poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him (k). 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 (1).

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 (21). 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 omitted 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) (22). By

(k) Co. Litt. 134.

(1) Bacon's Elem. c. 3.

(m) Co. Litt. 42.

(n) Hardr. 94.

(21) 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.

(22) In the celebrated case of Perrin v. 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 deci sion was reversed, and six out of eight of the other judges held, that John Williams took an

(0) Co. Litt. 112.

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

(q) See page 108.

(r) See page 115.

estate-tail, (see contra in New-York, by the Revised Statutes, vol. 1, 725, § 28,) 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 since 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 in

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 (23). 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) (24): and, in general, where any implications are allowed, they must be such as are necessary (or at least highly probable) and not merely pos- [*382] sible implications (w) (25). 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.

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 connexions of the persons entitled to hold them: we have examined the tenures, both ancient 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 pro

(8) Н. 13 Пen. VII. 17. 1 Vent. 376.

(t) Freem. 484.

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

troduce 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 Bl. Rep. 672. 4 Burr. 2579. Doug. 329. Fearne, 113. Harg. Tracts, 351. 490.

See also a clear and elaborate exposition of the law and principles of construction in such case by Mr. Butler, Co. Litt. 376. b. n. 1. See further, 4 Ves. Jun. 412. 2 Ves. 248. and 3 Bro. C. C. 61.

(23) 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 plan,

(w) Vaugh. 262.

(z) Fitzg. 236. 11 Mod. 153.

and not merely probable, intention. Doe v. Wilkinson, 2 T. R. 209.

(24) 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. v. White. Cowp. 777. 797. 4 T. R. 710.

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.

(25) "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." Lord Eldon, 1 V. & B. 466.

1

perty 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 continual

ly arise, and which have been heaped one upon another for a [*383] course of seven centuries, without any order or *method; 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."

CHAPTER XXIV.

OF THINGS PERSONAL (1).

UNDER the name of things personal are included all sorts of things moveable, which may attend a man's person wherever he goes; and there

(y) Proeme to 1 Inst.

(1) See in general, as to what is personal property, Com. Dig. Biens; Vin. Ab. Proper ty; and 2 Roper on Legacies, ch. 16. sect. 1. See 397. post. "Chattels" are real or personal. Co. Lit. 118. b. Chattels real are such as concern the realty, as a term for years. Id. Chattels personal are cattle, stuff, &c. fowls tame or reclaimed, deer, conies tame, fish in a trunk, tithes severed from the nine parts, trees sold or reserved upon a sale, Hob. 173; and emblements, Com. Dig. Biens, A. 2. The

terms "goods and chattels" include choses in action as well as those in possession. 12 Co. 1. 1 Atk. 182. But a bill of exchange, mortgage, bond, and banker's receipt, will not pass by a bequest of all the testator's " property" in a particular house, though cash and bank notes would have passed, they being quasi cash; for bills, bonds, &c. are mere evidence of title to things out of the house and not things in it. 1 Sch. & Lef. 318. 11 Ves. 662. The term "chattels" is more comprehensive than

fore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immoveable, as land and houses, and the profits issuing thereout. These being constantly within the reach, and under the protection of the law, were the principal favourites of our first legislators: who took all imaginable care in ascertaining, the rights, and directing the disposition, of such property as they imagined to be lasting, and which would answer to posterity the trouble and pains that their ancestors employed about them; but at the same time entertained a very low and contemptuous opinion of all personal estate, which they regarded as only a transient commodity. The amount of it indeed was comparatively very trifling, during the scarcity of money and the ignorance of luxurious refinements which prevailed in the feodal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the moveables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our ancient historians, though now it would justly alarm our opulent merchants and stockholders. And hence "likewise may be derived the frequent forfeitures inflict- [*385] ed by the common law, of all a man's goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to deserve so severe a punishment. Our ancient law-books, which are founded upon the feodal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the Mirroir, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented its quantity and of course its value, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a light nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, wherever those rules appeared to be well grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to ancient usages, and a certain feodal tincture, which is still to be found in some branches of personal property.

But things personal, by our law, do not only include things moveable, but also something more: the whole of which is comprehended under the general name of chattels, which, sir Edward Coke says (a), is a French word signifying goods. The appellation is in truth derived from the technical Latin word, catalla: which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was

(a) 1 Inst. 118.

"goods," and will include animate as well as inanimate property. The term "goods" will not include fixtures; but the word "effects" may embrace the same. 7 Taunt. 188. 4 J. B. Moore, 73. 4 B. & A. 206. Invalid exchequer bills are securities, and effects within meaning of 15 Geo. II. c. 13. 1 New. R. 1. The terms "effects, both real and personal,"

in a will, pass freehold estates, and all chattels real and personal. 3 Bro. P. C. 388. As to trees, see Com. Dig. Biens, H.; 2 Saund. index, Trees; Bridgm. index, tit. Timber. When severed, or contracted to be severed, from the land, they pass as personal property. Hob. 173. 11 Co. 50. Com. Dig. Biens, H. Toller's L. Ex. 195, 6.

applied to all moveables in general (b). In the grand coustumier of Normandy (c) a chattel is described as a mere moveable, but at the same time

it is set in opposition to a fief or feud: so that not only goods, but [*386] whatever was not a feud, were accounted chattels. *And it is in

this latter, more extended, negative sense, that our law adopts it; the idea of goods, or moveables only, being not sufficiently comprehensive to take in every thing that the law considers as a chattel interest. For since, as the commentator on the coustumier (d) observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or, according to us, is not a real estate: the consequence of which in both laws is, that it must be a personal estate, or chattel.

Chattels therefore are distributed by the law into two kinds; chattels real, and chattels personal (e).

1. Chattels real, saith sir Edward Coke (f), are such as concern, or savour of, the realty; as terms for years of land, wardships in chivalry (while the military tenures subsisted), the next presentation to a church, estates by a statute-merchant, statute-staple, elegit, on the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates: of which they have one quality, viz. immobility, which denominates them real; but want the other, viz. a sufficient, legal, indeterminate duration; and this want it is, that constitutes them chattels. The utmost period for which they can last is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life: their tenants were considered upon feodal principles, as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII (g). A freehold, which alone is a real estate, and seems (as

has been said) to answer to the fief in Normandy, is conveyed by [*387] corporal investiture and *livery of seisin; which gives the tenant

so strong a hold of the land, that it never after can be wrested from him during his life, but by his own act, of voluntary transfer or of forfeiture; or else by the happening of some future contingency, as in estates per auter vie, and the determinable freeholds mentioned in a former chapter (h). And even these, being of an uncertain duration, may by possibility last for the owner's life; for the law will not presuppose the contingency to happen before it actually does, and till then the estate is to all intents and purposes a life-estate, and therefore a freehold interest. On the other hand, a chattel interest in lands, which the Normans put in opposition to fief, and we to freehold, is conveyed by no seisin or corporal investiture, but the possession is gained by the mere entry of the tenant himself; and it will certainly expire at a time prefixed and determined, if not sooner. Thus a lease for years must necessarily fail at the end and completion of the term; the next presentation to a church is satisfied and