The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface By the American Editor.
• A Memoir of Sir William Blackstone,
• Introduction. of the Study, Nature, and Extent of the Laws of England.
• Section I.: On the Study of the Law. †
• Section II.: Of the Nature of Laws In General.
• Section III.: Of the Laws of England.
• Section IV.: Of the Countries Subject to the Laws of England.
• Commentaries On the Laws of England.
• Book the First. of the Rights of Persons.
• Chapter I.: Of the Absolute Rights of Individuals.
• Chapter II.: Of the Parliament.
• Chapter III.: Of the King, and His Title.
• Chapter IV.: Of the King’s Royal Family.
• Chapter V.: Of the Councils Belonging to the King.
• Chapter VI.: Of the King’s Duties.
• Chapter VII.: Of the King’s Prerogative.
• Chapter VIII.: Of the King’s Revenue.
• Chapter IX.: Of Subordinate Magistrates.
• Chapter X.: Of the People, Whether Aliens, Denizens, Or Natives.
• Chapter XI.: Of the Clergy.
• Chapter XII.: Of the Civil State.
• Chapter XIII.: Of the Military and Maritime States.
• Chapter XIV.: Of Master and Servant.
• Chapter XV.: Of Husband and Wife.
• Chapter XVI.: Of Parent and Child.
• Chapter XVII.: Of Guardian and Ward.
• Chapter XVIII.: Of Corporations.
• Book the Second. of the Rights of Things.
• Chapter I.: Of Property, In General.
• Chapter II.: Of Real Property; And, First, of Corporeal Hereditaments
• Chapter III.: Of Incorporeal Hereditaments.
• Chapter IV.: Of the Feodal System.
• Chapter V.: Of the Ancient English Tenures
• Chapter VI.: Of the Modern English Tenures.
• Chapter VII.: Of Freehold Estates of Inheritance.
• Chapter VIII.: Of Freeholds, Not of Inheritance.
• Chapter IX.: Of Estates Less Than Freehold.
• Chapter X.: Of Estates Upon Condition.
• Chapter XI.: Estates In Possession, Remainder, and Reversion.
• Chapter XII.: Of Estates In Severalty, Joint-tenancy, Coparcenary, and Common.
• Chapter XIII.: Of the Title to Things Real, In General.
• Chapter XIV.: Of Title By Descent.
• Chapter XV.: Of Title By Purchase and I. By Escheat.
• Chapter XVI.: II. Of Title By Occupancy.
• Chapter XVII.: III. Of Title By Prescription.
• Chapter XVIII.: IV. Of Title By Forfeiture.
• Chapter XIX.: V. Of Title By Alienation.
• Chapter XX.: Of Alienation By Deed.
• Chapter XXI.: Of Alienation By Matter of Record.
• Chapter XXII.: Of Alienation By Special Custom.
• Chapter XXIII.: Of Alienation By Devise.
• Chapter XXIV.: Of Things Personal.
• Chapter XXV.: Of Property In Things Personal.
• Chapter XXVI.: Of Title to Things Personal By Occupancy.
• Chapter XXVII.: Of Title By Prerogative and Forfeiture.
• Chapter XXVIII.: Of Title By Custom.
• Chapter XXIX.: Of Title By Succession, Marriage, and Judgment.
• Chapter XXX.: Of Title By Gift, Grant, and Contract.
• Chapter XXXI.: Of Title By Bankruptcy.
• Chapter XXXII.: Of Title By Testament, and Administration.
• Appendix.
• No. I.: Vetus Carta Feoffamenti.
• No. II.: Modern Conveyance By Lease and Release.
• No. III.: An Obligation, Or Bond, With Condition For the Payment of Money.
• No. IV.: A Fine of Lands Sur Cognizance De Droit, Come Ceo, &c.
• No. V.: A Common Recovery of Lands With * Double Voucher.

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

The last method of conveying real property is by devise, or disposition contained in a man’s last will and testament. And, in considering this subject, I shall not at present inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded.

It seems sufficiently clear, that, before the conquest, lands were devisable by will.(a) But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lord.(b) And some have questioned whether this restraint (which we may trace even from the antient Germans)(c) was not founded upon truer principles of policy than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; since it rarely happens **374]that the same man is heir to many others, though by art and management he may frequently become their devisee. Thus the antient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality and preventing the accumulation of estates. But when Solon(d) made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others: which, by a natural progression, first produced popular tumults and dissensions; and these at length ended in tyranny and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses, (which are the natural consequence of free agency when coupled with human infirmity,) to debar the owner of lands from distributing them after his death as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety, by preventing the very evil which resulted from Solon’s institution, the too great accumulation of property; which is the natural consequence of our doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulation the ill effects were severely felt even in the feodal times: but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extension of trade.

However this be, we find that, by the common law of England since the conquest, no estate, greater than for term of years, could be disposed of by testament;(e) except only in Kent, and in some antient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted.(f) And though the feodal restraint on alienations **375]by deed vanished very early, yet this on wills continued for some centuries after: from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious.(g) Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descent is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property.

But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the land, uses began to be devised very frequently,(h) and the devisee of the use could in chancery compel its execution. For it is observed by Gilbert,(i) that, as the popish clergy then generally sat in the court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer: and therefore at their death would choose to dispose of them to those who, according to the superstition of the times, could intercede for their happiness in another world. But, when the statute of uses(j) had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable;1 which might have occasioned a great revolution in the law of devises, had not the statute of wills been made about five years after, viz., 32 Hen. VIII. c. 1, explained by 34 Hen. VIII. c. 5, which enacted, that all persons being seised in fee-simple2 (except feme-coverts,3 infants, idiots, and persons of non-sane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the Second, amounts to the whole of their landed property, except their copyhold tenements.

Corporations were excepted in these statutes, to prevent the extension of gifts in mortmain; but now, by construction *[*376of the statute 43 Eliz. c. 4, it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment rather than of a bequest. And indeed the piety of the judges hath formerly carried them great lengths in supporting such charitable uses;(k) it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes,(l) and supplies all defects of assurances:(m) and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will,(n) and a devise (nay, even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment.(o)

With regard to devises in general, experience soon showed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance; for so loose was the construction made upon this act by the courts of law, that bare notes in the handwriting of another person were allowed to be good wills within the statute.(p) To remedy which, the statute of frauds and perjuries, 29 Car. II. c. 3, directs, that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence and by his express direction; and be subscribed, in his presence, by three or four credible witnesses.4 And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent;5 as likewise impliedly, by such a great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child.(q)6

In the construction of this last statute,7 it has been adjudged that the testator’s name, written with his own hand, at the beginning of *[*377his will, as, “I, John Mills, do make this my last will and testament,” is a sufficient signing, without any name at the bottom;(r) though the other is the safer way.8 It has also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times.(s) But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument.(t) And, in one case determined by the court of King’s Bench,(u) the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney, whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues, (and these are the persons most likely to be present in the testator’s last illness,) and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and the credit of such legatees, by declaring void all legacies9 given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court *[*378and jury before whom such will shall be contested. And in a much later case(v) the testimony of three witnesses who were creditors was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination were said to be insufficient.10

Another inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. and M. c. 14 hath provided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void: and that such creditors may maintain their actions jointly against both the heir and the devisee.11

A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject: with this difference, that in other conveyances the actual subscription of the witnesses is not required by law,(w) though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead: but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will.(x)12 Wherefore no *[*379after-purchased lands will pass under such devise,(y) unless, subsequent to the purchase or contract,(z) the devisor republishes his will.(a)13

We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are,

1. That the construction be favourable, and as near the minds and apparent intents of the parties as the rules of law will admit.(b) For the maxims of law are, that “verba intentioni debent inservire;” and “benigne interpretamur chartas propter simplicitatem laicorum.” And therefore the construction must also be reasonable, and agreeable to common understanding.(c)

2. That quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est:(d) but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui hæret in litera, hæret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso.(e) And another maxim of law is, that “mala grammatica non vitiat chartam;” neither false English nor bad Latin will destroy a deed.(f) Which perhaps a classical critic may think to be no unnecessary caution.

3. That the construction be made upon the entire deed, and not merely upon disjointed parts of it. “Nam ex antecedentibus et consequentibus fit optima interpretatio.”(g) And **380]therefore that every part of it be (if possible) made to take effect: and no word but what may operate in some shape or other.(h) “Nam verba debent intelligi cum effectu, ut res magis valeat quam pereat.”(i)

4. That the deed be taken most strongly against him that is the agent or contractor, and in favour of the other party. “Verba fortius accipiuntur contra proferentem.” As, if tenant in fee-simple grants to any one an estate for life, generally, it shall be construed an estate for the life of the grantee.(j) For the principle of self-preservation will make men sufficiently careful not to prejudice their own interest by the too extensive meaning of their words: and hereby all manner of deceit in any grant is avoided; for men would always affect ambiguous and intricate expressions, provided they were afterwards at liberty to put their own construction upon them. But here a distinction must be taken between an indenture and a deed-poll: for the words of an indenture, executed by both parties, are to be considered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, because the other party hath given his consent to every one of them. But in a deed-poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him.(k)14 And, in general, this rule, being a rule of some strictness and rigour, is the last to be resorted to; and is never to be relied upon, but where all other rules of exposition fail.(l)

5. That, if the words will bear two senses, one agreeable to, and another against, law, that sense be preferred which is most agreeable thereto.(m) As if tenant in tail lets a lease to have and to hold during life, generally, it shall be construed to be a lease for his own life only, for that stands with the law; and not for the life of the lessee, which is beyond his power to grant.

**381]6. That, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received, and the latter rejected;(n) wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand.(o) Which is owing to the different natures of the two instruments; for the first deed and the last will are always most available in law.15 Yet in both cases we should rather attempt to reconcile them.(p)

7. That a devise be most favourably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have emitted the legal or proper phrases. And therefore many times the law dispenses with the want of words in devises that are absolutely requisite in all other instruments. Thus, a fee may be conveyed without words of inheritance;(q) and an estate-tail without words of procreation.(r)16 By a will also an estate may pass by mere implication, without any express words to direct its course. As, where a man devises lands to his heir-at-law, after the death of his wife: here, though no estate is given to the wife in express terms, yet she shall have an estate for life by implication;(s) for the intent of the testator is clearly to postpone the heir till after her death; and, if she does not take it, nobody else can.17 So, also, where a devise is of black-acre to A. and of white-acre to B. in tail, and if they both die without issue, then to C. in fee; here A. and B. have cross-remainders by implication, and on the failure of either’s issue, the other or his issue shall take the whole; and C.’s remainder over shall be postponed till the issue of both shall fail.(t) But, to avoid confusion, no such cross-remainders are allowed between more than two devisees:(u)18 and, in general, where any implications are allowed, they must be such as are necessary (or at least highly **382]probable) and not merely possible implications.(w) And herein there is no distinction between the rules of law and of equity; for the will, being considered in both courts in the light of a limitation of uses,(x) is construed in each with equal favour and benignity, and expounded rather on its own particular circumstances, than by any general rules of positive law.19

And thus we have taken a transient view, in this and the three preceding chapters, of a very large and diffusive subject, the doctrine of common assurances: which concludes our observations on the title to things real, or the means by which they may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connections of the persons entitled to hold them: we have examined the tenures, both antient and modern, whereby those estates have been, and are now, holden: and have distinguished the object of all these inquiries, namely, things real into the corporeal or substantial and incorporeal or ideal kind; and have thus considered the rights of real property in every light wherein they are contemplated by the laws of England. A system of laws, that differs much from every other system, except those of the same feodal origin, in its notions and regulations of landed estates; and which therefore could in this particular be very seldom compared with any other.

The subject which has thus employed our attention is of very extensive use, and of as extensive variety. And yet I am afraid it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding book. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise, and which have been heaped one upon another for a course of seven centuries, without any order or *[*383method; and the multiplicity of acts of parliament which have amended, or sometimes only altered, the common law: these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour principally to select such parts of it as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers as were before strangers even to the very terms of art which I have been obliged to make use of; though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages, which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of Sir Edward Coke:(y) —“Albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him no way discourage himself, but proceed: for on some other day, in some other place,” (or perhaps upon a second perusal of the same,) “his doubts will be probably removed.”

[(a) ] Wright of Tenures, 172.

[(b) ] See page 57.

[(c) ]Tacit. de Mor. Germ. c. 21.

[(d) ] Plutarch. in vita Solon.

[(e) ] 2 Inst. 7.

[(f) ] Litt. 167. 1 Inst. 111.

[(g) ] Glanv. l. 7, c. 1.

[(h) ] Plowd. 414.

[(i) ] On Devises, 7.

[(j) ] 27 Hen. VIII. c. 10. See Dyer, 14[Editor: illegible character]

[1 ] This is not quite correct. By means of a limitation to such uses as the owner should by his will appoint, the land might have been, and frequently is, devised, notwithstanding, or rather by the aid of, the statute of uses, and independently of any statute of wills, in the same manner as copyholds were made devisable by means of a surrender.—Sweet.

[2 ] As copyholders and customary tenants whose interest passes by surrender are not seised in fee-simple, and do not hold their lands in socage, it follows that they cannot make a devise under this statute; nor need the requisites of it be observed, (7 East, 299 and 322,) unless the terms of the surrender require the will to be signed. Id. ibid. 2 P. Wms. 258. 2 Atk. 37.—Chitty.

[3 ] Where lands are conveyed to trustees, a married woman may have the power of appointing the disposition of lands held in trust for her after her death, which appointment must be executed like the will of a feme sole. 2 Ves. 610. 1 Bro. 99. And though the contrary has been held, yet it has been determined by the house of lords that the appointment of a married woman is effectual against the heir-at-law, though it depends only upon an agreement of her husband before marriage, without any conveyance of the estate to trustees. 2 Ves. Sen. 191. 6 Bro. P. C. 156. 2 Eden. 239. 1 Bro. P. C. 486, S. C. Amb. 565. 2 Roper’s Hus. and Wife, 180. See the valuable note to 1 Hoveden’s Supplement to Ves. Jr. Rep. 21. Where there is a power to charge lands for the payment of debts, or for a provision for a wife or younger children, a court of equity will decree a will, though not executed according to the statute, a good execution of the power. Scho. & Lefr. 60. 1 Dick. 165.—Christian.

[(k) ] Ch. Prec. 272.

[(l) ] Gilb. Rep. 45. 1 P. Wms. 248.

[(m) ] Duke’s Charit. Uses, 84.

[(n) ] Moor. 890.

[(o) ] 2 Vern. 453. Ch. Prec. 16.

[(p) ] Dyer, 72. Cro. Eliz. 100.

[4 ] A number which, by the Wills Act, (1 Vict. c. 26,) has been reduced to two.—Kerr.

[5 ] With respect to revocations in general, see 1 Saund. 277 to 279, d. Where a testator, being angry with one of his devisees, tore his will into four pieces, but was prevented from further tearing it, partly by force and partly by entreaty, and afterwards, becoming calm, expressed his satisfaction that no material part was injured, and that the will was no worse, the court held that it had been properly left to the jury to say whether the testator had perfected his intention of cancelling the will, or whether he was stopped in medio; and, the jury having found the latter, the court refused to disturb the verdict. 3 B. & A. 489. But where the testator threw his will into the fire, out of which it was snatched by a bystander and preserved without the testator’s knowledge, the will was held to be cancelled. 2 Bla. R. 1043.—Chitty.

[(q) ] Christopher vs. Christopher, Schacch. 6 July, 1771. Spragge vs. Stone, at the Cockpit, 27 March, 1773, by Wilmot, de Grey, and Parker. See page 502.

[6 ] Marriage, and the birth of a posthumous child, amount to a revocation. 5 T. R. 49. In a case where a testator had devised his real estate to a woman with whom he cohabited, and to her children, he afterwards married her and had children by her, it was held these circumstances did not amount to a revocation of the will. Lord Ellenborough, in his judgment, says, “The doctrine of implied or presumptive revocation seems to stand upon a better foundation of reason, as it is put by lord Kenyon, in Doe vs. Lancashire, 5 T. R. 58,—namely, as being ‘a tacit condition annexed to the will when made, that it should not take effect if there should be a total change in the situation of the testator’s family,’—than on the ground of any presumed alteration of intention; which alteration of intention should seem in legal reasoning not very material, unless it be considered as sufficient to found a presumption in fact that an actual revocation has followed thereupon. But, upon whatever grounds this rule of revocation may be supposed to stand, it is on all hands allowed to apply only in cases where the wife and children—the new objects of duty—are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. This, however, cannot be said to be the case where the same persons who, after the making of the will, stand in the legal relation of wife and children, were before specifically contemplated and provided for by the testator, though under a different character and denomination.” 2 East, 530. See 5 Ves. Jr. 656. By the Roman law, if the child born after the will died before the testator, the testament was restored to its force and effect. 2 Domat, 40.—Christian.

Where two wills are found in the possession of the testator, to invalidate the first the second should expressly revoke, or be clearly incompatible with, the first devise; for no subsequent devise will revoke a prior one unless it apply to the same subject-matter. 1 P. Wms. 345. 7 Bro. P. C. 344. Cowper, 87. A devise of real property is not revoked by the bankruptcy of the devisor. The master of the rolls said, “From the moment the debts are paid, the assignees are mere trustees for the bankrupt, and can be called to convey to him.” In this case, all the debts were paid, and the bankrupt had been dead some time. 14 Ves. 580. See, also, as to implied or constructive revocations, 3 Mod. 218. Salk. 592. 3 Mod. 203. 2 East, 488. Carth. 81. 4 Burr. 2512. 7 Ves. Jr. 348. Cowp. 812. 4 East, 419. 2 N. R. 491, and post, “Title by Testament,” 489, et seq.—Chitty.

Formerly, marriage and the birth of a child were considered a sufficient ground for implying the revocation of a will. The stat. 1 Vict. c. 26, s. 19 expressly provides that no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances, but makes marriage an absolute revocation.—Kerr.

[7 ] As to what shall be deemed a sufficient compliance with this act, see 1 Fonblanque on Equity, 193. Phil. on Evid. chap. 8, sect. 8. It is observable that the statute requires that the will shall be in writing; but it should seem that it would suffice if in print and signed by the testator. Semble, 2 M. & S. 286.

It next requires that the will shall be signed by the testator or some other person in his presence and by his express direction. The first case in which this question was raised was Lemayne vs. Stanley, 3 Lev. 1, 1 Eq. Ca. Abr. 403, in which case it was determined that, if the testator write the whole of the will with his own hand, though he does not subscribe his name, but seals and publishes it, and three witnesses subscribe their name; in his presence, it is a good will; for his name being written in the will, it is a sufficient signing, and the statute does not direct whether it shall be at the top, bottom, &c. But, from the case of Right Lessee of Cater vs. Price, Doug. 241, it may be inferred that the above decision will apply only to those cases where the testator appears to have considered such sufficient signing to support the will, and not to those where the testator appears to have intended to sign the instrument in form; and Mr. Christian, in his edition of Blackstone, 2 vol. 377, n. 5, properly observes that writing the name at the beginning would never be considered a signing according to the statute unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator’s assent to it if the subscription of his name in his own hand is not subjoined. And see Powell on Devises, 63. In the case of Right vs. Price, the will was prepared in five sheets, and a seal affixed to the last, and the form of attestation written upon it, and the will was read over to the testator, who set his mark to the two first sheets, and attempted to set it to the third, but being unable, from the weakness of his hand, he said he could not do it, but that it was his will; and on the following day, being asked if he would sign his will, he said he would, and attempted to sign the two remaining sheets, but was not able Lord Mansfield observed that “the testator, when he signed the two first sheets, had an intention of signing the others, but was not able: he therefore did not mean the signature of the two first as the signature of the whole will. There never was a signature of the whole.” See also 4 Ves. Jr. 197. 9 Ves. 249. And if it appear upon a will of personal estate that something more was intended to be done, and the party was not prevented by sickness or death from signing, this declaration at the beginning is not sufficient. 4 Ves. 197, n. 9 Ves. 249. But where a will, written on three sides of a sheet of paper and duly attested, concluded by stating “that the testator had signed his name to the two first sides thereof, and his hand and seal to the last,” and it appeared he had put his hand and seal to the last only, omitting to sign the two first sides, it was held that the will was well executed, as his first intention was abandoned by the final signature made by him at the time of executing the will. 5 Moore, 484. 2 Bro. & Bing. 650, S. C. So where the testator had executed such a will, but some years afterwards made various interlineations and obliterations therein, but which was neither resigned, republished, nor reattested, but a fair copy was afterwards made, in which he added one interlineation not affecting his freehold estate, but the copy was never signed, attested, or published, and the will and copy were found locked up in a drawer together, it was held that there was no revocation of the will as it originally stood, the alterations, &c. being merely demonstrative of an intention to execute another never carried into effect. Id. ibid. The testator’s making a mark at the foot of his will, if intended as a signature, is sufficient. Freeman’s Rep. 538.

The next doubt that occurred upon this point was whether the testator sealing his will was not a signing within the statute; and in 2 Stra. 764, lord Raymond is reported to have held that it was; and of the same opinion three of the judges appear to have been in 3 Lev. 1, on the ground that signum is no more than a mark, and sealing is a sufficient mark that this is his will; but in 1 Wils. 313 such opinion was said to be very strange doctrine, for that, if it were so, it would be easy for one person to forge any man’s will by only forging the names of any two obscure persons dead, for he would have no occasion to forge the testator’s hand. And they said “if the same thing should come in question again, they should not hold that sealing a will was a sufficient signing within the statute.” But in 2 Atk. 176, lord Hardwicke seems to have thought that sealing without signing in the presence of a third witness, the will having been duly signed in the presence of two, would have been sufficient to make it a good will. It was held, in a case where the testator was blind, that it is not necessary to read over the will, previous to the execution, in the presence of the attesting witnesses. 2 New R. 415. The signing of the testator need not be in the presence of the witnesses: it suffices if he acknowledge his signature to each of them. 3 P. Wms. 253. 2 Ves. 454. 1 Ves. Jr. 11. 8 Ves. 504. 1 Ves. & B. 362.

Upon the attestation of a will, many questions have also arisen. The first seems to have been whether the witnesses must attest the signing by the testator; and upon this point, the statute not requiring the testator to sign his will in the presence of the witnesses, it has been held sufficient if the testator acknowledge to the witnesses that the name is his. 3 P. Wms. 253. 2 Ves. 254. See also 2 P. Wms. 510. Comyn’s Rep. 197. 1 Ves. Jr. 11. The next question respecting the attestation was, What shall be construed a signing in the presence of the testator? and upon this point, which first came into consideration in 1 P. Wms. 740, lord Macclesfield held that “the bare subscribing of a will by the witnesses in the same room did not necessarily imply it to be in the testator’s presence, for it might be in a corner of the room, in a clandestine fraudulent way, and then it would not be a subscribing by the witness in the testator’s presence merely because in the same room; but that here, it being sworn by the witness that he subscribed the will at the request of the testatrix and in the same room, this could not be fraudulent, and was therefore well enough.” So, in the case in 2 Salk. 688, the testator having desired the witnesses to go into another room, seven yards distant, to attest it, in which room there was a window broken, through which the testator might have seen, the attestation was held good, for that it was enough that the testator might see the witnesses signing, and that it was not necessary that he should actually see them. See also 3 Salk. 395. And lord Thurlow, in 1 Bro. C. C. 99, relying upon the authority in 2 Salk. 688, inclined to think a will well attested where the testatrix could see the witnesses through the window of her carriage and of the attorney’s office. But the above cases turned upon the circumstance of the testator being in a situation which allowed of his seeing the witnesses sign: if, therefore, he be in a position in which he cannot see the signing, it seems such attestation would not be a compliance with the statute. Carth. 79. Holt’s Rep. 222. 1 P. Wms. 239. 2 Show. 288. And in the case in Comyn’s R. 531 it was determined that the question whether present or not was a fact for the consideration of the jury, upon all the circumstances of the case. See also Stra. 1109. And if the jury find that the testator was in a situation where he could not see the witnesses, the will is not duly attested, (1 M. & S. 294;) and if the testator were at the time of attestation insensible, though the witnesses signed in his presence, it is not a good attestation. Doug. 241.

It seems also to have been a question whether the witnesses should not attest the will in the presence of each other. But it was determined, very soon after the statute, that though the witnesses must all see the testator sign, or acknowledge the signing, yet that they may do it at different times, (Anon. 2 Ch. Ca. 109. Freem. 486. Cook vs. Parson, Prec. Ch. 185. Jones vs. Lake, cited 2 Atk. 177. Bond vs. Sewell, 3 Burr. R. 1773;) and the acknowledgment by the testator to one of the witnesses, who did not see him sign, is good. See Addy vs. Grix, 8 Ves. 504. Ellis vs. Smith, 1 Ves. 11. As to the attestation by a marksman, see Harrison vs. Harrison, 8 Ves. 185. It is not necessary that the witnesses should in their attestation express that they subscribed their names in the presence of the testator; but whether they did or not so subscribe is a question for the jury. 4 Taunt. 217. Willes Rep. 1.

Where there is a power to charge lands for the payment of debts, or for a provision for, a wife or younger children, a court of equity will decree a will, though not executed according to the statute, a good execution of the power, (Sch. & Lef. 60. 1 Duk. 165;) and the defective execution of wills, in exercise of a power, is remedied by the 54 Geo. III. c. 68.—Chitty.

[(r) ] 3 Lev. 1.

[8 ] I conceive that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator’s assent to it, if the subscription of his name in his own hand is not subjoined.—Christian.

See Doug. 241. 1 Meriv. 503. The will is now required to be signed at the foot or end thereof. Stat. 7 W. IV. and 1 Vict. c. 26, s. 9.—Sweet.

But now, by the statute 1 Vict. c. 26, the testator’s signature must be at the foot or end of the will, and must be made by him, or by some other person by his direction in his presence; and such signature must be made or acknowledged by him in the presence of two witnesses present at the same time, and they must attest and subscribe in the presence of the testator. But no particular form of attestation is necessary.

Several questions have arisen on the meaning of the words foot or end of the will; and it has been thought necessary to pass an act (15 Vict. c. 24) to define, as far as may be the meaning of these words. The statute enacts that the signature of the testator shall be deemed valid if the same shall be so placed at, or after, or following, or under, or be side, or opposite to, the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and that no such will shall be affected by the circumstance that the signature shall not follow or not be immediately after the foot or end of the will, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will, whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature. Each of the circumstances enumerated has reference to some actual case in which the ecclesiastical courts had found a difficulty in interpreting the simple words foot or end.—Kerr.

[(s) ] Freem. 486. 2 Ch. Ca. 109. Pr. Ch. 185.

[(t) ] 1 P. Wms. 740.

[(u) ] Stra. 1253.

[9 ] This extends to devises of lands and every interest given to the witnesses. But it has been held that a witness may be rendered competent to prove a will by a release or the receipt of his legacy. 4 Burn Ecc. Law, 97. Pratt, C. J., however, was of the opposite opinion.—Chitty.

[(v) ] M. 31 Geo. II. 4 Burr. i. 430.

[10 ] A person who signs his name as witness to a will, by this act of attestation solemnly testifies the sanity of the testator. Should such witness afterwards attempt to impeach his own act, and to prove that the testator did not know what he was doing when he made (what purported to be) his will, though such testimony will be far indeed from conclusive, (Hudson’s case, Skin. 70. Digg’s case, cited ibid.,) and lord Mansfield held that a witness impeaching his own act, instead of finding credit, deserved the pillory, (Walton vs. Shelley, 1 T. R. 300. Lowe vs. Jolliffe, 1 W. Bla. 366, S. C. 1 Dick. 389. Goodtitle vs. Clayton, 4 Burr. 2225,) yet lord Eldon held that the evidence of such parties was not to be entirely excluded; admitting, however, that it is to be received with the most scrupulous jealousy. Bootle vs. Blundell, 19 Ves. 504. Howard vs. Braithwaite, 1 Ves. & Bea. 208. And Sir John Nicholl has laid it down as a distinct rule that no fact stated by any witness open to such just suspicion can be relied on, where he is not corroborated by other evidence. Kinleside vs. Harrison, 2 Phillim. 499; and see Burrows vs. Locke, 10 Ves. 474.—Chitty.

The statute 1 Vict. c. 26 repeals the act 25 Geo. II. c. 6 (except as it affects the colonies) and re-enacts and extends some of its provisions. It makes void devises and bequests not only to an attesting witness, but to the husband or wife of such witness, and expressly provides that the incompetency of a witness to be admitted to prove the execution of a will shall not render it invalid. The statute further enacts that any creditor, or the wife or husband of any creditor, whose debt is charged upon the property devised or bequeathed by the will, may be admitted to prove the execution thereof as an attesting witness, and that an executor of a will may be admitted to prove its execution,—a point on which some doubts had previously existed.—Kerr.

[11 ] The statute 47 Geo. III. sess. 2, c. 74 enacts that when any person, being at the time of his death a trader, within the true intent and meaning of the laws relating to bankrupts, shall die seised of or entitled to any estate or interest in lands, tenements, or hereditaments, or other real estate, which he shall not by his last will have charged with or devised, subject to or for the payment of his debts, and which before the passing of this act would have been assets for the payment of his debts due on any specialty in which the heirs were bound, the same shall be assets to be administered in courts of equity for the payment of all the just debts of such person, as well debts due on simple contract as on specialty; and that the heir or heirs-at-law, devisee or devisees, of such debtors, shall be liable to all the same suits in equity, at the suit of any of the creditors of such debtors, whether creditors by simple contract or by specialty, as they were before the passing of this act liable to, at the suit of creditors by specialty in which the heirs were bound: provided always that in the administration of assets by courts of equity, under and by virtue of this act, all creditors by specialty in which the heirs are bound shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands.

With respect to the above enactments in the 3 & 4 W. and M. c. 14, see the decisions, Bac. Abr. Heir and Ancestor, F. 1 Chitty on Pl. 4th edit. 42. A devisee as such is liable to be sued at law only in an action of debt, and not of covenant. 7 East, 128. A devise to raise a portion for younger children, according to an agreement before marriage, and a devise for payment of debts, are exceptions in this statute, (see section 4;) but the payment of the debts must be provided for effectually, to bring the case within this exception. 1 Bro. 311. 2 Bro. 614. 7 Ves. Jr. 323.—Chitty.

This statute has been repealed; but the payment of simple contract, as well as specialty debts, out of the real estate of the deceased debtor, has been provided for by other statutes. See 11 Geo. IV. and 1 Wm. IV. c. 47; 3 & 4 Wm. IV. c. 104; and 2 & 3 Vict. c. 60.—Kerr.

[(w) ] See pages 307, 308.

[(x) ] 1 P. Wms. 575. 11 Mod. 148.

[12 ] Lord Mansfield has declared that this does not turn upon the construction of the statute 32 Hen. VIII. c. 1, as some have supposed, which says that any person having lands, &c. may devise; for the same rule prevailed before the statute, where lands were devisable by custom. Cowp. 90. It has been determined that where a testator has devised all his lands, or all the lands which he shall have at the time of his death, if he purchase copyholds after the execution of the will, and surrenders them to the uses declared by his will, they will pass by the will, (Cowp. 130;) or if the testator, after making such a devise, purchase freehold lands and then make a codicil duly executed according to the statute, though no notice is taken of the after-purchased lands, yet if the codicil is annexed to or confirms the will, or, as it seems, has a reference to it, this amounts to a republication of the will, and the after-purchased lands will pass under the general devise, (Cowp. 158. Com. 383. 4 Bro. 2. 7 Ves. Jr. 98;) but if the codicil refer expressly to the lands only devised by the will, then the after-purchased lands will not pass under the general devise of the will. 7 T. R. 482. This also is a general rule, that if a man is seised of an estate in fee, and disposes of it by will, and afterwards make a conveyance of the fee-simple, and take back a new estate, this new estate will not pass by the will, for it is not the estate which the testator had at the time of publishing his will. A man possessed of estates in fee before marriage, in order to make certain settlements upon his wife and children, entered into an agreement, in which he reserved to himself the reversion in fee, which reversion he afterwards disposed of by his will, and after the making of his will be executed proper conveyances for the performance of the marriage-articles in which, after the limitations to his wife and children, he took back the reversion in fee: this was held by lord Loughborough to be a revocation of the will; and his decision was afterwards confirmed by the house of lords, in the case of Brydges vs. Duchess of Chandos, 2 Ves. Jr. 417.

A similar decision was also made in the courts of Common Pleas and King’s Bench, in the case of Goodtitle vs. Otway, 7 T. R. 399. In that case lord Kenyon lays down, generally, “that it is now indisputably fixed, that where the whole estate is conveyed to uses, though the ultimate reversion comes back to the grantor by the same instrument, it operates as a revocation of a prior will.” 7 T. R. 419.

Equity admits no revocation which would not upon legal grounds be a revocation at law. There are three cases which are exceptions to this general rule,—viz., mortgages, which are revocations pro tanto only, a conveyance for payments of debts, or a conveyance merely for the purpose of a partition of an estate. In the two first, a court of equity decrees the redemption or the surplus to that person who would have been entitled if such mortgage or conveyance had not existed,—i.e. the devisee. 2 Ves. Jr. 428.—Christian.

If an estate is modified in a different manner, as where a new interest is taken from that in which it stood at the making of the will, it is a revocation, (3 Atk. 741;) and equitable being governed by the same rules as legal estates, if any new use be limited, or any alteration of the trusts upon which they were settled take place, a devise of them will be revoked. 2 Atk. 579. If A., having devised lands to B., afterwards convey to him a less estate, as for years, to commence from the death of the devisor, this is a revocation of the devise to B., (Cro. Jac. 49;) but a grant only of an estate for years is not a revocation of a devise in fee, (2 Atk. 72;) or if A., after devising in fee, mortgage his lands or convey them in fee to trustees to pay debts, though this is a revocation at law, it is not so in equity, except pro tanto. 1 Vern. 329, 342. See also 3 Ves. Jr. 654.—Chitty.

[(y) ] Moor. 255. 11 Mod. 127.

[(z) ] 1 Ch. Ca. 39. 2 Ch. Ca. 144.

[(a) ] Salk. 238.

[13 ] See most of the cases collected, 1 Saund. 277, n. 4; and see the principle, Gilb. U. & T. 116, 117. 1 Co. 105, 106. 6 T. R. 518. If an estate is given to A. and his heirs, or to A. and the heirs of his body, or any interest whatever to A., and A. dies before the testator, the devise is lapsed and void, and the heirs of A. can claim no benefit from the devise. White vs. White, 6 T. R. 418. 1 Bro. 219. Doug. 330.

A father devised his estate to his eldest son and the heirs of his body, and, upon failure of his issue, to his second son in like manner in tail. The eldest son died before the father, leaving several children; and the father, supposing that the eldest of them would take under the devise, made no alteration in his will. The consequence was that the devise lapsed, and the second son was entitled by the will to an estate-tail in exclusion of the children of the eldest brother, the first objects of the father’s bounty and regard. The court of King’s Bench in Ireland decided in favour of the grandson; but that decision was reversed by the King’s Bench and house of lords here, the question being too clear to admit a doubt. 6 T. R. 518. 1 Bro. 219. Doug. 330.—Christian.

It was long a prevailing opinion that, if a man devised particular lands by name, which he had not at the time, but afterwards purchased, or devised all lands which he should die seised of, that such devises would be valid. And it is curious that chief-justice Saunders, a consummate lawyer, under this impression devised “all lands which he had or afterwards should have in Fulham.” His executors were Holt and Pollexfen, chief-justices, and serjeant Maynard, who differed as to the validity of the devise, the serjeant holding the opinion which is now established, and the two chief-justices that which has been determined not to be law. Lawrence vs. Dodwell, 1 Lord Raym. 438. Holt, however, lived to change his opinion; and the law is now settled as laid down in the text.—Coleridge.

But the statute 1 Vict. c. 26 has abolished this distinction, and all property, of whatever kind, or of which a man is possessed or entitled at the time of his death, passes by his will: as the instrument now, with reference to the real and personal estate comprised in it, speaks and takes effect as if executed immediately before the testator’s death, unless a contrary intention appears by the document itself.—Kerr.

[(b) ] And. 60.

[(c) ] 1 Bulstr. 175. Hob. 304.

[(d) ] 2 Saund. 157.

[(e) ] Hob. 27.

[(f) ] 10 Rep. 133. Co. Litt. 223. 2 Show. 334.

[(g) ] 1 Bulstr. 101.

[(h) ] 1 P. Wms. 457.

[(i) ] Plowd. 156.

[(j) ] Co. Litt. 42.

[(k) ] Co. Litt. 134.

[14 ] But this distinction does not appear to be recognised at the present day, and the rule of construing most strictly against the grantor has frequently been applied to indentures. 1 M. & W. 556. 5 B. & C. 842.—Kerr.

[(l) ] Bacon’s Elem. c. 3.

[(m) ] Co. Litt. 42.

[(n) ] Hardr. 94.

[(o) ] Co. Litt. 112.

[15 ] Such was held to be the law in the time of lord Coke. See, accordingly, 6 Ves. 102. 5 Ves. 247, 407. But now, where the same estate is devised to A. in fee, and afterwards to B. in fee in the same will, they are construed to take the estate as joint-tenants, or tenants in common, according to the limitations of the estates and interests devised. 3 Atk. 493. Harg. Co. Litt. 112, b., n. 1.—Christian.

[(p) ] Cro. Eliz. 420. 1 Vern. 30.

[(q) ] See page 108.

[(r) ] See page 115.

[16 ] In the celebrated case of Perrin vs. Blake, (Burr. 2579,) the question was whether the manifest intention of the testator to give to the first taker an estate for life only ought to prevail, or that he should have an estate-tail from the construction which would have clearly been put upon the same words if they had been used in a deed. The devise in substance was as follows. The testator declared, “It is my intent and meaning that none of my children should sell or dispose of my estate for longer term than his own life; and to that intent I give my son John Williams my estate during his natural life, remainder to my brother-in-law during the life of my son John Williams, (the design of that being to support the contingent remainder,) remainder to the heirs of the body of John Williams.” Lord Mansfield and two other judges of the court of King’s Bench determined that John Williams took an estate for life only; but, upon a writ of error to the exchequer-chamber, the decision was reversed, and six out of eight of the other judges held that John Williams took an estate-tail, which, of consequence, gave him an absolute power of selling or disposing of the estate as he pleased. The discussion of this subject called forth a splendid display of legal learning and ingenuity. Yet it has been observed by a learned judge that, as one of the judges held that John Williams took an estate-tail, because he was of opinion that such might be presumed to be the testator’s intention, no argument in future can be drawn from this case, because one-half of the judges relied upon the ground of intention alone. And the editor entirely concurs with that learned judge that it is the first and great rule in the exposition of wills, and to which all other rules must bend, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law,—that is, provided it can be effectuated consistently with the limits and bounds which the law prescribes. To argue that the intention shall be frustrated by a rule of construction of certain words is to say that the intention shall be defeated by the use of the very words which the testator has adopted as the best to communicate his intention, and of which the sense is intelligible to all mankind. Where technical phrases and terms of art are used alone by a testator, it is fair to presume that he knew their artificial import and signification, and that such was his will and intention; but where he happens to introduce them, and at the same time in effect declares, that I do not intend what conveyancers understand by these words, but my intention is to dispose of my estate directly contrary to the construction generally put upon them, surely courts of justice are, or ought to be, as much at liberty, or rather under an obligation, to effectuate that intention as far as the law will admit, as if he had expressed it in the most apt and appropriate language. 1 Bla. Rep. 672. 4 Burr. 2579. Doug. 329. Fearne, 113. Harg. Tracts, 351, 490.—Christian.

[(s) ] H. 13 Hen. VII. 17. 1 Ventr. 376.

[17 ] But it has been thought that, if it is given to a stranger after the wife’s death, the devise raises no implication in favour of the wife, for it may descend to the heir during the life of the wife, which possibly may have been the testator’s intention. Cro. Jac. 75. And courts of law have laid it down as a rule that the heir shall not be disinherited but by a plain, and not merely probable, intention. Doe vs. Wilkinson, 2 T. R. 209.—Chitty.

[(t) ] Freem. 484.

[(u) ] Cro. Jac. 655. 1 Ventr. 224. 2 Show. 139.

[18 ] The contrary has for some time been fully established; and this has been laid down by lord Mansfield as a general rule, viz., wherever cross remainders are to be raised between two and no more, the favourable presumption is in support of cross-remainders; where between more than two, the presumption is against them; but the intention of the testator may defeat the presumption in either case. Perry et al. vs. White, Cowp. 777, 797. 4 T. R. 710. And the editor conceives that cross-remainders would be raised in every case in which it appears to be the testator’s intention that the subsequent devisee shall take nothing till the issue of all the first devisees are extinct. Cowp. 777, 797. 4 T. R. 710.

In a case where cross-remainders were created by a deed, lord Kenyon declared that “no technical precise form of words is necessary to create cross-remainders,—though in the verboseness of conveyancers an abundance of words is generally introduced in deeds for this purpose.” 5 T. R. 431. But cross-remainders cannot be created in a deed, as in a will, by implication, not even where the ultimate limitation is given “in default of all such issue,” which words would probably create cross-remainders amongst any number in a will. 5 T. R. 521. 1 East, 416.

In a will there may be cross-remainders amongst any number by implication, where it is the manifest intention of the testator, though he has given the estates to the respective heirs of their bodies. 2 East, 36.—Christian.

[(w) ] Vaugh. 262.

[(x) ] Fitzg. 236. 11 Mod. 153.

[19 ] Upon this subject lord Eldon has expressed himself thus:—“In construing a will, conjecture must not be taken for implication, but necessary implication means not natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed.” 1 Ves. & Bea. 466. Therefore, if the devise were to a stranger after the death of the wife, the wife would not take any thing by implication; for then it might as well be supposed that the testator meant his heir-at-law to take during the wife’s life, as the wife; and, where it is so, the obvious title of the heir-at-law will be preferred. Smartle vs. Scholar, 2 Lev. 207.—Coleridge.

A branch of this subject has been treated with consummate ability in Mr. (now Sir James) Wigram’s work on “The Admission of Extrinsic Evidence in aid of the Interpretation of Wills.” The learned author has deduced from the authorities the following seven propositions, which, though he has confined his inquiry to the subject of wills, seem to be equally applicable to the interpretation of deeds and other instruments:—

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 different 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.”

II. “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 when his words, so interpreted, are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.”

III. “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 reference to extrinsic circumstances, a court of law may look into the extrinsic 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 circumstances, they are capable.”

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 understand 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.”

V. “For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to 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 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.”

[In commenting on this proposition, a material fact is defined to be any fact which, according to the ordinary rules of evidence, tends to show which of the propositions II. and III. the circumstances of the case render applicable; in other words, whether the words, being strictly construed, have or have not a definite and reasonable meaning with reference to the actual circumstances.]

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 cases, see prop. VII.) will be void for uncertainty.”

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 certain special cases, admit extrinsic evidence of intention to make 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 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.”—Sweet.

[(y) ] Proeme to 1 Inst.