the addition of the words 'heirs and assigns forever.'". His lordship came to the opposite conclusion.17 11. Where it appears, that the testator first defines the persons and property which were the subject of the devise, and waits till the end of the paragraph to point out the estate devised, that will extend to all the devises in that particular paragraph of the will.18 "The word 'item' shows, that the testator is dealing with a new subject, and that the words following apply to that only, and not to the preceding matter, unless the intention that they should do so is plain." 19 Under a devise of the testator's house at A. (he having two others, at different places), and certain personal estate, in and about the place at A.," and also my household goods and furniture, pictures, plate, linen, china, liquors of all sorts, and brewing vessels, and likewise my watches and personal ornaments, it was held, that the household goods, furniture, &c., at both the other houses, passed by the bequest.20 And where the testator, among several gifts of sums of £500 each to his grand nephews and nieces, some of which were to be sunk in annuities for life, gave £300 to Joseph Walker," annuity for life," "Martha £300 an annuity for life," it was held, that these persons were each entitled to an annuity for life of £300, and that the court could not resort to the context of the will, in search of the meaning of the words of a particular clause, unless it is fully satisfied that the meaning is different from that which the words naturally import.21 The court cannot be governed, in the construction of the will, merely by the connection of the parties.22 " Paree v. Archbishop of C. 14 Vesey, 364, 369; Doe d. v. Pearce, 1 Price, 353. Fenny v. Ewstace, 4 M. & S. 58. 18 19 Bayley, J., in Doe d. v. Westley, 4 B. & Cr. 667. ers, 26 Beav. 81; Hopewell v. Ackland, 1 Salk. 239. word "likewise," see Paylor v. Pegg, 24 Beav. 105. "Willis v. Curtois, 1 Beav. 189. See also, Gower v. Tow- "Walker v. Tipping, 9 Hare, 800. Lord Alvanly, in Mellish v. Mellish, 4 Sir G. Turner, V. C., in Walker v. Tipping, supra. 12. It has been often held, that where the intention of the testator is apparent, upon the whole will taken together, the court must give such a construction, as will support the intent, even against strict grammatical construction of the words. And to effect this evident intention, as before stated, words and limitations may be transposed, supplied, or rejected.23 The testator's intention is to be ascertained from the whole will taken together, and not from the language of any particular provision, or clause, taken by itself.24 The testator will be presumed to have used words in his will, in their primary and ordinary signification, unless from the context, or by reference to extrinsic circumstances, it is evident he intended to use them in some secondary, or other sense, and where the primary signification of the words would render the provisions of the will insensible, absurd, or inoperative.25 13. Where an estate tail is given, by a codicil, the court will not resort to the will to alter and cut down the devise, contained in the codicil, even where the testator directs the codicil to be made part of the will, and the same devisee is named in the will, with reference to the same property.26 14. Where the will is arranged under different sections, designated numerically, as First; 2dly; 3dly; and in the last clause come these words, I give to J. C. all my houses and premises Vesey, 45, 48, thus defines the degree of certainty, which will allow the court to reject a word from the will, upon the ground, that it had crept in by mere mistake: "I really believe it was so, but I dare not, as a judge, take upon myself to say this word cannot be reconciled with the rest of the will." And his lordship adds, in regard to alleged mistakes or omissions in wills, "all the court has to do, is to see whether it is possible to reconcile that part with the rest, and whether it is perfectly clear, upon the whole scope of the will, that the intention cannot stand with the alleged mistake or omission." Upon the whole, the question is, whether there is a clear, demonstrable mistake." 23 Pond v. Bergh, 10 Paige, 140. 24 Hone v. Van Schaick, 3 Barb. Ch. 488. 25 Cromer v. Pinckney, 3 Barb. Ch. 466. 56 Biss v. Smith, 2 H. & Norman, 105. 66 at P. I also give to J. C. all that my land at P. and R. to him,. his heirs and assigns forever, it was held, that J. C. took a fee in the house and premises, as well as in the land. Lord Ellenborough, Ch. J., said, that each division was to be considered by itself, and as entire in itself, and that words, at the close of one of these divisions, might be applied to all the devises to the person named in that division.27 15. The result of all the cases, in regard to supplying words, seems to be, that it cannot be done, unless it is clear there has been an omission, and also clear what that precise omission was. And the doctrine of the later and best considered cases is, that the omission cannot be supplied, unless the order of the different portions of the instrument, the collocation of the sentences, or something else, in the grammatical construction, affords a clear and satisfactory ground, of presuming precisely what implication is to be made. In other words, that you cannot, by mere construction, incorporate distinct provisions into the will, however certain it may be, that they were omitted by mistake; but the defects to be supplied by construction must be such as necessarily suggest themselves, from the words used, as the only reasonable and sensible meaning, fairly deducible from the whole instrument. 16. The cases in the American courts, where words have been supplied, or changed, are so numerous, and follow so closely in the track of the English decisions, that we should not be justified in discussing them in detail. "Die without issue," is often read "Die without leaving issue," or "without issue living," in the American courts.28 17.. In order to reach the obvious general intent of the testator, implications may supply verbal omissions, and all inaccuracies of grammar, or impropriety in the use of terms, may be corrected, if the general purport of the instrument be clear Fenny d. v. Ewstace, 4 M. & S. 58. *Moseby v. Corbin, 3 A. K. Marsh. 289; Holms v. Williams, 1 Root, 332. and manifest.29 And words may be supplied, where the sense of the clause, as collected from the context, plainly requires it.80 So words may be supplied, and the grammatical construction disregarded, in order to conform to the clear intent of the testator, as indicated by the whole will.31 18. The cases in the American reports, where "or" is construed "and," and vice versa, are so numerous, that it would be a waste of time to state them at length, as each case depends mainly upon its own peculiar facts, and will not therefore afford much guide to the decision of any other. And we shall recur to the subject hereafter.32 19. It is very common to construe what seems a life-estate, in terms, to create a fee in remainder, because of a prior lifeestate having been expressly created, in another, in regard to the same property, as where the testator gave a portion of his estate to his wife, and then gave to his son his house, barn, and warehouse, "after the decease of my well-beloved wife," it was held to create a fee in the son, it being evident, from the whole will, that the testator must have intended to benefit the son beyond the mere right of enjoying the use of the premises. during his life, after the decease of his wife.33 And where it is apparent, from some of the provisions of the will, that other corresponding provisions must have been intended, the courts will supply such portions of the instrument as appear obviously indispensable to carry out the clear intention of the testator.34 29 Den v. McMurtrie, 3 Green, 276. 30 Dew v. Barnes, 1 Jones, Eq. 149. 31 Reid v. Hancock, 10 Humph. 368; Judy v. Williams, 2 Carter, 449; Jainson's App., 1 Mann. 99; 2 Wms. Exrs. by Fish, 978. 32 Post, § 35; Butterfield v. Hoskins, 33 Maine, 393; 2 Wms. Exrs. by Fish, 979, and cases cited; Brewer v. Opie, 1 Call, 184; Jackson v. Blansham, 6 Johns 55; Holmes v. Holmes, 5 Binn. 252. 33 Butler v. Little, 3 Greenl. 239; Cook v. Holmes, 11 Mass. 528; post, tit. Legacies. Rathbone v. Dyckman, 3 Paige, 9. But, as we said at the beginning, courts will supply only such words, as it is clear it was the intention of the testator to use, and not such as appear to be requisite to carry into effect the probable intention of the testator.35 SECTION VIII. TRANSPOSITION OF WORDS. 1. Allowed, to render will clear, but not, to change its natural import. 2. The court may reach the obvious intent of the testator, where it can be done by transposition. 3. The absurdity or unreasonableness of its provisions will not defeat a will, if it have any intelligible meaning. 4. Words of local description, applied to one devise, referred to another, and vice versa. 5. Reference to American cases illustrative of the rule. § 34. 1. Where a clause in a will is insensible, or absurd, and can be rendered sensible, and consistent with the general tenor of the will, and with the extraneous circumstances, by transposition, it is generally allowable.1 But words in a will, that are good sense, are not to be transposed.2 And in no case, 35 Ante, n. 1; Creswell v. Lawson, 7 Gill & J. 227, where "all two lots" was read "all those two lots." 1 East v. Cook, 2 Vesey, 30, 32, where it is said, The "order of words in wills not considered, if the intent better answered otherwise." And in Duke of Marlborough v. Godolphin, 2 Vesey, 74, it is said: Transposition of words in a will, to make a limitation sensible, but not to let in different legatees. Lord Hardwicke here, thus explains the rule: "A court of law, as well as of equity (and a court of equity has no greater latitude in construction of wills, and transposing the words thereof, than a court of law has), will, to make sense of a will, otherwise insensible," and to make it take effect, rather than be totally void, often transpose words, to attain the intent, that on the face of the will, the testator had. Luxford's case, 3 Levinz, 125. See also, Green v. Hayman, 2 Ch. Cas. 10; Sparke v. Purnell, Hob. 75; Gibson v. Lord Montfort, 1 Vesey, 490; Mohun v. Mohun, 1 Swanst. 201. 2 Cole v. Rawlinson, 1 Salk. 236. |