most striking instance of it is perhaps the doctrine of general and particular intention. As now interpreted in the sense that technical words must have their legal effect, this doctrine would be identical with the modern doctrine that a testator must mean what he has said, were it not for the survival of the older doctrine in the so-called rule in Shelley's case. In this application of it, the rule is not simply that technical words must have their legal effect, but that technical words must have their effect notwithstanding the strongest and clearest expression of intention on the part of the testator short of an express interpretation clause, that the words were not used technically. That a devise to a man for life with remainder to his heirs should give the ancestor the immediate fee, must always remain incomprehensible to common sense, however satisfactorily the learned may be able to trace the origin of the rule in a state of things long gone by. The rule in Shelley's case is in fact a disgrace to the rational spirit of English law, and it is to be hoped that it may soon be abolished by the Legislature, as it has long since been in America. Another and more recent instance of an attempt to establish hard and fast rules of construction may be found in the rules laid down in Edwards v. Edwards. In all probability Lord Romilly only intended those rules to be convenient heads for arranging decided cases, and so far as they accurately extracted the ratio decidendi of those cases, they were very valuable. But, in course of time, they came to have a value independently of the cases upon which they were based, and there can be no doubt that the so-called fourth rule which was laid down in terms more general than decided cases justified, came to be applied to new cases ab extra without much consideration of the language of the particular testator. The consequence was the sacrifice of the wishes of the individual to the certainty of the law; and had not a decision of the House of Lords intervened to reduce the rule within its proper limits, there would have been another instance of language meaning one thing to a layman and a totally different thing to a lawyer. So far then it may be said there are no rules of construction but only decided cases. A testator can only mean what he has said, and his meaning is to be gathered by a careful study of the language he bas used. On the other hand, admitting all this, it does not therefore follow that the construction of a will is to be left entirely to the discretion of the individual judge, unfettered by precedent or authority, though occasional dicta of judges might be cited in support of such a position. The principles of law applicable to the construction of wills must be the same as those applicable to other matters. Law is no more than the expression of the meaning of the acts of men in their relations with one another, when viewed by the most enlightened common sense of the day. There is no abstract law to be applied like a foot rule to facts; but law is the facts viewed in their natural bearings with reference to each other. It follows that, if the facts are the same, the same consequences ought to be deduced from them. The difficulty consists in discovering whether the facts are the same or not. In one sense, no doubt, the facts never are absolutely identical. There must at least be a difference of time, and this in itself, considering the continuous change in social life, is an important factor. But the question is not whether the facts are absolutely identical, but whether a fresh set of facts can be fairly distinguished from an earlier set. If not, judges have always considered themselves bound by the interpretation put upon such facts by their predecessors; and when there have been repeated adjudications upon similar sets of facts, by a process of analysis and classification, rejecting immaterial distinctions and selecting essential points of similarity, what may be called a rule of law is established. But rules of law in this sense as distinguished from rules of policy, or from rules of law established by legislative enactment, only mean that the Courts have taken a particular view of a certain set of facts, and will do so again if similar facts arise. This process is inevitably subject to a twofold danger; a strong judge will be more likely to distinguish cases, he will look upon precedent as a guide and not as a master. A judge of a less independent spirit will dwell more upon resemblances, he will be more anxious to shelter himself under authority. The inclination of the one to adapt the law to the changing conditions of life has the accompanying disadvantage of unsettling it, while the other tends to make the law antiquated, though he leaves it certain. No doubt in the case of wills there is this dis tinction. The facts here are the words employed by the testator, and since language is a much more adequate instrument for conveying subtleties of meaning than any other form of expression, the facts are of necessity exceedingly complex. It is more unlikely that undistinguishable sets of facts have already been adjudicated upon in the case of wills than in any other branch of law; but if they have been the subject of decision, a Court of co-ordinate jurisdiction is as much bound by those decisions in the cases of wills as in any other branch of law. The frequent dicta, therefore, to be found in the reports against citing cases upon the construction of wills only come to this, that it is useless to cite cases which have no application, and that in all probability the cases cited will be found to have none. Even with regard to this latter point it will not be safe to be too confident. Cases of construction are so numerous, originality even in "nonsense" is so rare, that there will nearly always be similar cases, or, at any rate, cases instructive even by their distinguishability. The present work has been written from the point of view which I have thus endeavoured to indicate. Wherever rules of construction are spoken of in the following pages, the meaning is, that certain words have received a particular interpretation by the Courts, and that words not reasonably distinguishable will receive the same interpretation when they occur again, in other words, that certain rules of construction will prevail in the absence of an intention to the contrary. The rules of construction here discussed are, or, |
