Sivut kuvina

nor bad Latin will destroy a deed. 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."

And [880] 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.b "Nam verba debent intelligi cum effectu, ut res magis valeat quem pareat."it


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.j5 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 deedpoll: for the words of an indenture, executed by both parties, are to be considered as the words of them both; 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.

*Cited, 37 N. H. 313.

+-+ Quoted, 14 Ga. 551; Busb. 347, 59 Am. Dec. 560; 93 N. C. 218; first sentence, 7 Hill, 192; Winst. Eq. 27. Cited, 14 Ga. 568; 6 Hill, 207; Dall. Append. xvi; 29 N. H. 499; 36 N. H. 524; 1 Fla. 253; 2 Yeates, 65.

1- Quoted, 6 Hill, 192. Cited, 2 Conn. 81; 7 Am. Dec. 246; 13 How 86; 23 N. J. L. 127.

?-? Quoted, 10 N. J. Eq. 134, 64 Am. Dec. 452; 24 Ill. 343.

for, though delivered as the words of one party, yet they are not his words only, but 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. And, in general, this rule3 being a rule of some strictness and rigor, is the last to be resorted to, and is never to be relied upon, but where all other rules of exposition fail.'

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 for life generally, it shall be construed 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:" wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand.. 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. 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

k Ibid. 134.

1 Bacon's Elem. c. 3. m Co. Litt. 42.

5 Previously, "However, this."


Hardr. 94.

o Co. Litt. 112.


Cro. Eliz. 420. 1 Vern. 30.

9 Ninth edition reads, " to have and to hold during."

8 Previously, "and."

**Quoted, 14 Ga. 551.

tt Quoted, 6 Hill, 207. Cited, 59 Md. 226; 43 Mass. 202; 2 Yeates, 527;

4 Whart. 396.

+ Cited, 6 Peters, 84; 13 N. Y. 284.


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; and an estate-tail without words of procreation. By a will also an estate may pass by mere implication, without any express words to direct it's course. As, where 'A' 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; 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. 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. But, to avoid confusion, no 5 such cross-remainders are allowed between more than two devisees" [see note 73, page 584]: ‡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. 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, is q See pag. 108.

[blocks in formation]

- Quoted, 18 Mass. 31; last sentence, 2 McCord, 86; 62 Ala. 209; 6 Johns. 190: 5 Am. Dec. 215. Ref. 3 Yeates, 232, Cited, 2 Binn. 21; 16 N. J. L. 186.

+ Cited, 13 Rich. I. & Eq. 474.

2 BLACKST. - 49.

construed in each with equal favour and benignity, and expounded rather on it's own particular circumstances, than by any general rules of positive law.* [See note 74, page 584.]

And thus we have taken the 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 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 it's 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 offered the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding volume. 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 8 Previously spelt, "enquiries."

*-* Quoted, 2 McCord, 86; 4 Hen. & M. 35. Ref. 38 Ala. 553.
I-* Quoted, 47 Miss. 498; 3 Yeates, 236.

upon another for a course of seven centuries, without any order or [383] 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: "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."


(69) of alienation by devise, page 373.

The best account of the origin of wills in Roman law is in Maine's Ancient Law, ch. 6, 7, pp. 166-231. For their history in England, see Digby's History of the Law of Real Property, esp. ch. 8, pp. 298-312. The right y Proeme to 1 Inst. 4 Previously, "cases."

8 Previously spelt, "enquiries."

« EdellinenJatka »