§ 42. 1. THE subject of uncertainty in wills has been incidentally alluded to in many of the preceding chapters,' but it seems requisite to devote some space specifically to that topic. We cannot forbear to say, in limine, that this is one of those subjects where the decisions are so much affected by peculiar circumstances, that one case will afford very little aid in determining another, not very similar in its state of facts. We think, too, that this class of cases, when not coming within any precise rule, or exception, connected with the subject, is liable to be determined, very much upon the taste or the whim of the court. One judge will be so much impressed with the importance of making every will intelligible, and allowing no obstacle to defeat the purpose of the testator, that he will always find some way of escape from all perplexities of the kind. Another will dwell so much upon the importance of keeping all exposition within the range of the words of the will, that he will often allow uncertainties, which embarrass no one but himself, to mystify and obscure his perception, to such an extent, that his decisions will often seem to partake more of the character of ingenious doubts, than of sound expositions of the best mode of escaping doubts.2 2. We shall not attempt to analyze and classify the early cases upon this subject, except as they have been recognized in 1 Ante, § 32. 21 Jarman, ed. 1861, 330, et seq. This very sensible writer dwells very much at length upon the favorable construction which wills have received, out of deference to the ignorance and inexperience of testators who often attempt, either to draft, or alter their wills. Citing, 3 Keble, pl. 23, 49; Henniker v. Henniker, 12 Jur. 618; Baker v. Newton, 2 Beav. 112; Langley v. Thomas, 6 DeG., M. & G. 645. In the case of Baker v. Newton, the M. R., Lord Langdale, held the bequest void for uncertainty, when it would seem not very difficult to conjecture what the testator must have intended. And in Langley v. Thomas, although the V. Ch. Stuart, and the Lord Chancellor, Cranworth, held precisely opposite views of the meaning of the testator, the will was upheld by both of them, upon their differing theories. These cases will illustrate our meaning in what we have said in the text. the later decisions, in support of some general rule of construction, affecting the question of the degree of uncertainty which will render a testament void. We agree fully with the leading proposition contained in Mr. Jarman's testimony on this point,3 but we believe the first reason, assigned by him for the result, has very little to do with it, and that the chief reason why courts, in the later cases, have felt reluctant to admit uncertainty as a ground of avoiding the formal disposition of property, will be found in the very general feeling in all judicial tribunals, whether in this country or in England, that the earlier decisions upon this point, were, many of them, unreasonable and indefensible, and not a few of them verging very closely upon the ludicrous and the absurd. The consequence of this conviction has been, that in some instances there has been manifested a disposition to press towards the opposite extreme, and instead of yielding to slight grounds of doubt and uncertainty, there may be some cases found, where the courts seem to have supplied the most important provisions in wills, upon grounds little short of mere conjecture, and, by supplying defects and altering the arrangement of the materials, rather to have made a new testament for the party, than to have given an allowable construction to one already in existence. 3. We should certainly not feel disposed to encourage the adoption of either extreme. But we believe it will be found, 3 1 Jarman, ed. 1861, 331. This reliable writer here says, " In modern times, instances of testamentary gifts being rendered void for uncertainty, are of less frequent occurrence than formerly, which is owing, probably, in part to the more matured state of the doctrines regulating the construction of wills, which have now assigned a determinate meaning to many words and phrases, once considered vague, and insensible, and in part to the more practical skill of courts, in applying these doctrines. Hence the student should be cautioned against yielding implicit confidence to any early cases, in which a gift has been held to be void for uncertainty, the principle whereof has not been recognized in later times." Citing Pride v. Atwicke, 1 Keb. 692, 754, 773; Price v. Warren, Skinner, 266; Eq. Cas. A b, 356, pl. 2. that in very few cases are wills so defective and confused as to be incapable of being brought into harmony, and intelligible meaning, by fair and allowable construction, within the ordinary range of judicial administration; and that it is the duty of courts to uphold every contract, and especially, every instrument of a testamentary character, where the thing can fairly be done, and that it is little creditable to courts to evade just responsibility, in such cases, by shielding themselves behind some antiquated case, which might seem to justify a decision against its validity, on the ground of uncertainty; when, at the same time, every member of the court was convinced, from the words of the will, what the testator must have intended; and that he could have meant nothing else. And we should at the same time deprecate that latitudinarian mode of construction, whereby courts have attempted to bridge over every chasm in the language, however broad and incomprehensible, by a lawless resort to conjecture, based upon no recognized canons, of construction; or what is still more objectionable, if possible, by an utter disregard of the natural and ordinary meaning of the words used, and guided only by that undefined light, of extrinsic circumstances, in no just sense admissible in aid of the legal construction of the instrument. * The case of Bowman v. Milbanke, T. Ray. 97, shows upon how slight grounds courts have sometimes doubted. The words of the bequest found by the special verdict were, "I give all to mother, all to my mother," and it was held, lands did not pass, as it was wholly doubtful and uncertain to what the word "all" referred. 1 Lev. 130; Sid. 191; 1 Jarman, 331. It may be uncertain what is included under the word "all." That must be determined by proof of what' the testator had, but it is certain, by such a form of expression, twice uttered, he could scarcely mean less than he said, "all," "all." Almost any one, unless it were an equity judge; some disciple, perhaps, of the great prince of doubters' Lord Eldon, would find it difficult to raise a doubt in such a case; and if he could succeed in conjecturing different meanings which the testator might have had, we believe a delicate man would feel some reluctance at the expression of such doubts, unless they rested upon grounds more substantial than any which now 4. It is laid down by Swinburne," that a bequest to any person by name, where there are two persons by the same name, and no means of determining which was intended, the bequest must be held wholly void; and we do not perceive any ground of escape from such a result, where there is no ground whatever, either in the proof, or the circumstances, to incline us to believe that the testator meant one of the persons of that name more than the other. But we conjecture that such a case would never occur. 5. So, too, if the testator give an entirely indefinite amount of property, as "some of my best linen," or "a handsome gratuity to each of my executors," it has been held a void bequest. But in the former case Sir Joseph Jekyl, M. R., in the decretal order, recommended the residuary legatee, “since it was plain the testatrix intended some linen," "to give some of the best of the testatrix's linen to the legatees." But in the latter case, Sir L. Shadwell, V. C., said, "I shall not give any such recommendation," "as I do not think I am at liberty to do so," which seems very certain, unless the judge could define the amount. 6. But in later cases, under the administration of the more learned and experienced equity judges, many bequests of this general and indefinite character have been rendered sufficiently occur to us. A somewhat similar case, but one of more uncertainty, is that of Mohun v. Mohun, 1 Sw. 201, where the testator gave to all his grandchildren, "share and share alike," without saying what he gave. It is pretty obvious he must have intended all the residue of his estate, not otherwise specially disposed of, but the court resisted this interpretation upon the ground that it required an unauthorized transposition of the words, which it has been held is not admissible, except upon clear grounds. Ante, § 33. 'Swinb. on Wills, pt. vii. § viii. pl. 1, 2, 3, 4, where the circumstances which may determine the point are enumerated. Richardson v. Watson, 4 B. & Ad. 798. Peck v. Halsey, 2 P. Wms. 387. T Jubber v. Jubber, 9 Sim. 503. certain to be carried into effect, by looking carefully into the general purpose in the mind of the testator, and which he desired to accomplish by the provisions of his will. Thus, where the testator desired his executors to retain a sufficient sum of money to remunerate them for their trouble, it was referred to the Master to state the amount which would be a reasonable compensation for the service.8 And the same course has been pursued where the provision was expressed to be for the support and maintenance of a person, either in whole or in part. This is a matter easily susceptible of estimation, with reference to the circumstances and condition of the person. And even where a provision is made for the support of a widow, by means of the income of the residue of the estate, and "in case any thing should occur that her income is not sufficient, she shall be at liberty to go to the principal," the income of the residue proving insufficient, it was held, the widow could only go to the corpus of the fund to make up the deficiency, so as to produce an amount "sufficient to afford her a maintenance suitable to her station in life, and that this appeared to be about £60 a year, clear of every thing." 10 7. And a bequest for accumulation," until the interest shall Jackson v. Hamilton, 3 J. & La Touche, Irish. Eq. Temp. Sir Ed. Sugden, 702. • Broad v. Bevan, 1 Russ. 511, n.: Pride v. Fooks, 2 Beavan, 430. It was here held, that the provision for the maintenance of a daughter did not cease upon marriage until twenty-one; and a provision for trustees, expending money for the advancement of such a child, extended beyond the period of marriage and majority. See also, Kilvington v. Gray, 10 Sim. 293; Batt v. Annes, 11 L. J. Ch. 52; Thorp v. Owen, 2 Hare, 610. 10 Sir John Romilly, M. R., in Re Pedrotti's Will, 27 Beavan, 583. The counsel for the widow here claimed the whole fund, and cited Methold v. Turner, 4 De G. & Sm. 249; Rudland v. Crozier, 2 De Gex & Jones, 143; Cowman v. Harrison, 10 Hare, 234. "Oddie v. Brown, 4 De Gex & Jones, 179, before the Lord Chancellor and the Lords Justices. The counsel, in favor of maintaining the bequest, cited, upon the question of certainty, Seale v. Seale, 1 P. Wms. 290, and those op |