stress upon the fact, whether a fee is given first, and then words used indicating an expectation that the devisee will only enjoy the use during her life, or the life-estate is first given, and then the tenant for life is given a power to dispose of the remainder. In the former case the courts have, more commonly, held the devise to create a fee, and in the latter, only a life-estate, with power of appointment in regard to the remainder." But it seems to us, these and similar cases must depend upon their own peculiar circumstances. 8. A devise to three persons and their heirs, or the survivor of them, "in the order in which they are now mentioned," creates a clear case of repugnancy. Since it is impossible for two or more persons to take jointly, and in succession, and as it is obvious the testator did intend to create a joint interest, or he would not have used terms so clearly indicating that, and the additional words, in that view, can have no meaning, under any possible conjecture, they must be rejected, as simply unmeaning.18 And a gift to two, for their joint lives, followed by a gift over, after the decease of both, will be construed the same, as if it had been given during the life of the survivor.19 9. It seems to be agreed upon all hands, that words shall not be rejected as repugnant, unless it become impossible to give them any reasonable application to the subject-matter; and then only, when it seems obvious from the context, taking in the entire scope of the will, that such result comes nearest the testator's intention; and that where there seems an invincible repugnancy, and it is impossible to determine which clause the "Doe d. v. Thomas, 3 Ad. & Ellis, 123. See also, Anonymous, 3 Leon. 71; Barker v. Barker, 2 Simons, 249; Brocklebank v. Johnson, 20 Beav. 205; Pasmore v. Huggins, 21 Beav. 103; Reece v. Steel, 2 Simons, 233. See also, the late case of Stanley v. Stanley, 2 Johns. & H. 491. 18 Smith v. Pybus, 9 Vesey, 566. 19 Townley v. Bolton, 1 My. & K. 148. See also, Harvey v. Harvey, 5 Beȧv. 134. testator did intend to have prevail, other things being precisely equal, the latter clause shall prevail over an earlier one.20 And in regard to the degree of certainty of intention to be gathered from the will, as applied to the subject-matter, which will justify the rejection of one of two conflicting provisions, no satisfactory universal rule can be laid down. The most which can be said is, that it must be that degree of certainty which satisfies the judicial mind, and which indicates that course, as being the safest, and most likely to effectuate the intention of the testator, all things considered.21 10. The general rule deducible from the cases, in regard to departing from the natural import of the words is, that it is not to be done, where there is any doubt in regard to that being the intention of the testator.22 11. The rule in regard to the effect, of the reasons assigned, upon the words of a bequest is, that an express bequest, or power, is not controlled by the reason assigned, which, though may aid the construction of doubtful, cannot warrant the rejection of clear, words.23 it 12. In the construction of all instruments in writing there will arise many discrepancies, and apparent contradictions, "Morrall v. Sutton, 4 Beav. 478; s. c. 1 Phillips, 533. See here the very lucid and thorough exposition of the subject, by the conflicting opinions of Parke, B., and Coleridge, J. " See Chambers v. Brailsford, 18 Vesey, 368; Mellish v. Mellish, 4 Vesey, 45, 48. In Chambers v. Brailsford, supra, the Master of the Rolls, Sir William Grant, thus defines the rule, as that which governs the conduct of courts of equity. "The devise, as it stands, is not so insensible or contradictory, as to drive the court to the necessity of expunging or adding words to give it meaning." "Thompson v. Whitelock, 5 Jur. N. s. 991. Cole v. Wade, 16 Vesey, 27; Sir R. P. Arden, M. R., in Kennell v. Abbott, 4 Vesey, 802, 808. By the Civil Law, a false reason given for a legacy is not of itself sufficient to destroy it, unless fraud appears, from which it may be presumed that, if known, it would not have been given. Ib. which may be so far explainable, by resort to other portions of the instrument, and the application of the words used to the subject-matter, as to render them reasonably consistent. In such cases, it will always be the duty of courts to give effect to them. And where full effect cannot be given to all such provisions, to carry the same into effect as far as the thing is practicable. And it is generally esteemed a misfortune, and more or less evidence of defect, either in the instrument or the court, or both, where this cannot be done, with reasonable satisfaction to all parties concerned. And the facts of cases are so infinitely diversified, that it would be a foolish conceit to suppose, that any specific rules, beyond those of the most general character, could be laid down in regard to the subject. And it is proverbial, that cases in regard to the construction of wills, depend so much upon the facts, that one is little guide for the decision of others, unless the facts are the same, or nearly so. We shall have occasion to refer to this subject again, under the title of Legacies. 13. The American courts seem to have generally adopted the rule, in the construction of wills, that where there is an irreconcilable repugnancy in the different portions of the instrument, and the difficulty is not relieved by any of the other rules of construction applicable to the case, and both cannot operate, the latest shall prevail over that which is earlier in time.24 But this rule only applies, as a last resort, and then only to the extent of giving the latter clause its full operation and effect.25 And in that case only, when the different portions are wholly irreconcilable.26 It is proper to say, that this rule goes upon the presumption that the testator may have changed his intention "Stickle's App. 29 Penn. St. 234; Evans v. Hudson, 6 Ind. 293; Dawes v. Swan, 4 Mass. 215; Parker, Ch. J., in Braman v. Stiles, Pick. 460, 463; Bartlett v. King, 12 Mass. 542. 25 Inglehart v. Kirwan, 10 Md. 559. 26 Theo. Seminary, Auburn, v. Kellogg, 16 N. Y. 83. while giving expression to his testamentary dispositions, which is indeed supposable, but highly improbable. The more probable, and just, exposition of the matter is, that having reviewed what he had written, and finding his intent obscure, he may have added, what appears to be his final determination, as a last expression of what he most desired. The same rule is applicable to all cases of apparent repugnancy; that which is clearly expressed should be suffered to stand, and that which is more obscure give place; upon the ground that, by so doing, we are more sure to reach the testator's intent, than by any other course.27 14. The court is bound to give effect to every word in the will, so far as that can be done, without controverting the general intent, as clearly gathered from the whole instrument.28 But where this is impracticable, the rule of the last clause controlling earlier ones may come in.29 But this rule, as has been before stated, and is often repeated by elementary writers and judges, comes in only, after every attempt to give the whole a consistent meaning has failed, and then only, when the earlier and later declarations are equally clear and unquestionable.30 As where one part of a will gives property to one person, and the same property is subsequently given to another,31 or where * Redding v. Allen, 3 Jones, Eq. 358. See also, upon this general subject, Bradstreet v. Clarke, 12 Wend. 602; Bradley v. Amidon, 10 Paige, 235, where a later clause was held to be controlled by an earlier one. Sweet v. Chase, 2 N. Y. 73; Thrasher v. Ingram, 32 Ala. 645; Kane v. Astor, 9 N. Y. 113. * Gray v. Minnethorpe, 3 Vesey, 105; Constantine v. Constantine, 6 Vesey, 102; Homer v. Shelton, 2 Met. 202; Lasher v. Lasher, 13 Barb. 106. Homer v. Shelton, 2 Met. 202; Pickering v. Langdon, 22 Maine, 430; Smith v. Bell, 6 Pet. S. C. 68, 84; Bradstreet v. Clarke, 12 Wend. 602; Baird v. Baird, 7 Ired. Eq. 265; Evans v. Hudson, 6 Ind. 293; Miller v. Flournoy, 26 Ala. 724. Covenhoven v. Shuler, 2 Paige, 122; Adie v. Cornwell, 3 Mon. 279; Lewis's Est. 3 Whart. 162. "Hollins v. Coonan, 9 Gill, 62. the testator devises first an undivided part of his real estate, and then empowers the executors, in their discretion, to sell the whole real estate, this latter clause will overrule the former.82 And the same construction would probably be given to such provisions, without regard to the order in which they occur in the will. 15. It is familiar to every one, that persons, not much experienced in drawing wills, often jumble the different provisions together, without much regard to their relative importance in the mind of the testator, or to the consideration how far one of the provisions may be dependent upon another. It is therefore the duty of courts to spell out the probable relative importance of the different provisions, and how far one was intended to yield to another, when it becomes impracticable to carry all into effect.33 16. There are frequent illustrations of the transposition of different provisions in a will, in order that an apparent repugnancy may be removed, to be found in the American, as well as the English reports. As where the testator first devises his land in fee to one person, and subsequently devises the same land for life, to another, the first shall take an estate in remainder, after the termination of the life-estate.83 And the construction would be the same if the devises were made in the inverse order, since this is the only mode of reconciling the two. Of two repugnant provisions in a will, the courts naturally incline to carry that into effect, which is most suitable, rational, and probable, all things considered.34 But where the words are clear and distinct, they must be construed in their ordinary sense, notwithstanding the improbability of such construction being the real intention of the testator.85 Pratt v. Rice, 7 Cush. 209. 3 Crissman v. Crissman, 5 Ired. 498; ante, pl. 2. 35 Laroche v. Davis, 1 Jur. 574. |