the use of the word said, that there the testator does not mean to pass the whole, the general effect of a codicil is, to make the will speak as of its own date."(w) And, in the same case, it was said, by Mr. Justice Bayley: "It is an established rule, that a codicil, executed to pass real estate, is prima facie a republication of the will, so as to pass after purchased lands. The rule is so, where the codicil relates to personal estate only, and therefore more especially when it relates to the passing of real estate; but, taking it as a general proposition, it may be stated primâ facie to amount to a republication of the will."(x) In the late case of Rowley v. Eyton, a person by his will directed his debts to be paid, in the words: "I order and direct that all my just debts and funeral expenses shall be in the first place paid and discharged, and with the payment thereof, I charge all my real and personal estate." The testator, after making his will, purchased several copy hold estates, which he surrendered to such uses as he should by will, or any codicil thereto, appoint;" and he subsequently made a codicil to his will, executed to pass real estates, and devised the newly purchased copyholds to his son, Thomas Eyton. On a creditor's bill filed against the son, the codicil was held to be a republication of the will, and, in consequence, the after purchased estates decreed to be subject to the devise in the will for the payment of debts.(y)

OF EXPOSITION ON INTENTION, AND THE INFLUENCE OF AUTHORITY ON CONSTRUCTION.

A GREAT proportion of the cases which have been mentioned appear fully to authorise the general position, with which the present treatise is begun that the intention of the testator is the law of devises. It cannot, however, be stated more than generally, that the construction of devises is governed by intention; the instances are numerous which prove the position not to be universally true. Frequently the object of a devise is legal, the intention is manifest, and yet the particular intention, it is considered by the courts, cannot be carried into effect. The chief impediment to the fulfilment of intention appears to be authority. A great part of the common law consists of adjudged cases, considered by the courts to be precedents, or authorities, they are bound to follow in every new case of a similar nature which comes before them. (a) Wills appear to be not more independent of authority than any other subject of litigation. There is, indeed, often an appearance of profession in the courts, to decide, in cases on wills, on the intention alone. Thus, it has been said by the Lord Keeper Northington: "Every case upon wills stands upon its own circumstances, and former determinations are only of use to find out general principles to guide the judgment of the Court

(w) 2 M. & S. 13.

(x) Ibid, 16.

(y) 2 Mer. 128.

(a) 1 Bl. C. 69. 5 T. R. 561. 8 T. R. 68. 2 Bro. C. C. 86.

`in the construction of the will before them:"(b) and by Mr. Justice Wilmot; "All cases which depend on the intention of the testator (which is the pole-star for the direction of devises) are best determined upon comparing all the parts of the devise itself, without looking into a multitude of other cases; for each stands *pretty much upon its own [ *268 ] circumstances; and one is no rule for another, or very seldom at least.:"(c) and, in a late case, by Mr. Justice Burrough: "In questions concerning the intentions of a testator, I profess to decide on the will itself, and not on cases cited."(d) It cannot, however, be doubted, that it would be a mistake to understand either of these learned judges to intend to profess, in the expressions used, to decide universally on wills independently of authority. There is reason to believe they intended to be understood simply to say, that a will is to be construed on the intention, independently of authority, unless an authority, become law, (e) compels the Court to adopt the particular construction put on a similar devise in a former will. In cases on wills, the courts first examine the words of the particular will to discover the intention; next, the legality of the intention is considered; the intention being legal, the Court then carefully deliberates on the way in which it may be best fulfilled; (f) and, lastly, it is inquired if authority, become law, forces on the Court the particular interpretation put on a similar will in a former case. It is the language of Lord Kenyon; "It is our duty in construing a will to give effect to the devisor's intention, as far as we can consistently with the rules of law; not conjecturing, but expounding his will from the words used. Where certain words have obtained a precise technical meaning, we ought not to give them a different meaning; that would be, as Lord King and other judges have said, removing land marks; but if there be no such appropriate meaning to the words used in a will, if the devisor's intention be clear, and the words used be sufficient to give effect to it, we ought to construe those words so as to give effect to the intent, and not to doubt an account of other cases which tend only to involve the question in ob[ *269 ] scurity."(g) The courts, in cases on wills, often lament the force of authorities which they have not power to resist.(h) The chief instances in which, by reason of precedents, the intention of the testator has, by universal acknowledgment, been probably frustrated, appear to be the cases of devises without words of inheritance; (i) and the numerous dependents on Robinson v. Robinson.(j)

Lord Kenyon appears to have subscribed to the opinion, that it had been wise in the law originally to have required in a will the technical language of a deed. (k)" It has frequently been lamented," observed "It his Lordship in a case before him, "that at first, after the passing of the Statute of Wills, the courts did not require the same technical expressions in a will to pass a real estate, as are necessary in the conveying of an estate by deed; for then we should not have had more cases on the construction of wills than of deeds; and it very rarely happens now that a question arises on the construction of a limitation in a deed. There are certain received words that are well known, and have from time to

(b) 1 Eden, 95.

(c) 2 Burr. 1112.

(d) 3 Brod. & Bing. 91.

(e) See 1 Bl. C. 69.

(ƒ) 7 T. R. 325. 2 Ves. 247.

(g) 6 T. R. 352.
(h) See 6 T. R. 353.
(i) See chap. xv,
(j) 1 Burr. 38.
(k) See 8 T. R.

sec. xiv. p. 176. See chap. xiii, p. 100. 67, 502.

time been used by conveyancers in drawing deeds; and these exclude all doubt as to their legal meaning: but in expounding wills a greater lati

tude of construction has been allowed.

After an anxious endeavour to discover the intention of a testator, it frequently happens that we can only conjecture what his intention was; and sometimes there is scarcely enough to form even a conjecture. Formerly, Sir John Bland made his own will; and, at the close of it, he said, that he had disposed of his estate in so clear a manner, that he thought it impossible for any lawyer to doubt about it. This will was afterwards contested, and it came before Lord Hardwicke, who said, that he was so utterly at a loss to conceive what was the real intention of the testator, that he [ *270 ] wished he could find some ground on which to form a conjecture."() It may, indeed, be true, that much less litigation would be occasioned by wills if the law had originally required technical language to be used in them; but it is evident that the desired peaceful certainty of interpretation could not have been obtained, without the sacrifice of the important liberty, which every one at present enjoys, to make his own will. And notwithstanding the lamented liberty of testamentary disposition, it is probable that, of the number of wills daily opened, the proportion is very small which comes before the courts.

It is a popular complaint, that wills are hard to be understood; that often, without legal advice, they are unintelligible, and, with it, are of doubtful construction. Wills, it is true, are sometimes void, because it is impossible to collect the meaning of them;(m) but it cannot, with reason, be said to be the fault of the law, that wills are of difficult interpretation; or, if it is, it must be considered to be the fault of the indulgence, which permits the almost endless varieties of settlement by will, nor requires technical language or form to their efficacy. If persons, in the exercise of the valuable privilege to make their own wills, fail to make themselves understood; if, which often happens, with a limited knowledge of the law, they unskilfully use technical speech, or, with technical, mix popular language; plainly the fault rests with themselves, that the meaning of the will is obscure, and the exposition of it, consequently, difficult.

(1) 8 T. R. 502.

(m) Bowman v. Milbanke, 1 Lev. 130. Doe v. Joinville, 3 East, 172. Mohun v.

Mohun, 1 Swanst. 201. Mason v. Robinson, 2 Sim. & St. 295.

*ON the admission of collateral evidence to explain intention, the subject of Chapter III., the reader is referred to the judgment of Sir Thomas Plumer, in Colpoys v. Colpoys, Jacob, 451, published since that chapter was printed.

The author has, in the chapter mentioned, proposed the distinction:if the words of a will fail to disclose an intention, collateral evidence is inadmissable to discover it; but if an intention is discovered, collateral evidence is admissible to explain it. (a) The judgment referred to of Sir Thomas Plumer is clearly an additional authority in favour of the latter position; and it is apprehended His Honour did not intend to be understood to say farther, that if the words of a will fail to disclose an intention, collateral evidence is admissible to discover it. His words are these: "I would add, that I hope it will not be supposed that I agree to the opinion, that parol evidence is never to be let in, except in cases where there is a latent ambiguity. The admission of extrinsic circumstances to govern the construction of a written instrument is, in all cases, an exception to the general rule of law, which excludes every thing dehors the instrument. It is only from necessity, and then with great jealousy and caution, that courts, either of law or equity, will suffer this rule to be departed from. It must be the case of an ambiguity, which cannot otherwise be removed, and which may by these means be clearly and satisfactorily explained. This is always permitted in [ *272 ] the case of a latent ambiguity, which not appearing on the face of the instrument, but arising entirely from extrinsic circumstances, may always be removed by a reference to extrinsic circumstances. "In the case of a patent ambiguity, that is, one appearing on the face of the instrument; as a general rule, a reference to matter dehors the instrument is forbidden. It must, if possible, be removed by construction, and not by averment. But in many cases this is impractible; where the terms used are wholly indefinite and equivocal, and carry on the face of them no certain or explicit meaning, and the instrument furnishes no materials by which the ambiguity thus arising can be removed: if, in such cases, the Court were to reject the only mode by which the meaning could be ascertained, namely, the resort to extrinsic circumstances, the instrument must become inoperative and void. As a minor evil, therefore, common sense, and the law of England (which are seldom at variance,) warrant the departure from the general rule, and call in the light of extrinsic evidence. The books are full of instances, sanctioned by the highest authorities, both in law and equity. When the person or the thing is designated, on the face of the instrument, by terms imperfect and equivocal, admitting either of no meaning at all by themselves, or of a variety of different meanings, referring tacitly or expressly for the ascertainment and completion of the meaning to extrinsic circumstances, it has never been considered an objection to the reception of the evidence of those circumstances, that the ambiguity was patent, manifested on the

(a) p. 32.

face of the instrument. When a legacy is given to a man by his surname, and the Christian name is not mentioned; is not that a patent ambiguity? Yet, it is decided that evidence is admissible. (Price v. Page, 4 Ves. 680.) So, where there is a gift of the testator's stock, that is ambiguous; it has different *meanings when used by a farmer and a merchant. So with a bequest of jewels; if by a [ *273 ] nobleman, it would pass all; but if by a jeweller, it would not pass those that he had in his shop. Thus, the same expression may vary in meaning according to the circumstances of the testator.

"To shew how mistaken the idea is, that extrinsic evidence is never to be received in cases of patent ambiguity, we may refer to a case in the House of Lords, unquestionably of that description, where the evidence was admitted. I mean the case of Doe dem. Jersey v. Smith. Mr. Justice Bayley thus states the principle on which it was introduced: The evidence here is not to produce a construction against the direct and natural meaning of the words; not to control a provision which was distinct and accurately described; but because there is an ambiguity on the face of the instrument; because an indefinite expression is used, capable of being satisfied in more ways than one; and I look to the state of the property at the time, to the estate and interest the settlor had, and the situation in which she stood with regard to the property she was settling, to see whether that estate, or interest, or situation, would assist us in judging what was her meaning by that indefinite expression.'(a)

"If it were necessary, I could refer to many other instances of resorting to extrinsic matter in cases of patent ambiguity." (Jacob, 463-465.)

The two following cases have lately been determined in the Vice Chancellor's Court, on devises to charitable uses, the subject of Chapter II., Sec. IX.

In Henchman v. the Attorney General, a person devised certain copyhold lands to W. H. in fee; on condition that he, within one month after the decease of the testator, paid to his executors 2000., [ *274 ] which he desired to be taken as part of his personal estate, and disposed of in the same manner. And, after giving certain legacies, he disposed of the residue of his personal estate, including the 2000l., in favour of charities. The testator died without any customary heir, or next of kin. Held, that the devisee took the land subject to the payment of the 20007., to which the crown, and not the lord of the manor, was entitled. (2 Sim. & St. 498.)

In The Trustees of the British Museum v. White, a person devised a freehold estate to trustees, in trust to sell it, and pay the proceeds to the Trustees of the British Museum, to be by them employed for the benefit of that Institution. The devise was held to be void under the statute of Geo. II. I consider," said the Vice Chancellor, "that every gift for a public purpose, whether local or general, is within the 9 Geo. II., although not a charitable use within the common and narrow sense of those words." (Ibid, 594.)

66

Oxenforth v. Cawkwell appears to be a farther authority for the position, stated in page 133, that if land devised is in part correctly, and in (a) 2 Brod. & B. 553.

VOL. VIII.-3 E