tremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney, whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues, (and these are the persons most likely to be present in the testator's last illness,) and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court and jury before whom such will shall be contested. And [*378 in a much later case(v) the testimony of three witnesses who were creditors was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination were said to be insufficient.10

Another inconvenience was found to attend this new method of conveyanco by devise; in that creditors by bond and other specialties, which affected the heir provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. and M. c. 14 hath provided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors

(♥) M. 31 Geo. II. 4 Burr. i, 430.

This extends to devises of lands and every interest given to the witnesses. But it has been held that a witness may be rendered competent to prove a will by a release or the receipt of his legacy. 4 Burn Ecc. Law, 97. Pratt, C. J., however, was of the opposite opinion.-CHITTY.

10 A person who signs his name as witness to a will, by this act of attestation solemnly testifies the sanity of the testator. Should such witness afterwards attempt to impeach his own act, and to prove that the testator did not know what he was doing when he made (what purported to be) his will, though such testimony will be far indeed from conclusive, (Hudson's case, Śkin. 70. Digg's case, cited ibid.,) and lord Mansfield held that a witness impeaching his own act, instead of finding credit, deserved the pillory, (Walton vs. Shelley, 1 T. R. 300. Lowe vs. Jolliffe, 1 W. Bla. 366, S. C. 1 Dick. 389. Goodtitle vs. Clayton, 4 Burr. 2225,) yet lord Eldon held that the evidence of such parties was not to be entirely excluded; admitting, however, that it is to be received with the most scrupulous jealousy. Bootle vs. Blundell, 19 Ves. 504. Howard vs. Braithwaite, 1 Ves. & Bea. 208. And Sir John Nicholl has laid it down as a distinct rule that no fact stated by any witness open to such just suspicion can be relied on, where he is not corroborated by other evidence. Kinleside vs. Harrison, 2 Phillim. 499; and see Burrows vs. Locke, 10 Ves. 474.-CHITTY.

The statute 1 Vict. c. 26 repeals the act 25 Geo. II. c. 6 (except as it affects the colonies) and re-enacts and extends some of its provisions. It makes void devises and bequests not only to an attesting witness, but to the husband or wife of such witness, and expressly provides that the incompetency of a witness to be admitted to prove the execution of a will shall not render it invalid. The statute further enacts that any creditor, or the wife or husband of any creditor, whose debt is charged upon the property devised or bequeathed by the will, may be admitted to prove the execution thereof as an attesting witness, and that an executor of a will may be admitted to prove its exe cution, a point on which some doubts had previously existed.—KERR.

VOL. I.-44

689

only) be deemed to be fraudulent and void: and that such creditors may maintain their actions jointly against both the heir and the devisee."

A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a 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.(x)" Where

(") See pages 307, 308.

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

"The statute 47 Geo. III. sess. 2, c. 74 enacts that when any person, being at the time of his death a trader, within the true intent and meaning of the laws relating to bankrupts, shall die seised of or entitled to any estate or interest in lands, tenements, or hereditaments, or other real estate, which he shall not by his last will have charged with or devised, subject to or for the payment of his debts, and which before the passing of this act would have been assets for the payment of his debts due on any specialty in which the heirs were bound, the same shall be assets to be administered in courts of equity for the payment of all the just debts of such person, as well debts due on simple contract as on specialty; and that the heir or heirs-at-law, devisee or devisees, of such debtors, shall be liable to all the same suits in equity, at the suit of any of the creditors of such debtors, whether creditors by simple contract or by specialty, as they were before the passing of this act liable to, at the suit of creditors by specialty in which the heirs were bound: provided always that in the administration of assets by courts of equity, under and by virtue of this act, all creditors by specialty in which the heirs are bound shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands.

With respect to the above enactments in the 3 & 4 W. and M. c. 14, see the decisions, Bac. Abr. Heir and Ancestor, F. 1 Chitty on Pl. 4th edit. 42. A devisee as such is liable to be sued at law only in an action of debt, and not of covenant. 7 East, 128. A devise to raise a portion for younger children, according to an agreement before marriage, and a devise for payment of debts, are exceptions in this statute, (see section 4;) but the payment of the debts must be provided for effectually, to bring the case within this exception. 1 Bro. 311. 2 Bro. 614. 7 Ves. Jr. 323.-CHITTY.

This statute has been repealed; but the payment of simple contract, as well as specialty debts, out of the real estate of the deceased debtor, has been provided for by other statutes. See 11 Geo. IV. and 1 Wm. IV. c. 47; 3 & 4 Wm. IV. c. 104; and 2 & 3 Vict. c. 60.-KERR.

12 Lord Mansfield has declared that this does not turn upon the construction of the statute 32 Hen. VIII. c. 1, as some have supposed, which says that any person having lands, &c. may devise; for the same rule prevailed before the statute, where lands were devisable by custom. Cowp. 90. It has been determined that where a testator has devised all his lands, or all the lands which he shall have at the time of his death, if he purchase copyholds after the execution of the will, and surrenders them to the uses declared by his will, they will pass by the will, (Cowp. 130;) or if the testator, after making such a devise, purchase freehold lands and then make a codicil duly executed according to the statute, though no notice is taken of the after-purchased lands, yet if the codicil is annexed to or confirms the will, or, as it seems, has a reference to it, this amounts to a republication of the will, and the after-purchased lands will pass under the general devise, (Cowp. 158. Com. 383. 4 Bro. 2. 7 Ves. Jr. 98;) but if the codicil refer expressly to the lands only devised by the will, then the after-purchased lands will not pass under the general devise of the will. 7 T. R. 482. This also is a general rule, that if a man is seised of an estate in fee, and disposes of it by will, and afterwards make a conveyance of the fee-simple, and take back a new estate, this new estate will not pass by the will, for it is not the estate which the testator had at the time of publishing his will. A man possessed of estates in fee before marriage, in order to make certain settlements upon his wife and children, entered into an agreement, in which he reserved to himself the reversion in fee, which reversion he afterwards disposed of by his will, and after the making of his will be executed proper conveyances for the performance of the marriage

fore no *after-purchased lands will pass under such devise,(y) unless, subsequent to the purchase or contract,(z) the devisor republishes his will.(a) is

[*379

We have now considered the several species of common assurances, whereby a title to lands and tenements may be 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,

(v) Moor. 255. 11 Mod. 127.

()1 Ch. Ca. 39. 2 Ch. Ca. 144.

(a) Salk. 238.

articles in which, after the limitations to his wife and children, he took back the reversion in fee: this was held by lord Loughborough to be a revocation of the will; and nie decision was afterwards confirmed by the house of lords, in the case of Brydges 113 Duchess of Chandos, 2 Ves. Jr. 417.

A similar decision was also made in the courts of Common Pleas and King's Bench, in the case of Goodtitle vs. Otway, 7 T. R. 399. In that case lord Kenyon lays down, generally, "that it is now indisputably fixed, that where the whole estate is conveyed to uses, though the ultimate reversion comes back to the grantor by the same instrument, it operates as a revocation of a prior will." 7 T. R. 419.

Equity admits no revocation which would not upon legal grounds be a revocation at law. There are three cases which are exceptions to this general rule,-viz., mortgages, which are revocations pro tanto only, a conveyance for payments of debts, or a conveyance merely for the purpose of a partition of an estate. In the two first, a court of equity decrees the redemption or the surplus to that person who would have been entitled if such mortgage or conveyance had not existed,-i.e. the devisee. 2 Ves. Jr. 428.CHRISTIAN.

If an estate is modified in a different manner, as where a new interest is taken from that in which it stood at the making of the will, it is a revocation, (3 Atk. 741;) and equitable being governed by the same rules as legal estates, if any new use be limited, or any alteration of the trusts upon which they were settled take place, a devise of them will be revoked. 2 Atk. 579. If A., having devised lands to B., afterwards convey to him a less estate, as for years, to commence from the death of the devisor, this is a revocation of the devise to B., (Cro. Jac. 49;) but a grant only of an estate for years is not a revocation of a devise in fee, (2 Atk. 72;) or if A., after devising in fee, mortgage his lands or convey them in fee to trustees to pay debts, though this is a revocation at law, it is not so in equity, except pro tanto. I Vern. 329, 342. See also 3 Ves. Jr. 654.CHITTY.

13 See most of the cases collected, 1 Saund. 277, n. 4; and see the principle, Gilb. U. & T. 116, 117. 1 Co. 105, 106. 6 T. R. 518. If an estate is given to A. and his heirs, or to A. and the heirs of his body, or any interest whatever to A., and A. dies before the testator, the devise is lapsed and void, and the heirs of A. can claim no benefit from the devise. White vs. White, 6 T. R. 418. 1 Bro. 219. Doug. 330.

A father devised his estate to his eldest son and the heirs of his body, and, upon failure of his issue, to his second son in like manner in tail. The eldest son died before the father, leaving several children; and the father, supposing that the eldest of them would take under the devise, made no alteration in his will. The consequence was that the devise lapsed, and the second son was entitled by the will to an estate-tail in exclusion of the children of the eldest brother, the first objects of the father's bounty and regard. The court of King's Bench in Ireland decided in favour of the grandson; but that decision was reversed by the King's Bench and house of lords here, the question being too clear to admit a doubt. 6 T. R. 518. 1 Bro. 219. Doug. 330.-CHRISTIAN.

It was long a prevailing opinion that, if a man devised particular lands by name, which he had not at the time, but afterwards purchased, or devised all lands which he should die seised of, that such devises would be valid. And it is curious that chief-jus tice Saunders, a consummate lawyer, under this impression devised "all lands which he had or afterwards should have in Fulham." His executors were Holt and Pollexfen, chief-justices, and serjeant Maynard, who differed as to the validity of the devise, the serjeant holding the opinion which is now established, and the two chief-justices that which has been determined not to be law. Lawrence vs. Dodwell, 1 Lord Raym. 438. Holt, however, lived to change his opinion; and the law is now settled as laid down in the text.-Coleridge.

But the statute 1 Vict. c. 26 has abolished this distinction, and all property, of whatever kind, or of which a man is possessed or entitled at the time of his death, passes by his will as the instrument now, with reference to the real and personal estate comprised in it, speaks and takes effect as if executed immediately before the testator's death, un less a contrary intention appears by the document itself.- KERR.

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

2. That quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est:(d) but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui hæret in litera, hæret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso. (e) And another maxim of law is, that "mala grammatica non vitiat chartam;" neither false English nor bad Latin will destroy a deed. (f) 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 *380] disjointed parts of it. "Nam ex antecedentibus et consequentibus fit optima interpretatio." (g) And 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.(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 is the agent or contractor, and in favour of the other party. "Verba fortius accipiuntur contra pro. ferentem." As, if tenant in fee-simple grants to any one an estate for life, gene. rally, it shall be construed an estate for the life of the grantee.(j) 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 am biguous 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 deed-poll: for the words of an indenture, executed by both parties, are to be 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 deedpoll, 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, 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.()

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 to have and to hold during life, generally, it 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. That, in a deed, if there be two clauses so totally repugnant to *381] each other, that they cannot stand together, the first shall be received,

and the latter rejected;(n) wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand.(0) 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)

(*) And. 60.

(e) 1 Bulstr. 175. Hob. 304.

(d) 2 Saund. 157.

Hob. 27.

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

() 1 Bulstr. 101.

() 1 P. Wms. 457.

() Plowd. 156.

(5) Co. Litt. 42.

(*) Co. Litt. 134.

() Bacon's Elem. c. 3.

(m) Co. Litt. 42.

(") Hardr. 94.

Co. Litt. 112.

(P) Cro. Eliz. 420. 1 Vern. 30.

"But this distinction does not appear to be recognised at the present day, and the rule of construing most strictly against the grantor has frequently been applied to indentures. 1 M. & W. 556. 5 B. & C. 842.-KERR.

15 Such was held to be the law in the time of lord Coke. See, accordingly, 6 Ves. 102. 5 Ves. 247, 407. But now, where the same estate is devised to A. in fee, and afterwards to B. in fee in the same will, they are construed to take the estate as joint-tenants, or tenants in common, according to the limitations of the estates and interests devised. 3 Atk. 493. Harg. Co. Litt. 112, b., n. 1.—CHRISTIAN.

7. That a dovise 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 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 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;(s) 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.(t) But, to avoid confusion, no such cross-remainders are allowed between more than two devisees :(u) and, in general, where any implication

See page 108.

See page 115.

() H. 13 Hen. VII. 17. 1 Ventr. 376.

Freem. 484.

(*) Cro. Jac. 655. 1 Ventr. 224. 2 Show. 139.

16 In the celebrated case of Perrin vs. Blake, (Burr. 2579,) the question was 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. The devise in substance was as follows. The testator declared, "It is my intent and meaning that none of my children should sell or dispose of my estate for longer term than his own life; and to that intent I give my son John Williams my estate during his natural life, remainder to my brother-in-law during the life of my son John Williams, (the design of that being to support the contingent remainder,) remainder to the heirs of the body of John Williams." Lord Mansfield and two other judges of the court of King's Bench determined that John Williams took an estate for life only; but, upon a writ of error to the exchequer-chamber, the decision was reversed, and six out of eight of the other judges held that John Williams took an estate-tail, which, of consequence, gave him an absolute power of selling or disposing of the estate as he pleased. The discussion of this subject called forth a splendid display of legal learning and ingenuity. Yet it has been observed by a learned judge that, as one of the judges held that John Williams took an estatetail, because he was of opinion that such might be presumed to be the testator's intention, no argument in future can be drawn from this case, because one-half of the judges relied upon the ground of intention alone. And the editor entirely concurs with that learned judge that it is the first and great rule in the exposition of wills, and to which all other rules must bend, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law, that is, provided it can be effectuated consistently with the limits and bounds which the law prescribes. To argue that the intention shall be frustrated by a rule of construction of certain words is to say that the intention shall be defeated by the use of the very words which the testator has adopted as the best to communicate his intention, and of which the sense is intelligible to all mankind. 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 justice are, or ought to be, as much at liberty, or rather under an obligation, to effectuate that intention as far as the law will admit, as if he had expressed it in the most apt and appropriate language. 1 Bla. Rep. 672. 4 Burr. 2579. Doug. 329. Fearne, 113. Harg. Tracts, 351, 490.-CHRISTIAN.

17 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. And courts of law have laid it down as a rule that the heir shall not be disinherited but by a plain, and not merely probable, intention. Doe vs. Wilkinson, 2 T. R. 209.CHITTY.

Is The contrary has for some time been fully established; and this has been 'aid down by ord Mansfield as a general rule, viz., wherever cross remainders are to be raised be