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PREFACE TO THE FIRST EDITION.

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The fact that the last comprehensive treatise on the Construction of Wills is now fifteen years old, might alone be a sufficient justification of a new work on the subject. Whether it is a sufficient justification of the work now offered to the profession, experience alone can show. My object has been to produce something more compendious than Jarman's classical work—the scheme of which, involving the statement of cases at length, would now be very cumbersome, in consequence of the large accumulation of cases since the last edition of his work; and on the other hand, something more detailed and elaborate than Mr. Vaughan Hawkins' useful little book. I may say at once that without Jarman's book, my own would probably never have been written. But I have throughout used his work rather as a guide than a key to the authorities. In details I have consulted Mr. Vaughan Hawkins only incidentally, though the general scheme of his book has served in the main as the model for my own.

The value of authority in questions of testamentary construction has so frequently been called in question

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of late, that it may perhaps be allowable to say a few words as to the point of view from which the present work has been written.

No two wills are alike, it is said ; it is therefore useless to cite a decision upon one will as governing the interpretation of another; one man's “nonsense affords no clue to the meaning of another man's “nonsense.'

Such expressions as these are very natural, and as a protest against hard and fast rules of construction, very valuable. The stream of English law is so continuous, and the mass of reported decisions so enormous, that very few points arise in practice upon which it is not possible to cite some more or less appropriate authority. Counsel, in their anxiety to omit nothing which may support their client's interests, overlay their argument with cases, the majority of which have no more than a superficial resemblance to the point in question. It is no wonder that judges, wearied with the citation of irrelevant cases, have sometimes gone so far as to object to the citation of cases upon the construction of wills altogether. And often the argument from authority is carried further. It is contended that there is some hard and fast rule which is to be applied regardless of the words of the will and the intention of the testator. The assumption of rules of construction in this sense is an almost unmixed evil. It tends to divorce law from common sense, and to reduce it to a set of technicalities which none but the initiated can understand. Unfortunately this point of view has not been without its influence upon English law. The

most striking instance of it is perhaps the doctrine of general and particular intention. As now interpreted in the sense that technical words must have their legal effect, this doctrine would be identical with the modern doctrine that a testator must mean what he has said, were it not for the survival of the older doctrine in the so-called rule in Shelley's case. In this application of it, the rule is not simply that technical words must have their legal effect, but that technical words must have their effect notwithstanding the strongest and clearest expression of intention on the part of the testator short of an express interpretation clause, that the words were not used technically. That a devise to a man for life with remainder to his heirs should give the ancestor the immediate fee, must always remain incomprehensible to common sense, however satisfactorily the learned may be able to trace the origin of the rule in a state of things long gone by. The rule in Shelley's case is in fact a disgrace to the rational spirit of English law, and it is to be hoped that it may soon be abolished by the Legislature, as it has long since been in America.

Another and more recent instance of an attempt to establish hard and fast rules of construction may be found in the rules laid down in Edwards v. Edwards. In all probability Lord Romilly only intended those rules to be convenient heads for arranging decided cases, and so far as they accurately extracted the ratio decidendi of those cases, they were very valuable. But, in course of time, they came to have a value independently of the cases upon which they were based,

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and there can be no doubt that the so-called fourth rule which was laid down in terms more general than decided cases justified, came to be applied to new cases ab extra without much consideration of the language of the particular testator. The consequence was the sacrifice of the wishes of the individual to the certainty of the law; and had not a decision of the House of Lords intervened to reduce the rule within its proper limits, there would have been another instance of language meaning one thing to a layman and a totally different thing to a lawyer.

So far then it may be said there are no rules of construction but only decided cases. A testator can only mean what he has said, and his meaning is to be gathered by a careful study of the language he bas used. On the other hand, admitting all this, it does not therefore follow that the construction of a will is to be left entirely to the discretion of the individual judge, unfettered by precedent or authority, though occasional dicta of judges might be cited in support of such a position.

The principles of law applicable to the construction of wills must be the same as those applicable to other matters.

Law is no more than the expression of the meaning of the acts of men in their relations with one another, when viewed by the most enlightened common sense of theday. There is no abstract law to be applied like a foot rule to facts; but law is the facts viewed in their natural bearings with reference to each other. It follows that, if the facts are the same, the same consequences ought to

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be deduced from them. The difficulty consists in discovering whether the facts are the same or not. In one sense, no doubt, the facts never are absolutely identical. There must at least be a difference of time, and this in itself, considering the continuous change in social life, is an important factor. But the question is not whether the facts are absolutely identical, but whether a fresh set of facts can be fairly distinguished from an earlier set. If not, judges have always considered themselves bound by the interpretation put upon such facts by their predecessors ; and when there have been repeated adjudications upon similar sets of facts, by a process of analysis and classification, rejecting immaterial distinctions and selecting essential points of similarity, what may be called a rule of law is established. But rules of law in this sense as distinguished from rules of policy, or from rules of law established by legislative enactment, only mean that the Courts have taken a particular view of a certain set of facts, and will do so again if similar facts arise. This process is inevitably subject to a twofold danger; a strong judge will be more likely to distinguish cases, he will look upon precedent as a guide and not as a master. A judge of a less independent spirit will dwell more upon resemblances, he will be more anxious to shelter himself under authority. The inclination of the one to adapt the law to the changing conditions of life has the accompanying disadvantage of unsettling it, while the other tends to make the law antiquated, though he leaves it certain.

No doubt in the case of wills there is this dis

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