can.

terms, yet she shall have an estate for life by implication *; 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 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. But, to avoid confusion, no such cross remainders are allowed between more than two devisees "; (5) and, in general, where any implications are allowed, they must be such as are necessary (or at least highly probable) and not merely possible implica- [ 382 ] tions". (6) And herein 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 it's own particular circumstances, than by any general rules of positive law.

(5) This doctrine is now entirely overruled, and in one of the latest decisions on the subject, (Doe v. Webb, 1 Taunt. 234.) surprise was expressed that it had ever been established, Chambre J. observing that in the oldest case on the subject, Dyer, 303 b. cross remainders had without difficulty been implied among five. The only principle now acted on is to ascertain if possible the testator's intention, and to effectuate it so far as it can be effectuated according to the rules of law.

(6) Upon this subject, Lord Eldon has expressed himself thus, "With regard to that expression, neccssary implication, I will repeat what I have before stated, from a note of Lord Hardwicke's judgment in Coryton v. Hillier, that in construing a will, conjecture must not be taken for implication, but necessary implication means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed." 1 V. & B. 466.

Therefore if the devise were to a stranger after the death of the wife, the wife would not take any thing by implication; for then it might as well be supposed that the testator meant his heir at law to take during the wife's life, as the wife; and where that is so, the obvious title of the `heir at law will be preferred, Smartle v Scholar, 2 Lev. 207.

AND thus we have taken a transient view, in this and the 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 it's 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 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 [383] 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 ex

plication 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 enquiries with the words of sir Edward Coke : " Al"beit 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."

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y Proeme to 1 Inst.

CHAPTER THE TWENTY-FOUrth.

OF THINGS PERSONAL.

UNDER the name of things personal are included all sorts

of things 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 it's 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 land 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 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 opalent merchants and stockholders. And hence likewise may be derived the frequent forfeitures inflicted by the common [385] law, of all a man's goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to deserve so severe

a punishment. Our antient law-books, which are founded upon the feodal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the Mirror, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented it's quantity and of course it's value, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a light nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other: frequently drawn from the rules which they found already established by the Roman law, wherever those rules appeared to be well grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to antient usages, and a certain feodal tincture, which is still to be found in some branches of personal property.

BUT things personal, by our law, do not only include things moveable, but also something more: the whole of which is comprehended under the general name of chattels, which, sir Edward Coke says, is a French word signifying goods. The appellation is in truth derived from the technical Latin word catalla: which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was applied to all moveables in general. In the grand coustumier of Normandy a chattel is described as a mere moveable, but at the same time it is set in opposition to a fief or feud: so that not only goods, but whatever was not a feud, were accounted chattels. And it is in this latter, more extended, negative sense, that our law adopts it; the idea of goods, or moveables only, being not sufficiently comprehen- [ 386 ] sive to take in every thing that the law considers as a chattel

a 1 Inst. 118.

⚫ Dufresne, II. 409.

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