ture children of persons having none at the time of the devise; for if these presumptions are to be considered as founded upon the intention of the testator, such intention in the case last supposed must be inferred as provisionally and in prospect contemplating the possible alternative of the objects of the devise being two and no more, or above that number, and calling for a different construction as the event may shape the case.

SECTION VI.

By what words an Estate for life only will pass.

IT seems to be a safe and fundamental principle in the construction of wills, that it shall be made according to the rules of the common law in respect to estates limited or conveyed by deeds, unless there is something clearly to be collected from the will itself disclosing a different intention in the testator (1). And it will be useful as a check upon the zeal sometimes discovered for executing the supposed intention of a testator, to remember Lord Chancellor Harcourt's

(1) Carth. 5. per Bridgman, C. J. who cites Wild's case, 6 Rep. 16. in support of the position.

observation in Bale v. Coleman, that "the intent which ought to govern must be a certain and manifest intent, and not an arbitrary one; it must be according as it appears upon the will, and according to the known rules of law;-it is not to be left to a latitude, and as it may be guessed at.” (2)

General rules for the construction of wills.

(2) The following general rules respecting the construction of wills seem to be pretty steady in their application.-The construction of wills must be the same in courts of law and equity, 1 Bl. Rep. 377. Words tending to disinherit the heir at law, will not have that effect, unless the estate is completely devised to another. Dougl. 763. The common expression in the books that an heir shall not be disinherited, except by express words, or necessary implication, is incorrect: the proper terms of the rule are, that the intent of the testator ought to appear plainly in the will itself, otherwise the heir shall not be disinherited. Moon d. Fag v. Heaseman, Willes, 141. And where there is no ambiguity it has long ago been said by great authority, that a devisee is as much favoured as an heir at law. 6 Mod. 133. 2 Vern. 340. per Holt C. J. in Falkland v. Bertie. The order of words is not to be regarded, but a transposition may be made to render a limitation or disposition sensible, Hob. 75. Spark v. Purnell, 2 Vez. 32. East v. Cook, id. 74. Duke of Marlborough v. Lord Godolphin, id. 248. and see Brice v. Smith, Willes, 1. In respect to which a court of equity has no more power than a court of law. And this can only be done to come at the meaning of the testator, and not to alter or affect the operation of the devise: it ought never to be done where the words are plain and sensible, much less to let in different devisees or legatees in a will: for to do that would be to make a new will, ibid. et vid. 2 Leon. 165. Blackler v. Webb, 2 P. Wms. 384. Repugnant words may be rejected, Boon v. Cornyforth, 2 Vez. 278. Cole v. Rawlinson, 2 Lord Raym. 831. The devise of a trust is to be construed in the same manner as that of a legal estate, and not to be varied by subsequent accidents. Atkinson v.

there are

If there are no expressions in a will giving Where in direct terms an estate of inheritance, nor any no words giving an plain grounds for inferring an intention to give inheritance such estate, nothing passes away from the heir at grounds for law beyond an estate for life. Therefore, as before has been observed, a devise of land to a person ge- do, the de

or plain

inferring

an intention so to

Hutchinson, 3 P. Wms. 259. The intent of the testator is to be the rule of construction if the words will bear it out; but if the force of the words be such that the intent cannot be complied with, the rule of law must take place, Brownsword v. Edwards, 2 Vez. 248. Loose, general, and doubtful words may be rejected as surplusage, where they oppose a plain precedent devise, or the broad and manifest intent of the testator. Hob. 65. 6 Mod. 112. Wills should be so construed as to preserve estates in the intended channel of descent, Cro. Car. 185.1 Leon. 285. 2 Vez. 615. 2 Str. 798. Effect ought to be given, if possible, to the whole will, and a codicil is to be considered as part of it, Gray v. Minethorpe, 3 Vez. Jun. 105.; and a construction may be made to support the intention upon the whole will even against strict grammatical rules, 11 Vez. Jun. 148. But an express disposition cannot be controuled by inference, Collett v. Lawrence, 1 Vez. Jun. 269. Words of desire are of imperative obligation, if the object be certain, Eccles v. England, Prec. in Ch, 200. Harland v. Trigg, 1 Bro. C. C. 142. Pierson v. Garnett, 2 Bro. C. C. 38.; unless there is plainly a discretion intended to be given, Cunliffe v. Cunliffe, Ambl. 686. Morris v. the Bishop of Durham, 10 Vez. Jun. 522. If a testator uses technical phrases he must be supposed to understand them, unless by other parts of the will he manifests the contrary, Phillips v. Garth, 3 Bro. C. C. 60. Green v. Howard, 1. Bro. C. C. 31. 3 Bro. C. C. 234. And, primâ facie, words must be understood in their legal sense, unless a contrary intent plainly appear,, Holloway v. Holloway, 5 Vez. Jun. 401. It is an universal rule, that words having an obvious construction, are not to be rejected upon a suspicion that the testator did not know what he meant by them, Milner v. Slater, 8 Vez. Jun. 295. If a testator expresses himself incorrectly the court will supply proper words, if the meaning distinctly appear, Dodson v. Hay, 3 Bro. C. C.

A

b

visee takes nerally disposes of nothing but an estate for the life

only an es tate for

life.

of the devisee, and the addition of the word 'assigns' will not enlarge it. Accordingly, if a man devise in the following manner*, "I devise Black Acre to

Fairfax v. Heron, Prec. in Ch. 68.

* Vin. Abr. tit. Dev. (Q. a). But if a man devise Black Acre to one in tail, and also White Acre, the devisee will have an estate tail in White Acre also, for this is all one sentence, ibid. And so it has been held that if in the first clause no devisee is named, as where a testator says, "Item, I give the manor of D., Item, I give the manor of S. to J. K. and his heirs," this shall be referred to both the manors, and J. K. will have the fee in both. Ibid.

404, Doe d. Leach v. Mecklem, 6 East, 486. But mistakes in a will are never to be intended if a reasonable construction can be found out, Purse v. Snaplin, 1 Atk. 415. General words will be controuled to render the whole will consistent, Whitmore ». Trelawney, 6 Vez. Jun. 129. Where there is no connection by grammatical construction, or by direct words of reference, or by the declaration of some common purpose, between distinct devises in a will, the special terms of one devise cannot be drawn in aid of the construction of another, though in its general terms and import it may be similar, and apply to persons standing in the same degres of relationship to the testator, Wright ex dem. Compton v. Compton, 9 East, 267. In trying the meaning of phrases used in a wil all circumstances may be looked at, in which the court might have been called upon to determine the meaning of the same phrases applied to a different state of facts, Earl of Radnor v. Shafto, 11 Vez. Jun. 457.

Every word ought to have an effect if possible, and not inconsistent with the general intention, which if manifest is to controul, Blandford v. Blandford, Roll. R. 319. Constantine v. Constantine, 6 Vez. Jun. 100. The general words of a will may be restrained in cases where it appears that the devisor did not intend to use them in their general sense, Strong v. Teate, 2 Burr. 912. and Doe on

my daughter F. and the heirs of her body begotten; Item, I devise to my said daughter White Acre;" the daughter shall have but an estate for life in White Acre; for the word 'item' has not the force of the words in the same manner,' or 'in formâ prædictâ,'

dem. Reade . Reade, 8 T. R. 118.; but the safest course is to abide by the words; unless upon the whole will there is something amounting almost to demonstration, that the plain meaning of the words is not the meaning of the testator, 9 Vez. Jun. 205. In every will there is a tacit condition both in law and equity, that whoever would derive a benefit under it must acquiesce in the whole of it, however disjointed the parts, Molyneux v. Scott, 1 Bl. Rep. 377.

Croke, Justice, laid down three rules which, he said, if observed, would open all the doors in every will: 1st. No will ought to be construed per parcella but by the entirety; 2d. No contrariety or contradiction to be admitted; 3d. No nugation, nor any thing nugatory ought to be in a will; 2 Bulst. 178.

The same word in different parts of the same will should be construed in the same sense, Whitmore v. Lord Craven, 2 Ch. Ca. 169. unless the general intention calls strongly for a difference of construction; and sometimes they may have a different force as applied to different subjects, Forth v. Chapman, 2 Vez. 616. It is an ordinary rule that where a former clause in a will is express, positive, and particular, a subsequent clause shall not enlarge it, Roberts v. Kiffin, Barn. C. R. 261. Constructions of wills shall be made according to estates at common law by deed, unless something in the intent of the will appear to the contrary, Carth. 5. per Bridgman, C. J. cites 6 Rep. 16. Wild's case. Wills in general are construed from the making, unless circumstances, or the tenor of them, shew that the construction should be from the death, but the intermediate time is not to be regarded, 1 Vez. 295.

The intention of a testator must be construed in consistency with the rules of law, so as not to be considered as intending to limit a fee upon a fee; or to create a perpetuity; to make a chattel descendible to heirs; to put the freehold in abeyance; or to