TITLE XXXVIII. DEVISE. CHAP. IX. Of the Construction of Devises-General Rules. 1. The Intention will be effec- 29. A Perpetuity cannot be tuated. 15. Words rejected or supplied. 18. The word "or" construed "and." created by Will. 34. Construction cy pres. 39. No Averment allowed to ex- 25. Estates sometimes transposed. 43. Unless there is a latent Am26. Contradictory Devises. biguity. SECTION 1. A tuated. WILL being considered as an instrument made TheIntention at a time when the testator cannot have the will be effecassistance of persons skilled in the law, or, as it is usually expressed, when he is inops consilii; the Judges have at all times held that it shall not be construed strictly like a deed, but that the intention of the testator, though not expressed in the proper legal and formal words, shall notwithstanding be carried into effect; it being a maxim of the English law-Quod ultima voluntas testatoris perimplenda est, secundum veram intentionem. 2. It follows that no technical words are necessary to convey a testator's meaning; and whenever that is doubtful, it must be collected from the scope of the whole will, compared with its several parts: for courts 2 Burr. 770. 2 P. Wms. 282. 3 Burr. 1541. 1 Burr. 38. & 14. of justice cannot make a will for the party, nor interpret it by any arbitrary rule: but that mode of construction is to be preferred, which gives effect to every part of the will, so that each word may have its particular operation, and not be rejected, if any construction can possibly be put upon it. S. The intention of the testator must be collected from the whole will, ex visceribus testamenti; so as to leave the mind quite satisfied about what the testator meant. And as a will of lands must be in writing, such collection of the testator's intention must be derived from the will itself; for no averment or parol evidence can be admitted to explain any thing dubious on the face of a will; except in a few instances which will be mentioned hereafter. 4. General words in one part of a will may be restrained by subsequent words, and shall be construed so as not to defeat the intention of the testator, to be collected from any other part of the will; but where infra, c. 12. there is a manifest general intent, the construction should be such as to effectuate it, though by that construction some particular intent may be defeated. 5. The construction ought to be such, that the Doug. 341. intent of the testator may be rendered consistent with the rules of law; for otherwise every man would make a new law to himself; the metes and bounds of property would be vague and indeterminate; which would end in its total insecurity. 2 Burr. 1108. 2 P. Wms. 741. Doug. 341. Cowp. 306. 637. 6. Technical words are presumed to be used in the sense which the law has appropriated to them; unless the contrary appears. But where the intention of the testator is plain, it will be allowed to control the legal operation of the words, however technical. 7. Introductory words often assist in showing the intention of a testator; and in such cases the courts have laid hold of them, as they do of every other circumstance in a will, which may help to guide their judgment to the right and true construction of it. 286. 2 Ves. 616. 8. The particular situation of a testator, the 1 P. Wms. number of his children, the different kinds of pro- 4Bro. R.441. perty whereof he was possessed at the time of making his will, are circumstances from which arguments may be drawn respecting his intention; and it has Doe v. been determined, that the same words may different construction, when applied to different kinds of property. have a Fyldes, Cowp. 833. 473. 9. An heir at law shall not be disinherited by a Prec. in Cha. will, unless there are express words, or a necessary Cowp. 99. implication, to that effect. For the title of the heir being founded on the laws of descent, which are certain, is therefore not to be defeated by an uncertain devise. 10. A dubious expression in a will may be explain- Hayes v. ed by a codicil or schedule, annexed to such will. Foord, 11. Declarations of trusts executed, contained in infra, c. 14. a will, are construed in the same manner as devises of legal estates; but where a conveyance or settlement is directed to be made, a court of equity will construe the will more liberally, in order to effectuate the intention of the testator. 12. In the construction of wills adjudged cases 1 Burr. 233. may be argued from, if they establish general rules of construction, to find out the intention of the tes tator. And where once a court of justice has determined the meaning of certain words, or forms of expression, the same effect will in all future cases be annexed to them; for the great object in questions of property is certainty. And Lord Mansfield has observed, that if an erroneous or hasty determination Hodgson v. has got into practice; there is more benefit derived Ambrose, from adhering to it, than if it were to be overturned. infra, c. 14. Tracts, 295. 13. Mr. Hargrave has justly observed, that if Fearne Cont. courts either of law or equity, in both of which the Rem. 266. 5 Term R. 561. rules of interpretation must be the same, should indulge an unlimited latitude of forming conjectures upon wills, instead of attending to their grammatical or legal construction, the consequence must be endless litigation; every title to an estate, that depended on a will, must be brought into Westminster Hall: for if once we depart from the established rules of interpretation, without a moral certainty that the meaning of the testator requires it, no interpretation can be safe, till it has received the sauction of a court of justice: for how can a client, or a purchaser, be assured that the conjecture of the most able counsel, or the most experienced conveyancer, will be in all points the same as the conjectures of the Judges, or the Chancellor. 14. In a modern case Lord Kenyon said, "Had there not been such a current of authorities as we find in the books, since the passing of the statute of wills, on the construction of wills, to further, as it has been called, the intentions of devisors; perhaps it would have been better that the same strict words had been required in testamentary dispositions of land, as in those by deed; because then the language of passing estates would have been so familiar, that few questions would have arisen on wills. For it has been often observed, that few questions arise on the construction of deeds, when compared to those which daily arise on wills. But we are bound to consider the series of authorities on this subject as the law of the land; and it would be extremely dangerous now, to remove those land-marks of real property, on which mankind have acted for such a length of time." 15. Where there are words in a will which have no Words rejected or supplied, meaning, or which are contrary to the general inten Hawes, tion of the testator, they will be rejected; and, on the other hand, words omitted by mistake, and which Hawes v. are absolutely necessary to effectuate the general in- infra, c. 15. tention, will be supplied. 1745, MS. 16. Sir W. Coryton devised, for the preserving and Coryton v. Helliar, continuing his real estate in his name and blood, all his lands to trustees and their heirs, until his son Rep. John should attain his age of twenty-seven, and no longer, in trust in the meantime out of the rents and profits for paying legacies, and to lay out the residue in the purchase of lands of inheritance, to be settled in the same manner as the rest of his estate; and from and after the determination of the estate limited to them as aforesaid, and the full accomplishment of his son's age of twenty-seven, that his said trustees and their heirs should stand and be seised of all the lands devised to them and their heirs to the use and behoof of his said son John and his assigns, for and during the term of ninety-nine years, without impeachment of waste, and from and after the determination of that estate, to the use and behoof of his said trustees and their heirs, during the natural life of the said John Coryton, for preserving contingent remainders; but nevertheless to permit the said John Coryton to take the profits during his natural life; and from and after his decease, to the use and behoof of the first and every other son of the said John Coryton in tail male; and for default of such issue, to the use of the heirs of the body of the said John Coryton; and for want of such issue, to the use and behoof of his daughter Susanna Elliot in tail; and for default of such issue, to the use and behoof of his nephew John Goodal, the plaintiff, for life, &c. taking the name of Coryton; with power to his trustees, until his son should attain his age of twenty |