most pertinent qualifications for it is the legitimate qualification of such a general rule, which becomes the most important to be known, and the most difficult to define. 1. The first and universal qualification of this rule is, that it is the intention of the testator, expressed in his will, which is to govern; and this must be judged of, exclusively, by the words of the instrument, as applied to the subject-matter, and the surrounding circumstances.17 2. Where the general intent of the testator is clear, and it is impracticable to give effect to all the language of the instrument, expressive of some particular, or special intent, the latter must yield to the former,18 but every expressed intent of the testator, must be carried out, where it can be.18 And the general intent overrides all mere technical and grammatical rules of construction.19 But the court cannot remodel the will in order to meet a contingency not in the mind of the testator.20 17 Chrystie v. Phyfe, 19 N. Y. 344, 348; Arcularius v. Geisenhainer, 3 Bradf. Sur. Rep. 64; Jackson v. Laquere, 5 Cow. 221. In Sherry v. Lozier, 1 Bradf. Sur. Rep. 437, 446, it is said, by the surrogate, that "sailor's wills have been considered, in some respects, exceptions to the rules applicable to ordinary cases, not, indeed, in the words of Sir John Nicholl, exceptions to the great fundamental principles of all testamentary dispositions, the intention of the testator, but to some of the rules and presumptions, by which the real intention is to ascertained." 18 Parks v. Parks, 9 Paige, 107; Hitchcock v. Hitchcock, 35 Penn. St. 393; Purnell v. Dudley, 4 Jones, Eq. 203; Workman v. Cannon, 5 Harring. 91. This rule is now clearly established, both in the English and American courts. Jesson v. Wright, 2 Bligh, 56. And it makes no difference whether the general, or the particular intent, is first stated in the will. Jesson v. Wright, supra ; Doe v. Harvey, 4 B. & C. 620; Hawley v. Northampton, 8 Mass. 3; Cook v. Holmes, 11 Mass. 528; Chase v. Lockerman, 11 Gill & J. 185; Land v. Otley, 4 Rand. 213; Reno v. Davis, 4 Hen. & Munf. 283; Den v. McMurtrie, 3 Green. 276. 19 Sorsby v. Vance, 36 Miss. 564; Rose v. McHose's Ex'rs, 26 Mo. (Jones), 20 Lepage v. McNamara, 5 Clarke (Iowa), 124; Stokes v. Tilly, 1 Stockton, 3. In seeking for the expressed intention of the testator, his words are to receive that construction and interpretation, which a long series of decisions has attached to them, unless it is very certain they were used in a different sense.21 4. A clearly expressed intention, in one portion of the will, is not to yield to a doubtful construction, in any other portion of the instrument.21 5. It is a settled rule, too, in the construction of wills, that the existing punctuation, is not to be regarded, if any change in that respect will tend to bring out and render the meaning of the instrument more obvious and unquestionable:22 6. It is no valid objection to carrying out the obvious intention of the testator, if it be not illegal, or against good morals,23 that it is strange, or unnatural, or absurd. But such a construction will, if possible, be adopted, as will uphold the will, and bring it as near reason and good sense as practicable. 7. And the court will give some meaning to the instrument, if any can fairly be gathered from its words, with every allowaable aid to construction.25 18. Some of the American cases allude to the familiar rule, that the heir is not to be disinherited, unless the intent to do so is very clearly expressed.26 And the same rule, in America, . 590; Parks v. Parks, 9 Paige, 107; Jackson v. Housel, 17 Johns. 281. When the strict technical and grammatical meaning of words will tend to defeat the obvious intent of the testator, it is allowable to give them a liberal, or popular, meaning. De Kay v. Irving, 5 Denio, 646; s. c. 9 Paige, 521; Burtis v. Doughty, 3 Bradf. Sur. Rep. 287. "Corrigan v. Kiernan, 1 Bradf. Sur. Rep. 208; Brown v. Lyon, 6 N. Y. 419. Arcularius v. Geisenhainer, 3 Bradf. Sur. Rep. 64. "Bearley v. Bearley, 1 Stockt. 21. "Butler v. Butler, 3 Barb. Ch. 304; Griffen v. Ford, 1 Bosw. 123. 25 Wootton v. Redd's Ex'rs, 12 Grattan, 196. "Areson v. Areson, 3 Den. 458; s. c. 5 Hill, 410; Sherry v. Lozier, 1 Bradf. Sur. Rep. 437, 450. will apply to all the heirs of the testator, unless more remote than children and their issue, or representatives.27 19. It is said in one case,28 "It is our duty to give effect to all the words, without rejecting or controlling any of them, if it can be done by a reasonable construction, not inconsistent with the manifest intent of the testator;" and there is, perhaps, no general form of stating this cardinal rule of construction, which is less exceptionable. 20. There is no deviation from the rule, that all the papers which constitute the testamentary act are to be taken together, embracing the will and codicils, and all papers so referred to as to be incorporated with the same.29 21: The construction of a will depends upon the intention of the testator, to be ascertained from a full view of every thing contained within "the four corners of the instrument." 30 And the natural construction of the words will be adopted, unless there is such an impracticability of so construing them as to authorize their rejecton; or such uncertainty, that no effect can be given to them in that sense.31 22. It seems clear, that a technical construction of words and phrases, although prima facie the one which should prevail, will not be carried to the extent of defeating any obvious general intention of the testator, since wills are often prepared by those wholly unacquainted with the precise technical force of legal formulas, and who, from a consciousness of such deficiency, often exert themselves to drag in such phrases, wherever they suppose they would probably have been adopted by an experienced draftsman.82 Downing v. Bain, 24 Ga. 372; Bender v. Dietrick, 7 Watts & Serg. 284. "Dawes v. Swan, 4 Mass. 208, 215; Cook v. Holmes, 11 Mass. 528; Hall v. Chaffee, 14 N. H. 215. " Westcott v. Cady, 5 Johns. Gh. 343; Leavens v. Butler, 8 Porter, 380. * Hoxie v. Hoxie, 7 Paige, 187, 192. And it makes no difference, if the provisions are plain, whether they be wise or foolish. Manigault v. Deas, 1 Bailey, Eq. 298. "Mowatt v. Carow, 7 Paige, 328; Chambers v. Brailsford, 18 Vesey, 368, 374. Richardson v. Noyes, 2 Mass. 56, 60; Homer v. Shelton, 2 Met. 194, 198; ! 23. It has been declared in recent cases, in the English courts, that, in equity, evidence of the intention of the testator, or of mistake in the preparation of the will, will not be received, and an issue will not be directed on that ground to try whether particular restrictive words were, or were not, part of the will.33 And it was also held, in a very late English case, that although you may not show, by distinct external evidence, what was the skill of the person by whom the will was drawn, you may infer this from the evidence afforded by the will itself, and take it into consideration in construing the will.34 But evidence of statements made by the testator himself, at the time he executed his will, must be rejected, except in the case of a latent ambiguity, or a resulting turn.35 24. The rules of construction of wills are somewhat elaborately discussed by a very learned, experienced, and discreet judge, in the case of Malcolm v. Malcolm,36 upon the question of what words in a will are to have the construction of requiring an indefinite failure of issue, so as to defeat an estate in remainder upon the ground of remoteness. It is here said the inten tion of the testator is to control, so far as it can be gathered from the will itself, and is not in conflict with the rules of law. And the reporter has extracted the additional canon from the case, that if the testator have expressed two intentions, legally inconsistent, the court will stand in the place of the testator, and give effect to that one which the testator would have preferred, if driven to choose between the two. We do not find this language in the opinion of Mr. Justice Wilde, and it seems highly Carr v. Jeannerett, 2 M'Cord, 66; Carr v. Green, id. 75; Brimmer v. Sohier, 1 Cush. 118; De Kay v. Irving, 5 Denio, 646; Lamb v. Lamb. 11 Pick. 375; Inglis v. Trustees, 3 Pet. U. S. 113; Finlay v. King, 3 Pet. U. S. 346, 377; ante, n. 5. 33 Stanley v. Stanley, 2 Johns. & H. 491. Richards v. Davies, 32 L. J. C. P. 3. M'Clure v. Evans, 29 Beav. 422. 36 3 Cush. 472. See also, Osborn v. Shrieve, 3 Mason, 391; Sisson v. Seabury, 1 Summer, 235. improbable he should have used precisely that form of language, since it is at variance with the principles of law, and equally with the decided cases. Nothing more is fairly deducible from the opinion, than that the court will place themselves, as far as practicable, in the position of the testator, and give effect to his leading purpose and intention, as indicated by the words of the will, construed with reference to all attending circumstances. SECTION V. RULES OF CONSTRUCTION OF WILLS IN COURTS OF EQUITY. 1. Testamentary trusts administered exclusively in equity. 2. The illustrations of equitable constructions as numerous as the cases. a. Words, ordinarily, have their natural and popular meaning. b. Such a construction is always preferred to any other. c. Courts of equity lean towards the plain, natural, and just construction. e. A familiar illustration is that the word "money" includes 'stocks, where f. The court will not construe the words of a will by mere conjecture. g. General words, following those more particular, restricted to matters h. The construction of wills little aided by cases not entirely analogous. § 31. 1. We do not intend to imply by the title of this section, that any rules of construction of wills could justly be adopted in courts of equity, which would not equally apply, if the same question arose in a court of law; but we have assumed it merely as a convenient head under which to state some of the more recent rules of construction, which have been adopted by the courts of equity, in declaring the legal effect of wills, as such questions much oftener, arise in those courts, than in the |