pounded, to fur ther the intent of the devisor. pursue if possible the will of the devisor, who for want of favourably exadvice 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) †. 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. 163): in all other cases, as there can be no will at all previous to execution, the testator must be understood to have contemplated every part as taking effect at one and the same time. (Langham v. Sandford, 2 Meriv. 11. 22).-ED.] † Mr. Christian observes, that "in the celebrated case of Perrin v. Blake, the question was this, viz. 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. "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 introduce 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 jusVOL. II. (s) H. 13 Hen. VII. 17. 1 Ventr. 376. tice are, or ought to be, as much at li- [It is a sound general rule, that the TT 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 (t). But, to avoid confusion, no such cross. remainders are allowed between more than two devisees (u)‡: 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 (u) Cro. Jac. 655. 1 Ventr. 224. 2 Show. 139. (w) Vaugh. 262. (t) Freem. 484. (14) No implication, unquestionably, ought to rest on mere conjecture,(Cave v. Holford, 3 Ves. 676), but neither is it required that every inference should have the force of a mathematical demonstration, and be absolutely irresistible; and it has been held enough if the whole circumstances, taken together, afford such + 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).-Cн. an inference as leaves no doubt in the mind of the judge who has to decide; provided the question is not of a nature to exclude all implication. (Hartly v. Harle, 5 Ves. 546. Bootle v. Blundell, 19 Ves. 517. Gittins v. Steele, 1 Swanst. 28. Wilkinson v. Adam, 1 Ves. & Bea. 466). Mr. Christian observes, that "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." [Cowp. 780. 797]. [And see, to the same effect, Upton v. Lord Ferrers, 5 Ves. 806, and Fawlker v. Fawlkner, 1 Vern. 22, with the authorities cited in Mr. Raithby's note thereto. It is, indeed, quite an unquestionable rule, that plain words of gift to some person capable of taking, or words of necessary implication, are required to disinherit an heir-at-law. (Berry v. Usher, 11 Ves. 92. Tregon-form of words is necessary to create well v. Sydenham, 3 Dow, 210. Gardner v. Sheldon, Vaugh. 262).-ED.] "In a case where cross remainders were created by a deed, Lord Kenyon · declared, that no technical precise cross remainders, though in the vei'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 (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 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 in deeds for this purpose.' 5 T. R. 431. But cross remainders cannot be created in a deed, as in a will, by implication, not even where the ultimate limitation is given in default of all such issue,' which words would probably create cross remainders amongst any number in a will. (5 T. R. 521. 1 East, "In a will there may be cross re- 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 upon another for a 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." (y) Proeme to 1 Inst. 384 CHAPTER XXIV. OF THINGS PERSONAL. sonal. UNDER the name of things personal are included all sorts of of things perthings moveable, which may attend a man's person wherever he goes; and therefore, 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 lands 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 antient historians, though now it would justly alarm our opulent merchants and stock-holders. And |