. wills of, were expounded by the ecclesiastical courts, 35. are more liberally interpreted, perhaps, than de- vises, lb. bequest of, is not an execution of a general power, 52. what is, determined by context, 59, 60. is subject to the rule in Shelley's case, 94. limitations of personalty are sometimes construed -different- ly from those of land, 94, 119. is subject to rule in Wild's case, 101. estate tail in, gives the whole interest, 101, 151. as to the phrase "dying without issue," 118 et seq. limitation of, to the survivor " in default of issue, 129. not so readily deemed, as realty, to be owned in joipt tenancy, 133, 134. settlements of, 151 et seq. not subject to the ^y pres rule, 151, 152. cannot devolve as an heirloom, 152. and land contribute jointly, when, 356. primary fund for payment of debts, 231, 355. when the secondary fund, 231, 232 et seq., 244. specifically bequeathed, 233. when mortgage descended on testator, 233. in respect to, pecuniary legacies, 233. ^ by direct contract, 233, 234. by clause in will, 234 et seq. what context necessary for this purpose, 235. when the realty is directed to be sold to (pay debts and the residue is to " be added to the testator's personal estate," 239. INDEX. 471 PERSONALTY, primary fiind for payment of debts — Continued. when the land is| charged and the ^hole per- sonalty is speQifically bequeathed, 240. may be exonerated from debts by implication, 241. but not by doubtful words, 243, specific portion of a primary fund, 243. when not at all liable, 244. in case of election by foreign heir, 250. gift of, contingent where gift of realty would be vested, 259. land directed to be sold and terms ofyears are personalty, 259. alone passes, as a rule, under general personal terms, 63. especially if the legatee is also executor, lb. its relations to domiciliary law, 11. general bequest not an execution of a power, 208-9. exoneration of, 33. • why less specific than land, 341. contingent limitation of, will not affect the estate taken by a trustee, 181. securities for debt are in equity only chattels, 177. PEB STIRPES, next of kin claiming, 226. PLANTATION, meaning of the word in Ohio, 82. PLANTATIONS in the West Indies, a devise of, carries stock with it, 62. PLEDGE of specific legacy, 341. POLICY under "debts," 73, POSSESSION at law belongs to him who has the legal estate, 185. aliter in equity, 185. qu, whether some of the registry acts do not give even the legal estate to the first registered owner or incum- brancer, 185. POSSIBILITY, if coupled with an interest, is devisable, 19. if bare, is not devisable in some States, 20. upon a possibility, illegal, 145. this doctrine examined, lb. POSTHUMOUS CHILD, rights of, 7, 360. has the rights of a child, 311. POSTPONEMENT of vesting, 265. See Vesting. of payment does not enlarge class of beneficiaries, 291. POWER to appoint by will, 9. See Appointment. 472 INDEX. POWER— Continued. three kinds of, 306. suspension and extinguishment of, 206. may be both appendant and collateral, lb. peculiar legal value of, 206. when in trust, cannot be suspended or extinguished, 207. if discretionary, and fairly exercised, not interfered with by the court, 207, 217. if general, is not a trust, 207. may be reserved in deed of bargain and sale, or covenant to stand seized, 207, note, but a general power cannot be reserved in a coven- ant to stand seized, lb. aliter in a will, 207. executed after covenant not to do so, 208. the case of Learned v. Tallmadge appears to have been decided on sound principles, 208. order of priority of various powers, 208. when executed by a general devise, 208. of married women, 13, 14, 208, 253. not executed by a general bequest of personalty, 209. Qu. ? as to realty in those States where devises speak only from date of testator's death, 209. to executors to sell does not convey any estate to them, 209. of sale by implication, 210, 211, of sale to several is well executed by the sole acting exec- utor, 211. if subject to conditions, these must be complied with, 211. of sale attached to a life estate does not give a fee, 88. to general devisee, of disposition generally, gives a fee, 88. aliter, if he only takes a life estate, until he appoints to him- self in fee, 88. if discretionary and unexecuted, is totally inoperative, 216. donee of, may take jointly with the objects of the power, 227. of selection distinguished from power of distribution, 225-6. exercisible by will only, 225. executed by the court among a class, 'per capita; 226. appointments under special, 175. if in trust, or of selection, is rarely void for uncertainty, 45. period for exercising, 158. grant of a power precludes presumption of a feeor fee tail, 121. INDEX. • 473 POWER OF SALE not a perpetuity, 378, 383. implied in a direction to pay debts, 179. PREAMBLE, effect of, 63. PRECATORY TRUST, questions of, are rare under deeds, 211, 212. explained, 211 et seq. by implication distinguished from a trust power, 21 2, 228. rule of precatory trusts stated, 213. law of, is in a state of transition, 213. requires three elements of certainty, 213, 216. tendencies of the courts respecting, 216, 217. elucidates testamentary difficulties, 216. English law of, 219, 220. authorities relating to, 221. terms of request, 221 et seq. what expressions raise, 221. do not raise, 222, 224. as to definiteness of subject matter, 223. See Trust. PRECEDENTS are paramount to all supposed rules of law or con- struction, 23. « PREMISES," meaning of the word, 65. PRESUMPTION, what kind of, is open to parol evidence, 160. that personalty is primary fund for payment of debts, 231. how rebutted, 232. need not be strictly necessary, 163. but must be strong, Ih. favors next of kin as well as heir, lb. as to when a will speaks, 17. that testator speaks with reference to the State of his per- sonalty at the time of his death, 330. respecting double legacies, 330 et seq. of ademption, 365. that testator foresees change in the law, 297. that a legal title is better than a ooritractual one, 298. that a testator did not mean to provide for lapse, 205. against revocation, 6. in favor of a joint tenancy, 131. vested and common law interests, 139, 141. of equity, as to double gifts, 34. conclusive as to the estate taken by trustees, 174. PRIMARY GIFT, relations of, to ulterior limitations, 415. PRIMARY LIABILITY, when created by statute, 236-7. 474 ^ INDEX. PRINCIPAL, bequest of, does not carry interest, when, 71. PRINCIPLES OF PUBLIC POLICY cannot be controlled by tes- tator, 32. PRIORITY ofvarious powers, 208. PROBATE, is conclusive of the testamentary character of the docu- ment proved, 9. is not conclusive as to ultimate rights pf the parties, 9. statutory courts of, in United States and England, 9. jurisdiction of, 9. PROCEEDS of sale, bequest of, 164. are personalty in the case of an absolute conversion, 164. part excepted from, belongs to heir or residuary devisee, 164. PRODUCE, a gift of produce is a gift of the fund itself, 91. PROMISSORY NOTES pass under "money," 70. "PROPERTY," meaning of the word, 61, 69. PUNCTUATION, how far a guide to the construction, 28. is no guidte, if it is itself the source of difficulty, 29. PURCHASE, distinguished from descent, 299. estate by, is better than one by descent, 93. estates by, in America, 182. example of heir taking by, 176. words of, in Kentucky, 104. PURCHASER, liability of, for debts, 243. liable to look to the application of purchase money, if debts are 'specified, 287. Aliter, if the charge is general, 237. the heir a purchaser in New York, 102. Q. QUASI ENTAIL, what is a, 93. in personalty, 152. may be barred, how, 21, 109, 110. , E. READING of will to testator is not indispensable, 55. « READY MONEY," meaning of the phrase, 70. « REAL CHARGES," what are, 244, 342. REAL ESTATE. See Realty, Fee Simple. 7 INPEX. 475 "REALTY." See Personaltt.' is sometimes read " personalty," 59. real and personal terms may be rendered convertible by context, 59. passes under general words, 62. principles for construing will of, 17, 35. semhle, is not placed to all intents on the same footing as personalty, as regards the statutes that make wills speak from testator's death, 51, 52. appointed under a general devise, lb. will of, 7, 9, 10. probate of, 9. by what court to be granted, 9. how construed, 10. its legal relations to domicil, 10, 11. is subject to rule in Shelley's case and in Wild's case, 101. settlements of, are construed differently from those of per- sonalty, 119 et seq. a joint tenancy is presumed in realty more readily than in personalty, 134. exoneration of, in cases of mortgage, 231 et seq. wh^n administered pari passu with personalty in discharge of debts, 243. sometimes the sole fund for payment of debts and real . charges, 244. in case of election by foreign heir, 250. devise by married woman, 13, 14. RECITAL in will is an estoppel, 249. may pass as interest, 172. even when false, 172. RECOVERY is the means for changing an entail into a fee, 101. effect of a, 113. RE-ENTRY, conditions for, are very useful, 268. REGISTRATION prevents tacking, and deprives the legal estate of all value, 185. is notice to all the world, 185. « RELATIONS " means next of kin according to the statute of distri- bution, 320. but never includes husband, or wife, or relatives by- affinity, 320. 476 INDEX. RELATIONS— Continued. meaning of the word further considered, 321, 322. " near," " deserving," " poor," 321 . a gift to " poor relations " is sometimes construed as a char- itable use, 321. power of selecting, 322. distributing amongst, 322. relatives or connections, 323. EELIGIOUS USES, what are, 411 et aeq. how far recognized by the Constitution, 411. examples of, 410 et seq. REMAINDER described, 138. distinguished from an executory interest, 138, 139. incidents of, in New York, 138. ' is either vested or contingent, lb. examples of these, lb. presumption in favor of, 139. law of, important even under wills, 139. defect of, may be provided for, 139. not bound by acts of particular tenant, 162. when not accelerated, if preceding estate is void, lb. under a devise " to A. at twenty-one, and if he die under age, to B." the heir takes until A. attains twenty-one, 162. relations of, to particular estate, 162. cannot be too remote, 115. may have been intended by testator to be destructible, sed qu., 181. this question affects the estate taken by trustees, 181. none after a vested entail of personalty, 151. construed here as in England, 182. of an annuity, 91. when vested, 256. See Cross-Remaindkrs. cross-remainders explained, 144. cross-remainders may be implied between more than two, 144. reasons for the contrary opinion, 145. the implication of cross-remainders is not affected by any statutory meaning of the word " issue," 144. REMITTER, what is a, 109. INDEX. 477 REMOTENESS. See PERPETtJiiT. explained, 374 et seq. of limitations after a general failure of issue, 168. rule as to, stated, 118, 119 e< seq.. See Void Gifts. cannot afTact remainders after an estate tail, 114. RENEWABLE LEASES, likely to become general here, 21. RENT, a devise of, is equivalent to a devise of land, 345. power to pay gives legal estate, 175. may be reserved on a grant in fee, 267. RENT CHARGE, by a tenant in tail is void after his death, 108. estate in, is, in equity, only a chattel, 177. mortgages, rents charge, and other securities for money are chattels in equity, 177. " RENTS AND PROFITS," equivalent to land, 61, 88. authorizes a sale, 89. bhange in the law on this point, 89. RENTS IN ARREAR, what are, 71. REPRESENTATIONS, in Connecticut, 312. in North Carolina, 312. "REPRESENTATIVE." See Legal Representative. primary meaning of, is administrator, 306. REPUBLICATION of will by codicil, 5. under New York revised statutes, 9. REPUGNANCY, in a deed, 118. is differently construed from that in a will, 118. of clauses, how- sought to be remedied, 35 et seq. REQUEST, what is a legal, 221. RES QESTM, domicil is part of, 12. provable by parol evidence, 186. what is relevant evidence of, 186. RESIDUARY BEQUEST, comprises lapsed and void bequests, 349. given by what words, 349. sometimes means only a particular legacy, 350. RESIDUARY DEVISE, does not comprise lapsed or void devises, 346.- except by statute, 347. rebuts implication, when, 169. accompanied with a particular devise, 170. not favored, 170. distinguished from an implied life estate in personalty, 171. RESIDUARY LEGATEE, must answer the, description in will at the time of testator's death, 290. 478 INDEX. « EESIDUE " meaning of, 73, 74. ■what passes under, lb. comprises lapsed and void bequests, lb. result of a failure of a portion of, 74. -qu.? as to America, lb. abatement of, 74. of realty, 164. will not pass by a general bequest of personalty, when, lb.' qu.? does this rule hold in America, lb. retains its original character, in cases of conversion for special purposes, 164. rights of devisee of, 164. may pass defeasible fee, 87. rights of tenant for life of, 152 sed qu. of certain stocks is a general legacy, 339. courts lean to the vesting of, 264. " to be divided," 257. " to be divided after youngest child attains age," 184. RESULTING TRUST arises, when, 160 et seq. ■ question of, sometimes difficult, 160. under a trust to pay debts, 166. not open to parol evidence, Jb. where declared trusts are inapplicable to all the property, 84, 161. or are not co-extensive therewith, 161. doctrine of, is the converse of implication, lb. arises, unless the construction is clear to the contrary, 161. from a direction to convert, 157 ei seq. of realty, if there is a devise of such, but the trusts are in- applicable, 84. from a gift void for uncertainty, 227. « REVERSION," meaning of the word, 61, 227. devise of, expectant on estate tail, 125. difficulty as to, Jb. REVISED STATUTES of New York, 346. do not apply to previous or foreign wills, 9. republication under, 9, of Massachusetts, 346. REVOCATION, partial, by codicil, 6. implied, 6. not caused by a contract to sell, 6. INDEX. 479 REVOCATION— Continued. by transfer, 6. in Pennsylvania and Delaware, 6. in Ohio, Indiana, Illinois, and Connecticut, 7. under New York revised statutes, 6, 8. in the other States, 7. RIGHT HEIRS. See Heir. Inteodcotion to Part I, RULE of law, what is, 24. distinguished from one of construction, 266. RULE in Shelley's case, reason of, 93, 131. "^ discountenanced in America, 21. States in which it prevails, 102. has been abrogated, 102. as to the words " son," " child," " family," 103, 104. " to A. for life, and after his death to his children," the children take by purchase, 104, 105. in England, 107. has been sometimes indiscreetly substituted for a py pres construction, 36. is an exception to third class of remainders, 93. summary thereof, Ih. an estate by purchase is more valuable than one under the rule, 94. has little operation in America, 93. is only a rule of construction, not of law, 93. applies to shares in certain companies, 94. and to personalty, 94, perverted in Perrin v. Blake, 95. is still perverted in England, 96 et seq, not in America, 96 et seq. precluded by a superadded limitation to different heirs, 96. not by a tenancy in common, 96. Jarman's opinion as to, qu. ? 97. in deeds, 98. applies to equitable estates, 98. and partly to executory trusts, 98, 99. under direction, "as counsel shall advise," 99. is stronger in wills than in marriage articles, 99. • not controlled by words of distribution in settlements of personalty, 153. aed qu. in the United States generally, 96 et seq. does not apply, unless both particular estate and remainder are both legal or both equitable, 176. 480 INDEX. SAILORS' wills, how construed, 33. SALE, power of, 209 et seq. in New York, 211. not a perpetuity, 378, 382. implied in a direction to pay renewal fines, when, 238. implied in a direction to pay debts, 179. fund for payment of debts, 243. SECONDARY sense of phrases, when only adopted, 245. " SECURITIES for money," meaning of the phrase, 71, 72. does not pass a legal estate, 187. SECURITY by tenant for life, 340. taken upon the sale of land is personalty and belongs to executor, 164. SEISIN, when only a momentary seisin is taken by trustees, 176. its relations to appointments, and rule in Shelley's case, 95. SEPARATE USE. See Trust fob Separate Use, 286. will of property settled to, 14. " SERVANTS," what are, 323. comprises only domestics hired at a yearly stipend, 324. SETTLEMENTS of personalty, 151 et seq. how to be framed, lb. SHARE, when first share becomes payable, the whole fund must be distributed, 292. unless the context is to the contrary, 292. in certain companies are subject to rule in Shelley's case, 94. See Lbgaot, Land, Devise. " SHARES," will not comprise a policy of insurance, 72. « SON " is a word of purchase, 307. but is often construed as a word of limitation by force of the context, 307. SPECIFICALLY, meaning of the word, 74. See Legacy. SPECIFIC CHARGE lapses for benefit of heir, 347. SPECIFIC DEVISE, all devises of land are specific, 345. effect of recent legislation on this rule, 346. may be residuary, 346. followed by a change of interest, 346. SPECIFIC DEVISEE taking only a partial interest, 347. SPECIFIC LEGACY explained and illustrated, 331 et seq. when alternative, 337. not favored in construction, 333, 337. points to date of will, 18. INDEX. 481 SPECIFIC LEGACY, points to date o{ wiXl— Continued. hence arises the doctrine of ademption, 18. conversion and ademption of, 18, 19, 840. distinguished from a gift of " all personalty," 341. STATES vary as to laws of testamentary capacity, 14. STATUTE MERCHANT, estate by, 178. STATUTES of Englatid, if old, public, and general, obtain. here, 1. , declaratory of common law, 3. of most of the States require wills to be in writing, 3. analogous to 1 Vict, c. xxvi, prevail in several States, 3. what statute governs "wills, 8. of wills, 13, 17, as to " dying without issue," 128, 129. STIRPES. See Per Stirpes. STOCKS may pass under "money," 69. per stirpes explained, 324 et sej. STRANGER postponed to next of kin in a doubtful case of con- struction, 34. cannot take advantage of breach of a condition subsequent, 271. « SUBJECT TO DEBTS," construction of, in England and the United States, 232. SUBSTITUTIONAL GIFT to heir, 424. indicated by the word " or," 425, not necessarily contingent, 257. legacies to children are construed in a peculiar way, 290. "SUCH ISSUE," different in effect, from issue, 309-10. explanation of, 126. SUGGESTIONS to testamentary draftsmen, 426. for assimilating law of personalty to that of realty, 67. See Issue, " Dying without -Issue." SUPPLYING WORDS, in what sense this is done, 40 ei seq. SUPREME COURT of the United States, its principles of adjudi- cation, 23. SURPLUS, meaning of the word, 218. when held by trustee for his own use, 160. belongs to the heir, when, 161. " SURVIVOR," three leading questions respecting the legal effect of this word, 189 et seq. Rule in Ferguson v. Dunbar, 189. 482 INBEX. "SUEVIVOE," Rule in Ferguson v. Dunhar— Continued. its inconvenience, 191. is an exception to the rule that allows cross-re- mainders, 191. has been weakened by late decisions in England, 192. though not in America, Jb. how aiTected by a collateral contingency, 192. Rule ought to be changed, 192. construed too technically, 191. is sometimes construed "other," 193, 196. reason for this construction, lb. when used with reference to a class as a word of limitation, 194. in Pennsylvania, 194. gift to, does not carry accrued shares, 195, of a class,. 195. rights of, to accrued shares, 196. period for ascertaining the survivor, 197 ei se'q. under a tenancy in common, 197. after an estate for life, 198. reason why the testator's death was regarded as the period for computing survivorship, 198. survivorship may be computed in four diiferent ways, 198. different results of these modes of computation, 199. under a bequest, as distinguished from a devise, ] 99, 200. where there is a substitutional bequest, 200. or a contingency, 200—2. limitation to, in order to prevent lapse, 201. of children, 202-3, 205. survivorship when shown to be indefinite, 203. results of the cases, 203. doctrines respecting survivorship likely in the future to be much discussed in America, 203. meaning of the term in New York, 204. when executor of a deceased legatee, 205. how survivorship is computed in America, 296. income undisposed of under limitation to, 168. what are children of a " surviving grandchild," 170. a gift to the survivor of several persons does not necessarily give estates to all by implication, 171. INDEX. 483 T. TACKING, explanation of, 185. TAIL, joint tenancy in, impossible, when, 93. See Tewant in Tail. TECHNICAL PHRASEOLOGY, construction of, 37. is construed technically, if context is silent on the point, 24. TENANCY BY ENTIRETIHS, incidents of, 133. TENANCY IN COMMON, by what words weated, 136. lapse or invalidity of a gift in common operates for the benefit of the heir, 137. aliter in cases of joint tenancy, lb. in equity, 133, 135. held to be inconsistent with rule in Shelley's case in America, 95. aliter in England, 96. exists in equity among persons who contribute unequally to a joint undertaking, 134. TENANT who has not attorned to assignee of reversion, 185. TENANT FOE LIFE, of chattels, 142. consumable by use, lb, after an estate tail, 122. of a specific legacy, 339. rights and duties of, 339, 340. TENANT IN COMMON cannot defeat an express right of sur- vivorship, 197. implied beneficiaries under a power of distribution, are tenants in common, 228. gift to individuals as tenants in common lapses pro tanto on the death of a beneficiary, 229. when is there not a lapse, 228. See Power, Illusoet Appointment. TENANT IN FEE cannot be prevented from assigning, 29. • subject to an executory devise is still entitled to curtesy, &c., 143. TENANT IN TAIL, words for creating, by will, 110. cannot be prevented from disentailing and selling the land, 29. sometimes mistaken for a tenant in fee simple, 112. general nature of an estate tail, 108 et seq. in America, 116, 117. has no devising power, 108. 484 INDEX. TENANT IN TAIL— Continued. cannot encumber, 108. how differs from tenant in fee, Jb. may bar the entail by fine or recovery, 108. distinctions between these two modes of convey- ance, 108. three classes of charges by — void, voidable, and indefeasi- ble, 109. • by levying a fine confirms his previous incumbrances, 109. settlements by, 109. words for creating by deed, 109, 110. other conditions for constituting, 109. special or male, 110. has unlimited power to commit waste, 110. rights and duties of, 110, 117. after possibility, &c., can never acquire fee by recovery, 101. of personalty has the whole interest, lb. TENANT j>ar autre vie, cannot create an entail, 109. but only a quasi entail, Jb. TENANTS BY ENTIRETIES, what are, 93. TENEMENT, meaning of the word, 60. does not pass a fee, 85. TERM of 'years described, 177. indefinite terms to trustees, 177. all interests created out of terms of years are chattels also, 182. vests primarily in the executor, 21. TESTAMENTARY draftismen, suggestions to, 426. law of America and England, 3. power of bankrupt, 120. power in New York, 19,76, 85. TESTATOR presumed to know contents of will, 54, 55. this presumption shifts if he was of weak mind, 54. who has not read will, is still bound thereby, 55. TIME means a reasonable period, when, 158. TRANSFER, revocation by, 6. TRANSPOSITION. See Words. of words, 35. when allpwed, 37 et seq. at law and in equity, 34. INDEX. 485 TRUST. See Trustee, Eesulting Trust, Praud, Equity, Con- struction. when satisfied, legal estate for, is valueless, 185-6. trustee compelled to discharge trusts, 186. an illegal secret trust may be proved by parol, 186. unless it be subsequent to the making of the will, 186. may be engrafted on will by parol, when, 9. if bare, is not within the statute of descents of New Jersey, 304. TRUSTEE takes legal estate, when, 174 et seq., 177. to pay rents, 175. " to permit A. to receive rents," 175. " to pay or permit," &c., 175. taking legal estate only during the life of the particular tenant, 176. takes sometimes only a term during the minority of cestui que trust, 176. to preserve contingent remainders, holds the legal estate, 176, 179. ■ " unto and to the use of," 177. test of extent of estate of trustees, 174, 177. takes only a term under a trust for debts, when, 177; may take a fee under a general devise, 177. takes a determinable fee, when, 177. takes legal estate, when, 174 et seq. takes only a momentary seisin, when, 176. estate of, is affected by there being contingent renw,inders in in the will, 181. when the property is personal, lb. estate taken by, under limited trusts, with powers of sale or leasing, 179. no fee taken by, when, 179. the question of the estate taken by, under will, is construed liberally, 179. when empowered merely to convey the fee, 179. estate taken by trustees to preserve contingent remain- ders, 179. for limited purposes, with power to appoint the fee, 180. to appoint the fee, has an executory power, 180. express fee of, reduced by context, 177. devise of land to trustees and their heirs, with power of sale, does not necessarily gi ve them the fee, 1 60. 486 INDEX, TRUSTEE— Continued. estate of, in Maine, 181-2. in the States generally, 182. American law as to the estate taken by trustee, coincides with that of England, 182. also as to uses and remainders, lb. and nearly so as to limitations by way of pur- chase, lb. law of, has been recently much altered in England, 184. this legislation has led to decisions that are of use here, 185. questions respecting the estate taken by trustee, are more important in England than here, 185. not allowed to abuse his discretion, 186. not deprived of a fair discretion, 186. ' test of the estate taken by, 174. semble, under special powers, takes, a power of curator- ship, 175. with a discretion to convert, 157. discretion of, as to income for maintenance, 224. discretion of, iq cases of conversion, 158. TRUSTEE TO PRESERVE CONTINGENT REMAINDERS, , use of this limitation, 139. TRUST ESTATES should be in joint tenancy, 131. TRUST FOR SEPARATE USE, is usual jn America, 286. what words will create, 286. not create, 286. the appointment of a trustee for, is unnecessary, 287. < for a man is void, 287. TRUST-POWER. See Power, Trust. implies a gift in default of appointment, 129. U. UNCERTAINTY. See Description, Misdescription, False De- monstration, Parol Evidence. what is, 223. in the late eases has been open to parol, in most instances, 44, 223, 225. is usually powerless to defeat a gift by will, 43 et seq., 369 et seq. of description of subject or object, 43, 45 et seq. sometimes leads to a failure of the gift, 44. IKBEX. ' , 487 UNCERTAINTY— Continued. arising from misdescription, 371. examples of, 225, 372. of object, 373. when curable by parol, 374. resulting trust under cases of, 227. does not apply to objects of a charitable use, 228, 401. seeming, but not real, 370, 371. UNDUE INFLUENCE. See Fkaud. by a stranger distinguished from that by a relative, 54. American rule as to, 54. clause void on account of undue influence may not affect rest of will, 55. aliter, in certain cases, lb. USES. See Charitable Uses, Trustee, Perpetuity. what uses alone are executed by the statute, 414. their relations to devises, 173. what interests are not within the statute of, 175. construed in America as in England, 182. UTENSILS, what pass as, 72. V. VEJStTRE SA MERE, 311. See Posthumous Child. VERMONT has a statutory system of conveyance, 103. VESTED INTEREST, its incidents, 259. definition of a vested remainder, 254. sometimes means vested in possession, 254, 259. after failure of issue, 255. distinguished from contingent interests, 254, 255, 259. courts incline to hold interests vested, 256. an estate when not, 256. VESTING, in civil law, different from ours, 261. is not suspended by the postponement of division until a future period, 262. of interests in land, 254 et seq. devise after payment of debts does not postpone, 256. of charges of portions, 258. does not prevent disclaimer, 259. of legacies charged on land, 259. general rule, 259. when postponed, lb. if payment is dependent on a contingency, this renders the legacy contingent, 262, 488 • IIJDEX. VESTING— Continued. indicated by a gift of interest meantime, 262. " to A. ' upon,' ' at,' ' -when,' or ' if ' he attain age or marry," is contingent, 62. the question in such cases is whether the gift and time of payment are distinct, 262. - implied in accumulation, 263. to A. " when the youngest child attains ■twenty-one," post- pones vesting until then, 263. not affected by requiring proof of identity, 263. may not be in legatee's lifetime, 263. not affected by a charge on gift, 263. VOID CLAUSE does not necessarily invalidate remainder of will, 33. VOID DEVISE, when comprised in a residuary devise, 346-7. VOID GIFT, 369 et seq. gifts are at present rarely void for uncertainty, 369. effect of, on will, 33, 55. principle of this rule, 55. VOLUNTARY SOCIETY, what is a, 45. W. WIDOW, rights of, to personalty, 247. rights of, how affected by a gift of personalty, 248. in Illinois, 246. in Massachusetts, 245. presumed to elect in favor of will, 245. ^WIFE, whatisa, 323. WILD'S CASE, rule in, 36. is an exception to rule in Shelley's ease, 101. prevails in America, 101. is not applied to after-born ohildten, if those living at the time of the will shall die, 314. WILL. See Construction, Lkoact, Realty, Personalty, Power, Trust. suggestions for drawing, 426 et seq. must in most States be written, 3. is governed in most States by statutes analogous to 1 Vict. c. xxvi, 8. defined and explained, 4. distinguished from a deed, 4, 27. may in some States consist of any document, such as a re- ceipt for stock, note, bond, &c., 4. INDEX. 489 WILL — Continued. need not he read to testator, 55. effect of, being numbered in sections, 41. parol evidence respecting the date and other res gesia of, 4, 49, 58, lis. See Index to Part I., Passim. made during the civil war, 16. of alien, 14, 16. gift to foreign corporation under a, 16. date by which it is construed, 16. now regulated by statute in most States, 16. speaks from testator's death, in what States, 17, 347. speaks from date, in what States, 17. effect of, in English law, has been varied by construction in some States, J7. what may be disposed of, by, 19. by joint tenant, 21. I principles for construing will of land, 17, 35, 75 et seq. of land wa§ not allowed at common law, 35, of land not owned by testator, 20. passes after acquired land, when, 21, may be construed partly as a deed, 27. intention of testator to be looked for more liberally than under a deed, 27. of sailor, 32. uncertainty m, 43 et seq. governed by same law as uncertainty in deed, 47, 49. construction of, not controlled by 'accident, 52. ©f personalty is construed according to the civil law, 264. of realty according to the common law, 264-5. of personalty in New York, 259. last clause in, prevails, 39, 302. effect of void clause in, 33, 55. if revoked, cannot be afterwards read in aid of construction, 58. may be annulled, but not reformed, by parol evidence, 58, and codicil »re one instrument within the meaning of the ' rule in Shelley's case, 94. how affected by the rule in Bhelley's case, 92 et seq. is construed as a use, 135. proof and record of, in New York, 259. 490 INDEX. WILL — Continued. by husband and wife, 5. republication of, by codicil, 5. effect of, on legacies, adeemed or satisfied, 5. revocation of, by feme sole, 7. revocation of, under New York revised statutes, 6, 8. revocation of, in the various States, &, 7, 8.- in respect to a conflict of laws, 8. containing gift to witness, 400. State laws, respecting, 400. WITHOUT ANTICIPATION. This clause in the case of a male is void, 287. in the case of a female is valid, 286—7. WITNESS, effect of gift to, on will, 400. devise to, 15. or to husband, wife, or child of, 16. its relations to validity of will, 15. competency of, how afiected by ademption, 15. WOEDS, general effect of, 63. are to be understood in their primary sense, as a rule, 28. when only is a secondary sense allowable. Fart 1, 103, 106. primary meaning of, is alwaya controlled by context, 59. are taken strongly against the grantor ip a will as in a deed, 26. alteration of, 38 etseq^. supplied by construction, 40 e< sey., 171. but sparingly, 41 . transposition ol^ 26, 34, 35, 37 et seq. when not allowed, 35. See Unceetaintt, Void Gift, Transposition, Paroi. Evidence. what is necessary for transposition of, 37. expunging, 36, 37, 39 ef seq. if technical, are construed technically, 36. mistakes in use- of 37. of uncertain signification, 45 ef seq. Y. YOUNGER CHILD, what is a, 25, 313. becoming elder, 313. rights^f, 341. KF 755 W66 c.l Author Wigram, Sir James Vol. Title Copy A Treatise on extrinsic evidence in aid of the int e rpr e tation of wills Date Borrower's Name fimsm ■