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CHAP. III.

EVIDENCE AND CONSTRUCTION (1).

PART I.

Double Portions.

THE rule prevailing in courts both of law and equity, that external evidence may be received to REBUT PRESUMPTIONS, submits the operation of written instruments, more extensively than any principle hitherto noticed, to the controul of extrinsic circumstances“. In courts of equity, more especially, this allowance has prevailed. The genius of the com

· Lamplugh v. Lamplugh, 1 P. Wms. 112.

General rules (1) The following general rules respecting the construction of for the construco wills seem to be pretty steady in their application. The construction

of wille must be the same in courts of law and equity, 1 Bl. Rep. 377. The order of words is not to be regarded, but a transposition may be made to render a limitation or disposition sensible, Hob. 75, Spark v. Purnell, 2 Vez. 82, East v. Cook, id, 74, Duke of Marlborough v. Lord Godolphin, id. 248. Is respect to which a court of equity has no more power than a court of law. But this can only be done to come at the meaning of the testator, and not to

mon law inclines it to generality and certainty, and even its presumptions are in some cases too in

alter or affect the operation of the devise; and it ought never to be done where the words are plain and sepsible, much less to let in different devisees or legatees in a will: for to do that would be to make a new will, ibid. et vid. 2 Leon. 165. And repugnant words may be rejected, 2 Vez. 278, Boon v. Cornyforth, 2 Lord Raymond, 831, Cole v. Rawlinson. The intent of the testator is to be the rule of construction if the words will bear it out, but if the force of the words be such that the intent cannot be complied with, the rule of law must take place, 2 Vez. 248, Brownsword v. Edwards. And wills should be so construed as to preserve estates in the intended channel of descent, Cro. Car. 185, 1 Leon. 285, 2 Vez. 615, 2 Str. 798. The same words of a will may have a differens force as applied to different subjects or descriptions of estate, 1 P. Wms. 663, Forth v. Chapman, 2 Vez. 616. Effect ought to be given, if possible, to the whole will, and a codicil is to be considered as part of it, 3. Vez. jun. 105, Gray v. Minethorpe; and a construction may be made to support the intention upon the whole will even against strict grammatical rules, 11 Vez. jun. 148. An express disposition cannot be controuled by inference, 1 Vez. jun. 269, Collett v. Lawrence. Words of desire are of imperative obligation, if the object be certain, Prec. in Ch. 200, Eccles v. England, 1 Bro. C. C. 142, Harland v. Trigg, 2 Bro. C. C. 38, Pierson v. Garnett ; unless there is plainly a discretion intended to be given, Ambl. 686, Cunliffe v. Cunliffe, 10 Vez. jun. 522, Morrice v. the Bishop of Durham. If a testator uses technical phrases he must be supposed to understand them, unless by other parts of the will he, manifests the contrary, 3 Bro. C. C. 60, Phillips v. Garth, 1 Bro. C.C. 31, Green u. Howard, 8 Bro. C. C. 284. And, prima facie, words must be understood in their legal sense, unless a contrary intent plainly appear, 5 Vez.jun. 401, Holloway v. Holloway. If a tes. tator expresses himself incorrectly the court will supply proper words, if the meaning appear, 3 Bro. C.C. 404, Dodson v. Hay, Doe d. Leach v. Mecklem, 6 East. 486. General words will be con

flexible to be disproved. But equity, as its rules are framed more for particular than general relief,

trbuled to render the whole will consistent, 6 Vez. jun. 129, White more v. Trelawney. Where there is no connection by grammatical construction, or by direct words of reference, or by the declaration of some common purpose, between distinct devises in a will, the special terms of one devise cannot be drawn in aid of the construction of another, though in its general terms and import it may be similar, and apply to persons standing in the same degree of relationship to the testator, 9 East. 267, Wright ex dem. Compton v. Compton. In trying the meaning of phrases used in a will all circumstances may be looked at, in which the court might have been called upon to determine the meaning of the same phrases applied to a different state of facts, 11 Vez. jun. 457, Earl of Radnor v. Shafto.

Every word ought to have an effect if possible, and not incon. sistent with the general intention, which if manifest is to controul, Roll. R. 319, Blandford v. Blandford, 6 Vez. jun. 100, Constantine v. Constantine. The general words of a will may be restrained in cases where it appears that the devisor did not intend to use them in their general sense, 2 Burr. 912, Strong v. Teate, and 8 T. R. 118, Doe on dem. Reade v. Reade, which last case may be added to the note in page 71, as illustrative of the point there adverted to. Where there are two inconsistent devises in the same will, Lord Coke says the last shall prevail: cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est, Co. Litt. 112, b. Plowd. 541, but the authority of this position has been much contested, see Mr. Hargrave's note on this passage. In every will there is a tacit condition both in law and equity, that whoever would derive a benefit under it must acquiesce in the whole of it, however disjointed the parts, 1 Bl. Rep. 377, Molyneux v. Scott.

Croke, Justice, laid down three rules which, he said, if observed would open all the doors in every will: Ist. No will ought to be construed per parcella but by the entirety; 2d. No contrariety or contradiction to be admitted; 3d. No nugation, nor any thing nuga. tory ought to be in a will; 2 Bulst, 178,

allows all its presumptions to be repelled by opposite testimony, and by testimony of every

kind.

The same word in the same will should be construed in the same sense, 2 Ch. Ca. 169, Whitmore v. Lord Craven. It is an ordinary rule that where a former clause in a will is express, positive, and particular, a subsequent clause shall not enlarge it, Barn. C. R. 261, Roberts v. Kiffin; nor shall any argument or inference be made from the other parts of the will to controul it, 8 Vez. jun. 42, Jones v. Colbeck. Constructions of wills shall be made according to estates at common law by deed, unless something in the intent of the will appear to the contrary, Carth. 5, per Bridgman, C. J. cites 6 Rep. 16, Wild's case. Wills in general are construed from the making, unless circumstances, or the tenor of them, shew that the construction should be from the death, but the intermediate time is not to be regarded, 1 Vez. 295. Mistakes in a will are never to be supposed, if any reasonable construction can be found out, 1 Atk. 415, Purse v. Snaplin. Trustees always take a fee under a will, where the

purposes

of the trust cannot otherwise be answered, 1 Vez. 491, Gibson v. Lord Mountford. The intention of a testator must be construed in consistency with the rules of law, so as not to be considered as intending to limit a fee upon a fee; or to create a perpetuity ; to make a chattel descendible to heirs ; to put the freehold in abeyance; or to prevent a tenant, in tail from suffering a recovery, Dougl. 341, Hodgson v. Ambrose.

If words admit of a two-fold construction, the rule is to adopt such as tends to make good the instrument, even in the case of a deed, much more of a will. The intention of a testator is not to fail because it cannot take effect to the full extent, but it is to work as far as it can.

A will is not to be controuled on account of an unmeritorious object; nor does the amount of property, nor the want of prudence in the disposition afford a fair ground for controuling a will, 4 Vez. jun. 312, 313, 329, 340, Thelluson v. Woodford. A videlicet shall be rejected if repugnant, not if it can be reconciled and made restrictive, 3 Vez, jun, 194, Wilson v. Morent, id. 65, Rumbold v. Rumbold.

;

Presumption against double portions.

Thus it is a settled rule of presumption in equity, (borrowed from the civil law) that if a father gives a legacy to a child, and afterwards advances the like sum to the same child, such advancement operates as an ademption of the legacy. This presumption was opposed in Ellison v. Cookson", by extrinsic evidence, consisting of declarations and correspondence, which were admitted on the above doctrine

i Vez. jun. 100.

Where the whole property is given with a particular interest out of it, it operates by way of exception out of the absolute property; and where an absolute property is given, and a particular interest in the mean time, as until the devisee shall come of age, and when he shall be of age then to him and his heirs, the rule is that it shall not operate as a condition precedent, but as the description of the time when the remainder-man is to take in possession, 1 Burr. 228, Goodtitle v. Whitby, 3 Rep. 16, Boraston's case, 3 T. R. 41, Doe v. Lea, 6 Vez. jun. 239, Hanson v. Graham. 9 Vez. jun. 229, Lane v, Goudge.

• And must be read as or,' where it is necessary, to put a reasonable construction on the will, 2 Atk. 643, Read v. Snell, 1 P. Wms. 434, and note 2, 3 Atk. 86, 193, 408, or where it is

necessary to give effect to all the words, 7 Vez. jun. 459, 3 Vez. jun. 450, 6 Vez. jun. 311. So or' is sometimes to be read as a copulative, Cro. El. 525, Pollexfen, 645, 2 Str. 1175, 3 Atk. 390, 1 Wils. 140, 9 East. 366, 6 Vez. jun. 341, and a disjunctive at the end of a period shall not disjoin the preceding sentences, if the intent is against it, 3 Atk. 391, 12 Vez. jun. 112. Notwithstanding all the parties under a will may be volunteers, it is not necessary that the words should be taken as they are, but they may be varied, 2 Atk. 576, Bagshaw v. Spencer. But it is an universal rule, that words having an obvious construction, are not to be rejected upon a suspicion that testator did not koow what he meant, 5 Vez. juo. Miloer v. Slater,

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