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Hen. VIII. a will operated as a conveyance, dealing with the legal interest possessed by the testator at the date of the will, and intended to be disposed of, but coming into effect only at his death, and being of course subject to revocation at any time before his death." (Digby, Hist. of the Law of Real Property, pp. 301-303.)

(72) A devise affecting lands is merely a species of conveyance. . . . . Wherefore no after-purchased lands will pass under such devise, pages 378, 379.

This view of a devise was no doubt due in the first place to historical facts: especially to the desire to keep devises of land entirely free from the ecclesiastical jurisdiction over testamentary matters. It originated long before the statute of 32 Hen. VIII., c. 1, to which it has sometimes been ascribed. (Ld. Mansfield in Cowp. 90.) But it is now so completely obsolete, and wills of land and of chattels so generally identified, that both are regarded as speaking from the time of testator's death, and operating on all property, real or personal, then owned by him, even when this is not declared by statute, as it now is in most of the United States, and even in England. (Stat. 1 Vict. c. 26, 24.) After-acquired lands pass by a will, unless a contrary intention shall appear in the will itself.

It is not a real, even if apparent exception to this rule (that the will speaks from the date of death) that when the testator's ability or capacity to make a will is in question, it is with reference to the date when the will offered was actually executed, and not to the date of death that the proof must be directed. A will made in sound mind is not shaken by subsequent incapacity. A will made ín a fit of lunacy is not validated by his subsequent death in sound mind. A will made under disability remains invalid though the disability be removed before death. (Girard v. City etc. 4 Rawle, 336, and cases cited.) Of course the law at the time of

death governs the interpretation of devises as well as bequests, and even the formalities of execution. In one respect, however, devises of real property must be distinguished from bequests of personalty. The latter are governed by the law of the domicile: the former by the law of the state in which they lie. This is a general principle of universal application; but is modified by statute in many states, which admit to proof and effect wills of land within their borders, executed in conformity with the law of the testator's domicile. How far this shall go in respect to effect must of course depend in each state upon the language of its statutes.

(73) No such cross-remainders are allowed between more than two devisees, page 381.

This restriction was done away with soon after Blackstone wrote, as is shown by a note of his first commentator, Christian. Lord Mansfield said that there was a presumption against cross-remainders between more than two, but the intention of the testator would defeat it. (Perry v. White, Cowp. 777, 797; Doe v. Burville, 2 East, 47; Atherton v. Pye, 49 Term Rep. 710.) Stronger evidence in favor of that intention is required of a cross-remainder among three or more, than when it is to two only. (Hudson v. Hudson, Chip. D. 406; Hannaford v. Hannaford, Law, R. 7 Q. B. 116; Re Ridge's Trusts, Law R. 7 Ch. 665; Powell v. Howells, Law R. 3 Q. B. 654.)

(74) Extrinsic evidence in aid of the interpretation of wills, page 382.

It is impossible to give any rules on this subject better than those first formulated by Sir James Wigram, and approved by the experience of half a century.

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 détermine 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."

To which an English editor has added the following:

"These cases may be thus defined: Where the ob

ject 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.)

It will be seen that the sixth and seventh rules embody the distinction familiarly known in our books as that of latent and patent ambiguities, applicable not to wills only, but to deeds and other written instruments. (See 1 Greenleaf on Evidence, pp. 297-300; Best on Evidence, 226.) This distinction has been criticised and attempts made to improve it; but it is conceived that it rests upon a very simple and natural principle. Where the doubt depends on the meaning of the words themselves, and can be seen by mere reading, it is patent, and to admit oral evidence would be contrary to the fundamental rule. But where it depends on the application of plain words to persons or things, as extrinsic evidence of the existence and qualities of these persons or things must be given in order to show the existence of the doubt, it is also admissible to show which of them was in the testator's meaning. It is an universal rule that the same kind of evidence which raises a presumption may be used to rebut it.

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