CHAPTER IV.

OF CONSTRUCTION.

SECTION I.

Of general Rules in the Construction of Wills.

THE grand maxim in the construction of wills in law and equity (for the rules are the same in both, and the latter has no greater latitude in this respect than the former) is, that the Court is bound to find out the intention of the testator, if it be possible so to do, however inartificially the will may be expressed; and to make such a construction as will effectuate that intention." This is often a most difficult task; for as Lord Northington remarks, it is is the fate of all courts of justice upon wills to be the authorized interpreters of nonsense, and to find the meaning of persons that had no meaning at all. The intention is to be collected, not from any particular or detached clause of the will, but from the whole taken together, and from any codicil which forms a part of it. Every word is to have its effect, provided an effect can be given to it not inconsistent with the general intent of the whole will taken together: for a testator is not to be supposed to have used words without meaning, if it is possible to give them a consistent meaning; and the rule is, not to reject any words, unless there can not be any rational construction of those words as they stand. Where there

a

* 2 Ves. 74. Gilb. Eq. R. 88. 1 Bl. 377. 5 Ves. 805.

b1 Ed. 43. Wilm. 233. Willes, 3. e 2 Ed. 4.

a1 Roll. Rep. 319. 2 Bulstr. 178. Wilm. 233. 9 East, 272. 4 Ves. 329. 5 id. 818. 6 id. 102. 8 id. 306. 10 id. 203. 1 B. & B. 480.

fore there was a devise to the use of the said Thomas B. and his assigns for life," and after his decease to the use of the said Thomas B., son of my nephew S. B., his heirs and assigns for ever;" and Thomas B. the son of S. B. was the only person of that name previously mentioned in the will, but the testator left also a nephew of the name of Thomas B.: the Court thought the inconsistency of giving an estate for life, and also an estate in fee to the same person was not sufficient to authorize the rejection of the word "said;" and consequently that the nephew Thomas B. had no claim.2.

If however the words can not be reconciled some may be rejected; as may also loose general words. Thus in a bequest to be equally divided between A., B., and C. and their heirs or the survivor of them in the order they are now mentioned: the latter words were rejected as unmeaning. On the other hand the Court may supply words if it appear necessary to do so to effectuate the intention. If two parts of a will are totally irreconcilable, Lord Alvanley said he knew of no rule but by taking the subsequent words as an indication of a subsequent intention.f

g

Every inaccuracy of grammar, and every impropriety of terms shall be corrected if the intention be clear and manifest; although a greater latitude of construction is perhaps allowable in an inaccurate will drawn by the testator himself, than in one more accurate. Nor is it necessary to take all the words

a Chambers v. Brailsford, 18 Ves. 368. 19 Ves. 652. 2 Mer. 25.

1 Ves. 14. 2 id. 279.
Hob. 65. 6 Mod. 112.
Smith v. Pybus, 9 Ves. 566.

e

See Doe v. Micklem, 6 East, 486. f 5 Ves. 247. 6 id. 102; and see 18 id. 421. 1 Swanst. 163. Touch. 88. 4 Ves. 311; and see 1 Mer. 651. b 5 Ves. 804; and see 5 T. R. 721.

in the order that they are, as the Court will range them in a different order, and transpose them to comply with the intention. But in no case, where the words are plain and sensible, is a transposition to be made in order to create a different meaning, and construction; much less to let in different devisees and legatees: nor where a former clause is express and particular, shall a subsequent one enlarge it. And the construction in the first instance must be according to the ordinary rules of grammar; for where the bequest was to "all and every the child and children of my late cousin E. L. and my cousin P. F., and their lawful representatives:" this was held to be a gift to P. F. himself, and not to his children; for otherwise the word "of" must be understood; whereas the words as they stood had a plain grammatical sense, viz.: to the children of E. L., and to P. F. himself."

In trying the meaning of phrases in a will the Court may look at all the circumstances, in which it might have been called upon to determine the meaning of the same phrases, applied to a different state of circumstances. Arguments, says Lord Thurlow, from supposition of what a testator would have done, if he had been aware of all circumstances, are not very good grounds for giving a construction; but they may be fairly used to assist a dubious floating construction.

When the words of two devises are different the

b

more natural conclusion is, that as the testator's expressions are varied, they were altered, because his intention in both cases was not the same." Thus where a legacy of stock was given to A., in terms that rendered it doubtful whether it was intended that A. should take an absolute or a life interest; but the testator had given another legacy of stock to B. "during his natural life:" this was thought a circumstance whence a difference of intention might be collected; and A. therefore was held entitled to the absolute interest. So in a gift of the residue to a woman for her own use and benefit, which it was contended gave her a separate estate: the ViceChancellor observed, that the testator, as to the same person with respect to another gift, had appointed a trustee, and expressly directed the application of it to her sole and separate use; he knew, therefore, the technical form of excluding the right. of the husband; and the Court could not infer that, as to this legacy, he intended what he had not expressed.

A will speaks quoad the real estate from the time of making it; quoad the personal from the death of the testator.d Yet it is said that the construction (at least with regard to legatees and to specific legacies) is to be made as matters stood at the time of making

a 9 East, 273. 11 Ves. 546. 19 id. 537.

Rawlings v. Jennings, 13 Ves. 39. Baddeley v. Leppingwell, Wilm. 228. Hack v. Tuck, 3 Swanst. 270. Bayley v. Bishop, 9 Ves. 6.

Wills v. Sayers, 4 Mad. 409; and see Saunders v. Drake, 2 Atk. 465. Hearle v. Greenbank, 3 id. 714. Hodgson v. Rawson, 1 Ves. 44. Ar

nold v. Chapman, id. 108. Ellison
v. Airey, id. 111. Harland v. Trigg,
1 Bro. 142. Billings v. Sandom,
post S. 2.
Longdale v. Bovey, 2
Anstr. 570. Chester v. Painter, 2 P.

W. 335.

d2 Ed. 161. 2 Mer. 537. 1 B. & B. 542. 1 Sim. & St. 294; and see Att. Gen. v. Heartwell, 2 Ed. 234. Ambl. 451.

the will: so that if a man bequeaths to another all
his debts, this will only include debts then due: or
if he gives his black gelding, and afterwards sells it
and buys another black one, this latter will not pass.
It is clear that if the words are sufficient to show
that the testator intended only to give what he had
at the time, the bequest will have that limited effect.
But the general rule that the time of the testament,
and not the testator's death is regarded, admits of a
variety of distinctions and exceptions: a will may
speak at different times for different purposes; and
we have already seen in the course of this treatise
instances in which its operation has been sometimes
referred to its date, and sometimes to the death of
the testator.f

Bufice Stume A codicil, we have observed, is part of a will,
In both making but one testament; and hence where a
189. Early
Below 264 man bequeathed the residue of his estate among such

L

of his relations only as were mentioned in that his will; and afterwards by a codicil gave legacies to two relations, whom he had not noticed in his will: Lord Commissioner Eyre held these two persons entitled to a share in the residue. But this decision seems at best doubtful. It is added in the report that the other Lords Commissioners hesitated a good deal at this extension of the word "will." Lord Hardwicke, in a previous case somewhat similar, taking the same distinction as Lord C. Eyre between the testament,