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need not be cons sidered.
or false Latin
tion must be
der a reversion may well pass, and e converso (e). And of the words used another maxim of law is, that “ mala grammatica non vitiat “chartam;" 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 construcand not merely upon disjointed parts of it.
66 Nam ex an
upon the entire “ tecedentibus et consequentibus fit optima interpreta- deed, and not “ tio (g).” And *therefore that every part of it be (if possi- parts of it.
upon disjointed 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
must be taken is the agent or contractor, and in favour of the other party. most strongly “ 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 (). For the principle of self-preservation
j 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 be
tween indenmust be taken between an indenture and a deed-poll: for the words 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.
(g) 1 Bulstr. 101.
(i) Plowd. 156.
(j) Co. Litt. 42, (and see ante, p. 121).
(k) Co. Litt. 134.
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 (I). 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 senses, one 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 reclauses 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, jected; in wills, the latter shall stand (0). Which is owing to the different the first. [ *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.
(c) Co. Litt. 112. (m) Co. Litt. 42.
(p) Cro. Eliz. 420. 1 Vern. 30. (n) Hardr. 94.
there be two
(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.
pursue if possible the will of the devisor, who for want of favourably exadvice or learning may have omitted the legal or proper her the intent
pounded, to furphrases. And therefore many times the law dispenses with of the devisor. the want of words in devises, that are absolutely requisite in all other instruments. Thus, a fee may be conveyed without words of inheritance (9); and an estate-tail without words of procreation (r) t. By 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 heirat-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 (9) See pag. 108. (r) See pag. 115. (s) H. 13 Hen. VII. 17. 1 Ventr. 376.
163): in all other cases, as there can be tice are, or ought to be, as much at lino will at all previous to execution, the berty, or rather under an obligation, to testator must be understood to have con- effectuate that intention as far as the templated every part as taking effect at law will admit, as if he had expressed one and the same time. (Langham v. it in the most apt and appropriate lanSandford, 2 Meriv. 11. 22).-Ed.] guage. (1 Bl. Rep. 672. 4 Burr.
+ Mr. Christian observes, that “in 2579. Doug. 329. Fearne, 113. Harg, the celebrated case of Perrin v. Blake, Tracts, 351, 490).” the question was this, viz. whether the [It is a sound general rule, that the manifest intention of the testator to give words made use of by a testator are to to the first taker an estate for life only be interpreted according to their legal ought to prevail, or that he should have effect and operation, unless it clearly an estate-tail, from the construction appear that he intended to use them in which would have clearly been put upon a different sense: (Thelluson v. Woodthe same words, if they had been used ford, 4 Ves. 329. Holloway v. Holloway, in a deed.
5 Ves. 401. Deane v. Test, 9 Ves. 152. “Where technical phrases and terms Perry v. Woods, 3 Ves. 206. Attorneyof art are used alone by a testator, it is General v. Vigor, 8 Ves. 294. Church fair to presume that he knew their arti- v. Munday, 15 Ves. 406): but, it would ficial import and signification, and that be a manifest perversion of this rule of such was his will and intention; but construction, if it were applied without where he happens to introduce them, and the qualifications by which it ought to at the same time in effect declares that be restricted: no court will entrap a I do not intend what conveyancers un- testator in words, not allowing him to derstand by these words, but my inten- explain them. (Crone v. Odell, 1 Ball. tion is to dispose of my estate directly & Beat. 172. 480. Loveacres v. Blight, contrary to the construction generally Cowp. 355. Beauman v. Stock, 2 Ball, put upon them; surely courts of jus- & Beat. 413). ED.) VOL. II.
does not take it, nobody else can t. 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)I:
and, in general, where any implications are allowed, they *382 ] must be such as are necessary (or at least highly * probable)
and not merely possible implications (w)(14). And herein
(t) Freem. 484.
(u) Cro. Jac. 655. 1 Ventr. 224. 2 Show. 139.
(w) Vaugh. 262.
(14) No implication, unquestionably, an inference as leaves no doubt in the ought to rest on mere conjecture,(Cave v. mind of the judge who has to decide; Holford, 3 Ves. 676), but neither is it re- provided the question is not of a nature quired that every inference should have to exclude all implication. (Partly v. the force of a mathematical demonstra- Harle, 5 Ves. 546. Bootle v. Blundell, tion, and be absolutely irresistible; and 19 Ves. 517. Gittins v. Steele, 1 Swanst. it has been held enough if the whole cir- 28. Wilkinson v. Adam, 1 Ves. & Bea. cumstances, taken together, afford such 466).
+ But it has been thought, that, if it 1 Mr. Christian observes, that " the is given to a stranger after the wife's contrary has for some time been fully death, the devise raises no implication established; and this has been laid in favour of the wife, for it may descend down by Lord Mansfield as a general to the heir during the life of the wife, rule, viz. wherever cross remainders which possibly may have been the tes- are to be raised between two and no tator's intention. (Cro. Jac. 75).-CH. more, the favourable presumption is in
[And see, to the same effect, Upton support of cross remainders: where v. Lord Ferrers, 5 Ves. 806, and Fawlker between more than two, the presumpv. Fawlkner, 1 Vern. 22, with the au- tion is against them; but the intention thorities cited in Mr. Raithby's note of the testator may defeat the prethereto. It is, indeed, quite an un- sumption in either case.” [Cowp. 780. questionable rule, that plain words of 797]. gift to some person capable of taking, “ In a case where cross remainders or words of necessary implication, are were created by a deed, Lord Kenyon required to disinherit an heir-at-law. declared, that technical precise (Berry v. Usher, 11 Ves. 92. Tregon- form of words is necessary to create well v. Sydenham, 3 Dow, 210. Gard- remainders,
in the verner v. Sheldon, Vaugh. 262).-Ed.] boseness of conveyancers an abund
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 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 Conclusion. 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 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
(x) Fitzg. 236. 11 Mod. 153.
ance of words is generally introduced number in a will. (5 T. R. 521. 1 East,
ive heirs create cross remainders amongst any of their bodies. (2 East, 36)."