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Ante, 24.

Ante, § 28.

Doe. v. Kett,

nefit of a person in remainder, from the circumstance of the first devisee dying in the testator's lifetime; where it appeared that the heir of the body of the first devisee was likewise heir at law of the testator.

On the other side it was contended, that by the established rules of law, the devise to Simon became void, by his death in the lifetime of the testator; and the remainder to Hamilton the second son, took effect immediately on his father's death. That this doctrine had been adopted in early times, and had continued down to the present. It was established in the early part of the reign of Queen Elizabeth, and was recognized in a variety of cases down to the year 1780, nor was it ever judicially contradicted or impeached. But there appeared at the end of the report of Fuller v. Fuller, Cro. Eliz. 422., a dictum of Lord Ch. J. Popham, that where a devise was to a son in tail, his issue, in case of his death in the lifetime of his father, should take before the remainder-man. But this at most was an extrajudicial opinion; and was not admitted in the case of Hodgson v. Ambrose.

The following question was put to the Judges "Whether, in the event that had happened, the defendant Hamilton White took any and what estate in the lands of B. under the devise to him, for default of issue of Simon White?"

The Lord Ch. B. delivered the unanimous opinion of the Judges present, that Hamilton White took an estate tail; and the judgment of the Court of King's Bench in England was affirmed.

30. A republication of a will, after the death of a devisee in tail, will not give any estate to the issue of the devisee.

31. N. G. devised lands to her god-daughter and the + Term R. 601. heirs of her body, who died in the lifetime of the tes

tatrix, leaving a son. The devisor knew of the death

of the devisee, and of the birth of her son; after which she made a codicil that operated as a republication of

her will. It was determined that the devise having become void by the death of the devisee, did not operate by its republication, so as to give any estate to the son of the devisee.

32. It has been stated that where a trust is sufficiently created, it will fasten itself upon the land, and will not become void by the incapacity or death of the trustce.

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Downing,

Amb. 571.

33. In consequence of this principle, it was deter- Att. Gen. v. mined by Lord Camden, that where an estate was devised to trustees, upon trust for a charity, the death of the trustees in the lifetime of the testator did not make the devise void.

Williams v.
Coade, 10 Ves.

34. Lord Hardwicke has observed, that in the case 2 Ves. 77. of copyholds, though the land passes by the surrender, and the will is only directory of the uses; yet, if the devisce dies in the lifetime of the devisor, the devise is 503. void. 35. Where a devise of lands in fee simple becomes The estate delapsed, by the death of the devisee, in the lifetime of heir. the testator, the estate devised will not go to the residuary devisee of the real estate, but will descend to the heir at law of the testator.

36. A person devised his messuage in E. to F. C. and his heirs, and all the rest and residue of his messuages, lands, and hereditaments, to I. L. his heirs and assigns for ever. F. C. died in the lifetime of the testator, by which the devise to him lapsed. And the question was, whether the latter clause in the will would carry over the lapsed devise to the residuary devisee, or it should descend to the heir at law of the testator.

The Court held that the devise of all the rest and residue did not convey what was devised before; for wills must be construed from the intent of the testator at the time of making them, which appeared to be to give his whole estate to F. C. and his heirs in the messuage of E.; and at the time when the will was made

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scends to the

Wright v. Hall,

Fortesc. 182.

Roe v. Fludd,

Id. 184. S. P.

Doe v. Underdown, Willes Rep. 293.

Where the devise is uncer

tain.

5 Rep. 68 b.
Doe v.
Joinville,
3 East, 172.

Mohun v.
Mohun,

1 Swanst. 201.

Or the devisee disagrees.

Ante, c. 1. § 18.
Townson v.

Tickell,

he had no residue left in that messuage; and the devise to F. C. being void, the messuage would descend to the heir.

37. In a subsequent case of the same kind, reported by Lord Ch. J. Willes, the following propositions were laid down:-1. That the intent of the testator ought always to take place, when it is not contrary to the rules of law. II. That the intent of the testator ought always to be taken as things stood at the time of making his will; and was not to be collected from subsequent accidents, which the testator could not then foresee. III. That when a testator in his will had given away all his estate and interest in certain lands, so that if he were to die immediately, nothing remained undisposed of, he could not intend to give any thing in those lands to his residuary devisee. And judgment was given accordingly.

38. Where it is impossible to discover, from the words of a will, what was meant to be given, or to whom, the will is void for uncertainty.

39. Thus it is laid down in 33 & 34 Eliz. by Wray and Anderson, Ch. Justices, that if a man has two sons of the name of John, and devises his lands to his son John, if no direct proof can be made of his intent, as to which of his sons he meant, the devise is void for the uncertainty.

40. Testator left and bequeathed to all his grandchildren and share and share alike. It was held, by Sir Thos. Plumer, M. R. that the devise was void, there being uncertainty both in the subject and in the objects of the bequest.

41. It has been stated in a former chapter that a devisee may disagree to and disclaim a devise by deed, in which case nothing will vest in him; consequently

Tit. 32. c. 26. the devise becomes void, and the lands descend to the

heir at law.

CHAP. IX.

Construction of Devises.-General Rules.

1. The Intention must be effec- | 28. A Perpetuity

tuated.

15. Words rejected or supplied. 18. The Word or construed and. 25. Particular Estates sometimes transposed.

27. Contradictory Devises.

created.

cannot be

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SECTION 1.

must be ef

A WILL being considered as an instrument made at a The intention time when the testator cannot have the assistance of fectuated. persons skilled in the law; or as it is usually expressed, when he is inops consilii, the judges have at all times held that it shall not be construed strictly, like a deed, but that the intention of the testator, though not expressed in the proper legal and formal words, shall, notwithstanding, be carried into effect; it being a maxim of the English law,-Quod ultima voluntas testatoris perimplenda est, secundum veram intentionem.

2. It follows that no technical words are necessary to convey a testator's meaning; and whenever that is doubtful, it must be collected from the scope of the whole will, compared with its several parts; for courts of justice cannot make a will for the party, nor inter- 2 Burr. R. 770. pret it by any arbitrary rule, but that mode of construction is to be preferred which gives effect to every

part of the instrument, so that each word may have its 2P. Wms. 282. particular operation, and not be rejected, if any construction can possibly be put upon it.

1541.

3. The intention of the testator must be collected 3 Burr. R. from the whole will, ex visceribus testamenti, so as to leave the mind quite satisfied about what the testator meant. And as a will of lands must be in writing,

such collection of the testator's intention must be derived from the will itself; for no averment founded on parol evidence can be admitted to explain any thing dubious in the will, except in a few instances, which shall be mentioned hereafter.

4. General words in one part of a will may be restrained by subsequent ones, and shall be construed so as not to defeat the intention of the testator, where it can be collected from any other part of the will. But where there is a manifest general intent, the construcInfra, c. 12. & tion should be such as to effectuate it, though by that construction some particular intent may be defeated.

14.

2 Burr. R. 1108.

Doug. R. 341.

2 P. Wms. 741. Doug. R. 341.

Cowp. R. 306.

637.

1 P. Wms. 286.

5. The construction must be such that the intent of the testator may be rendered consistent with the rules of law, for otherwise every testator would make a new law for himself; the metes and bounds of property would be vague and indeterminate, which would end in its total insecurity.

6. Technical words are presumed to be used in the sense which the law has appropriated to them, unless the contrary appears. But where the intention of the testator is plain, it will be allowed to control the legal operation of the words, however technical.

7. Introductory words often assist in showing the intention of a testator; and the courts have laid hold of them, as they do of every other circumstance in a will, that may help to guide their judgment to its right and true construction.

8. The particular situation of a testator, the number 4 Bro. R. 441. of his children, the different kinds of property whereof he was possessed at the time of making his will, are circumstances from which arguments may be drawn respecting his intention. And it has been determined, in several cases, that the same words may have a different construction, when applied to different kinds of property.

2 Ves. 616. Cowp. R. 833.

Prec. in Cha.

9. An heir at law shall not be disinherited by a will, 473. Cowp. 99. unless there are express words, or a necessary implica

6 Dow. 22.

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