Sivut kuvina

not so much in the nature of a testament,


à conveyance declaring the uses to which the land shall be subject; with this difference, that in other conveyances the actual subscription of the witnesses is not required by law (w), though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead: but in devises of lands such subscription is now absolutely necessary, by statute, in order to identify a conveyance which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of

personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will (c) (11). Wherefore no after-purchased (w) See pag. 307, 308.

(x) 1 P. Wms. 575. 11 Mod. 148.

(11) Every devise of real estate is disseisin, in the time intervening bedeemed specific; (Hill v. Cock, 1 Ves. tween the date of the will and the tes& Bea. 175. Milnes v. Slater, 8 Ves. tator's death, and yet, (the disseisin 305); and being considered in the na- being purged by re-entry), the will ture of an appointment of particular may stand good, without re-publication. lands to the devisee, it has been held (Goodtitle v. Otway, 1 Bos. & Pull. a necessary consequence of this princi- 603, citing the leading case of Brunker ple, (whether the principle itself be v. Cook, 11 Mod. 128). And even wise or not), that no man can legally though a testator was disseised, at the devise lands to which he has not a le. time of making his will, of lands theregal title at the date of the appointment by devised, still, if he be remitted beand of his death; nor can such a de- fore his death, it should seem that the vise be held good in equity, where the devise would be good; for, if re-entry, equitable title at least was not in the according to the language of all the devisor at the first of those periods, cases and text books, has relation to all and the same estate, whether clothed intents and purposes to the time of the or not with the legal title, continued in disseisin, and the disseisee when remithim up to his death: (Harwood v. ted, is held to have had possession ab Goodright, Cowp. 90. Howe v. Earl initio, (Monkton v. Pashley, 2 Lord Dartmouth, 7 Ves. 147. Rose v. Co. Raym. 977), then, a will of lands, notnynghame, 11 Ves. 554. Brudenell v. withstanding it was executed when the Boughton, 2 Atk. 272): with this qua- devisor had only jus ad rem, not in re, lification however:--it is possible for may operate as a good devise. (Alt.the estate to have been devested by General v. Vigor, 8 Ves. 282). That,

lands will pass under such devise (y), unless, subsequent to the purchase or contract (2), the devisor republishes his will (a) (12) +.

(y) Moor. 255. 11 Mod. 127. (2) I Ch. Cas. 39. 2 Ch. Cas. 144.

(a) Salk. 238.

as a general rule, subject to some qua- may pass under a general devise conlifications there stated, a devise becomes tained in the will: but, where the will inoperative if the testator conveys the contains a particular description of the devised lands away after he has made lands thereby devised, no subsequent his will, notwithstanding he may take will can apply to lands purchased after back the very same estate in those the making of the will; for, the parlands, see ante, note (9) to this chapter. ticular description given in the will must

(12) A codicil duly executed, and defeat any more extended effect of the attested by three witnesses, if such co- re-publication. (Heylin v. Heylin, Cowp. dicil clearly refer to, and adopt, a pre. 132). Other circumstances besides those vious unattested will, amounts to a re- of locality, in the description of the execution and re-publication of that lands devised, are sufficient to control will: and a devise of land by the un- the effect and operation of a codicil: attested will, which, if it stood alone, thus, for instance, a codicil confirming would be inoperative as to real estate, the beneficial interests given in the teswill be made good by the codicil. (De tator's lands by his will, but appointing Bathe v. Lord Fingal, 16 Ves. 168). new trustees to whom he devises the Whatever objections this doctrine of legal estate in his “said” lands, may constructive re-publication may be open exclude the ordinary operation of a reto, it is a point now clearly established, publication, and prevent lands purchasthat, as a general rule, a codicil duly ed after the date of the will from passattested does amount to such re-publi- ing by such devise. (Bowes v. Bowes, cation. (Hulme v. Heygate, 1 Meriv. as determined on appeal in Dom. Proc. 294). It is equally clear, that a re- 2 Bos. & Pull. 506). But, where no publication of a will makes the will special intention to the contrary apspeak as of the time of such re-publica- pears, the effect of a codicil, per se, and tion; (Long v. Aldred, 3 Addams, 51); independen of any intention, is, to and, consequently, that lands purchased bring down the will to the date of the in the interval between the first mak- codicil, making the will speak as of that ing of the will and its re-publication, date. (Goodtitle v. Meredith, 2 Mau.

+ Mr. Christian observes, that “if lapsed and void, and the heirs of A. can an estate is given to A. and his heirs, claim no benefit from the devise. (White or to A. and the heirs of his body, or v. White, 6 T. R. 518. 1 Bro. 219. any interest whatever to A., and A. Doug. 330).” dies before the testator, the devise is

The general We have now considered the several species of common rules for the construction of assurances, whereby a title to lands and tenements may be deeds and wills. transferred and conveyed from one man to another. But,

before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice for the construction and

exposition of them all. These are, 1. It must be fa

1. That the construction be favourable, and as near the vourable and reasonable, and minds and apparent intents of the parties, as the rules of according to law will admit (6). For the maxims of law are, that“ verba common understanding, and intentioni debent inservire;" and“ benigne interpretamur the intent of the chartas propter simplicitatem laicorum.And therefore parties.

the construction must also be reasonable, and agreeable to

common understanding (c). 2. Where there 2. That quoties in verbis nulla est ambiguitas, ibi nulla is no ambiguity in the language, expositio contra verba fienda est (d): but that where the no intendment intention is clear, too minute a stress be not laid on the can be made contrary thereto; strict and precise signification of words; nam qui hæret in but, where the litera, hæret in cortice. Therefore, by a grant of a remainintention is clear, the strict sense (6) And. 60.

(c) 1 Bulstr. 175. Hob. 304. (d) 2 Saund. 157.

& Sel. 14. Pigott v. Waller, 7 Ves. v. Lord Monck, 1 Ball. & Beat. 306.
123). And though the codicil relate Izard v. Hurst, 2 Freem. 224. Drink-
(as it did in the case of Pigott v. Waller, water v. Falconer, 2 Ves. sen. 626).
just cited) only to personalty; yet, if it As lands which, at the time, have
be executed by three witnesses, it re- been contracted for by, but not actually
publishes a previous devise of land. conveyed to, a testator, will pass under
(Rogers v. Browning & Pittis, 1 Ad- a general devise of his estates; (Capel
dams, 37). It should be observed, that v. Girdler, 9 Ves. 510. Broome v.
a republication in general terms, where- Monck, 10 Ves. 605); it follows, from
by a man ratifies and confirms his will, the principles already stated, that any
ratifies and confirms it with every codi- lands for which the testator has entered
cil which has been added to it; and into a valid contract before he re-pub.
when by any codicil the will has been lishes his will, must, unless a special in-
in part revoked, the mere republication tent to the contrary appear, pass under
of the will does not set up again any his said will. (Gibson v. Lord Montfort,
gist which has been so revoked. (Cros. 1 Ves. sen. 494).
bie v. M.Douall, 4 Ves, 616. Monck

or false Latin

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der a reversion may


and e converso (e). And of the words used another maxim of law is, that mala grammatica non vitiat need not be conchartam;” neither false English nor bad Latin will de- Bad grammar stroy a deed (f). Which, perhaps, a classical critic may will not vitiate think to be no unnecessary caution.

a deed. 3. That the construction be made upon the entire deed, 3. The construc

66 Nam ex an

tion must be and not merely upon disjointed parts of it.

upon the entire tecedentibus et consequentibus fit optima interpreta- deed, and not

upon disjointed tio (g).” And *therefore that every part of it be (if possi- parts of it. ble) made to take effect: and no word but what may operate [ *380 ] in some shape or other (h). Nam verba debent intelligi

cum effectu, ut res magis valeat quam pereat (i).

4. That the deed be taken most strongly against him that 4. The deed is the agent or contractor, and in favour of the other party. most strongly

must be taken Verba fortius accipiuntur contra proferentem.As, if against the

maker, and in tenant in fee-simple grants to any one an estate for life, favour of the generally, it shall be construed an estate for the life of other party. the grantee (j). For the principle of self-preservation will make men sufficiently careful not to prejudice their own interest by the two 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 Distinction bemust be taken between an indenture and a deed-poll: for the tween indenwords of an indenture, executed by both parties, are to be poll. considered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, because 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 (k). And, in general,

tures and deeds

(e) Hob. 27.

() 10 Rep. 133. Co. Litt. 223. 2 Show. 334.

(8) 1 Bulstr. 101.
(h) 1 P. Wms. 457.

(i) Plowd. 156.

(j) Co. Litt. 42, (and see ante, p. 121].

(k) Co. Litt. 134.

senses, one

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. If the words 5. That, if the words will bear two senses, one agreewill bear two

able to, and another against law, that sense be preferred agreeable to, which is most agreeable thereto (m). As, if tenant in tail the other against law, the former lets a lease to have and to hold during life generally, it will be preferred. 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. 6. In deeds, if *6. That, in a deed, if there be two clauses so totally rethere be two clauses totally

pugnant to each other that they cannot stand together, the repugnant to first shall be received and the latter rejected (n): wherein it each other, the differs from a will; for there, of two such repugnant clauses, last shall be rejected; in wills, the latter shall stand (o). Which is owing to the different [ +381 ] natures of the two instruments; for the first deed and the

last will are always most available in law t. Yet in both

cases we should rather attempt to reconcile them (p). 7. A devise 7. That a devise be most favourably expounded (13), to must be most (1) Bacon's Elem. c. 3.

(0) Co. Litt. 112. (m) Co. Litt. 42.

(p) Cro. Eliz. 420. 1 Vern. 30. (n) Hardr. 94.

the first.

(13) See ante, p. 108, note (11) to chapter 7.

+ Mr. Christian observes, that “such two parts of a will are totally irreconwas held to be the law in the time of cileable, it was Lord Alvanley's reLord Coke; but now, where the same peatedly expressed opinion, that the estate is given by the testator to two latter ought to prevail; and that the persons in different parts of the will, subsequent words must be taken as an they are construed to take the estate as indication of a subsequent intention. joint-tenants, or tenants in common, (Constantine v. Constantine, 6 Ves. 102. according to the limitations of the es. Sims v. Doughty, 5 Ves. 247. Milsom tates and interests devised. (3 Atk. v. Awdrey, 5 Ves. 467). This rule, 493. Harg. Co. Litt. 112 b).

however, was restricted by the learned [Nothing is better established, as a lord to those cases only, where two general rule, than that effect ought to parts of a will are totally inconsistent, be given to every word of a will: (Col- so that it is impossible for them to colett v. Lawrence, 1 Ves. jun. 270. Gray incide: (and see Jones v. Colbeck, 8 v. Minnethorpe, 3 Ves. 105): but, if Ves. 42. Galland v. Leonard, 1 Swanst.

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