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second son of Reginald, so as to give him an estate tail; as the only mode of effectuating the general intent of the testator; which was to entail his estate on all the sons of his brother Reginald.

34. In cases where a perpetuity is attempted, Construction there is a material difference between a deed and a cy pres. will. In the case of a deed, all the limitations are totally void. But in the case of a will, the courts do not, if they can avoid it, construe the devise to be utterly void, but expound the will in such a manner as to carry the testator's intention into effect, as far as the rules respecting perpetuities will allow; which is called a construction cy pres.

v. Humber

332.

35. A person devised his estate to the Drapers Humberston company and their successors, in trust to convey ston, the same to his godson M. H. for life, and upon 1 P. Wms. the death of the said M. H. to his first son for life; and so to the first son of that son for life, &c.; and if no issue male of the first son, then to the second son of the said M. H. for life, and so to his first son, &c. On a bill brought for an execution of the trusts of this will, Lord Cowper said, though an attempt to make a perpetuity for successive lives be vain, yet so far as is consistent with the rules of law, it ought to be complied with: and therefore let all the sons of these Humberstons that are already born, take estates for their lives; but where the limitation is to vide Pitt v. the first son unborn, there the limitation to such Jackson, unborn son shall be in tail male. 36. In a modern case, where there was a devise of Somerville v. land to trustees in fee, in trust for A. an infant, for Lethbridge, 99 years, if he should so long live; and after that term to his first, second, third, and other sons, and the issue male of their bodies, for the like term of 99 years, as they should be in seniority of birth. The

2 Bro. R. 51.

6 Term R.

213.

Beard v.
Westcot,

Gilb. Uses, by
Sudgen, 270.

Lade v.
Holford,

3 Burr. 1416.

428.

Amb. 479.

Judges of the Court of K. B. certified that the devise to the first unborn son of A. was good; but the subsequent limitations were void.

37. So where there is a proviso in a will, of which the effect would be to prevent a power of alienation, for a longer period than the law allows, such proviso will be deemed void, and the rest of the will good.

38. Sir John Lade devised certain lands to trustees and their heirs, to the use of his cousin John Inskip for 1 Black. R. life, remainder to trustees to preserve contingent remainders, remainder to his first and other sons in tail male, remainder to the use of the trustees and their heirs, during the life of Ann Nutt, in trust to apply the rents and profits for the benefit of such of her sons, or such other person, as for the time being should be in esse, and would be the next tenant for life, or in tail, by virtue of the limitations in his will, in case Ann Nutt were dead; and from and after her decease, then to the use of her first and other sons successively in tail: provided that during the time the said John Inskip should be under the age of 26, and so often, and during such time as the person who for the time being would, by virtue of the said will, have been entitled in possession to the devised premises, as tenant for life, or tenant in tail, should be under the age of 26 years, the trustees and their heirs should and might enter on the premises, and take the rents and profits, and apply them to the following uses, viz. to allow to such persons certain annual sums till they attain the age of 26, and to lay out the residue in the purchase of lands, to be settled as the estate devised.

John Inskip died, leaving his wife ensient with a son, who, while an infant, exhibited his bill in Chan. cery, praying to be let into possession of the estate,

when he should arrive at the age of 21. Lord Henley directed a case to be sent to the Court of K. B. for their opinion on this question:-Whether Rose Fuller, the heir of the surviving trustee, did, upon the birth of the plaintiff, take any and what estate in the devised premises by virtue of the said proviso.

It was contended that no estate vested in the trustees, the proviso being void; whether it meant to vest a determinable fee in the trustees, or a mere chattel interest: because in the first case it tended to a perpetuity, by taking away the power of alienation five years longer than the policy of the law admitted; in the latter case, it had the same inconvenience, and was in derogation of the legal powers of tenant in tail.

The Court of K. B. appears to have been of this opinion, for they certified that Rose Fuller did not take any estate in the premises devised, by virtue of the proviso in the will of the said testator.*

No Averment allowed to

explain Wills.

68.

39. It has been always held that no averment can be admitted to explain a will; the construction of it must be collected from the words, and not by any Cheyney's averment: for it would be full of great inconvenience case, 5 Rep. that none should know, by the written words of a will, what construction to make, or advice to give, but it should be controlled by collateral averments, out of the will.

40. By the statute of frauds and perjuries, it is enacted, "that no will in writing shall be repealed, nor shall any clause, devise, or bequest therein be altered or changed, by any words or will by word of mouth only."

* The doctrine of perpetuities will be more fully considered in the chapters respecting Executory Devises.

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Plowd. 345.

Bertie v.
Faulkland,

1 Salk. 231.

Broughton v.
Errington,
Tit. 7. c. 3.

§ 12.

8 Ves. 22.

Unless there is a latent

Ambiguity.

41. Papers and writings were offered in evidence, to prove what was said to be the intention of a testator. But it was decreed that they should not influence the construction of a will in writing; for that would be to make them part of the will itself. And it is expressly required by the statute of frauds, that every part of a will shall be in writing.

42. The deposition of a person who prepared a will was offered to be read, to prove the declarations of the testator, at the time he gave the instructions for his will, respecting his intention of giving his wife the several devises and bequests mentioned in the will, over and above her jointure: but Lord Bathurst would not suffer such evidence to be read.

43. In the case of an ambiguitas latens, an averment supported by parol evidence is admissible, to explain Tit. 32. c. 19. such ambiguity. And therefore if a testator, having 5 Rep. 68 b. two sons of the name of John, devises generally to his son John, there, parol evidence will be admitted, to prove which John the testator meant.

§ 51.

2 Atk. 372.

Harris v. Epis. Lincoln,

2 P. Wms. 135.

Minshul v.
Minshul,

I Atk. 411.

Jones v.
Newman,

1 Black. R.
60.

44. A person being seised in fee, as heir of his mother's mother, devised the lands to trustees in fee, in trust to pay annuities; and the residue to go to the testator's right heirs, of his mother's side, for ever. The testator had two heirs of his mother's side, one who was heir of the mother's father, and the other, heir of the mother's mother. Parol evidence was admitted to prove that the testator, when he made his will, declared that the heir of his mother's mother should have his estate, because it came from thence.

45. Where parol evidence is admitted to explain a will, it may be encountered by parol evidence.

46. On a motion for a new trial, in ejectment, wherein the lessor of the plaintiff was heir at law, and the defendant's title arose upon a will, which devised

the premises to John Cluer of Calcot, under whom the defendant claimed. The plaintiff gave evidence, that at the time of making the will, there were two John Cluers, father and son, and that therefore the devise was to the father, who died before the testatrix, and so the devise was lapsed and void. Upon which the defendant offered to prove by parol evidence that the testatrix intended to leave it to John Cluer the son. But the Judge would not suffer it; and a verdict was found for the plaintiff. Per totam curiam, the Court was mistaken; the objection arose from parol evidence, and ought to be encountered by the same.

47. Parol evidence has also been admitted to clear up a mistake in the description of a devisee. And

Sir J. Strange, M. R. has said, that in no instance 2 Ves. 217. parol evidence should be admitted in contradiction to the words of a will; but if the words were doubtful and ambiguous, and unless some reasonable light were let in to determine that, the will would fall to the ground; any thing to explain, not to contradict the will, was always admitted.

6 Term R.

48. George Evans devised to his grand-daughter Thomas v. Mary Thomas of Llechlloyd, in Merthyr parish, the Thomas, reversion of a house. At the time of his death the 671. devisor had a grand-daughter of the name of Elenor Evans, who lived at Llechlloyd in Merthyr parish; and a great drand-daughter, Mary Thomas, an infant of two years, being the only person of that name in the family; but it appeared that she lived at Green Castle in the parish of Llangain, four miles from Merthyr parish; in which latter parish she had never been in her life.

At the trial the plaintiff's counsel proposed giving parol evidence to show a mistake in the name of the devisee; that when the will was read over to the

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