the bequest to be void, pro tanto, that is, as to so much as upon a rateable division of the entire fund would have been applied to charity; or when a residue, consisting partly of what may, and partly of what may not, be given to charity, is given, subject to the payment of debts and legacies, to charitable purposes, these charges will not be thrown exclusively upon the funds which cannot be given to charity, in order that the gift to charitable purposes may take effect out of the residue of the fund; but the debts and legacies will be paid out of the entire fund, which shall contribute rateably in proportion to their respective amounts; and the unapplied portion of the leaseholds and mortgages will go to the residuary legatee or next of kin, and the unapplied portion of the rest to the charity 2. Curtis v. Hutton, 14 Ves. Per Lord Hardwicke, Vaughan v. Ves. Farrer, sen. 189. 4 Per Bayley, J., in Doe d. Wrighte, 2 B. & Aid. 721. Per Lord Hardwicke, Willet v. Sand 12. Devise of Lands to Charity, the legal Estate void, when.] 537. -When lands are devised in trust for a charity, not only is the trust void, but the devise of the legal estate is also void 3; for, if that were not so, a party might consider himself bound in honour, though not in law, to convey the estate to the uses prohibited4; and, therefore, the heir may recover at law, "but with this distinction, that if part of the trust is good it will support the legal estate5;" and so, where the devise was to trustees, of a reversion in land, to be applied by them and their successors, and the officiating ministers for the time being of a Methodist congregation, “as they should from time to time think fit to apply the same;" this was held to be not a devise to charitable uses, and, therefore, that the trustees were entitled to recover at law, however the court of Chancery might afterwards direct the application of the trust-fund. So, where there was a general bequest of leaseholds upon condition that the legatee should assign a certain leasehold estate, part of the property, to a charitable purpose, this was considered as an absolute gift upon an illegal condition, and the con- Poor v. Miall, dition alone was held to be void7. ford, 1 Ves.sen. 187. Doe v. Cope stake, 6 East, 328. 6 Madd. 32. SECT. 15.-GENERAL PRINCIPLES OF CONSTRUCTION. 1. The Construction of a Will is the | 5. Power coupled with a Trust, 276. same at Law as in Equity, 274. 2. Necessary Implication, 275. 6. Latent Ambiguity, 276. 7. Parol Evidence to explain Ambiguity Patent admissible, when, 276. 1. The Construction of a Will is the same at Law as in Equity.]-Technical words are never necessary in a will, though, in general, the words made use of by a testator are to be interpreted according to their legal effect and operation, unless it clearly appear that he intended to use them in a different sense1. Although a particular sentence in a will, therefore, if it stood alone, might furnish a certain legal inference, still courts both of law and equity, hold that, for the purpose of collecting the intention, every part of the will must be considered 2; and when the intention is clear, the words may be enlarged, abridged, or transposed, in order to reach it3; for though a testator must not lightly be supposed to have meant more than he has expressed, and no implication must be added to that which is expressed in a will, where such implication is not necessary to render the whole consistent, still even slight circumstances may be permitted to explain obscurities 5, and will be held sufficient to qualify and restrain general words, in construing which the objects which the testator had in view, may properly afford some guidance. Where, however, the meaning of a will is plain, it is in vain to urge that such a meaning is a "strange" one7. A court of equity cannot reason from the inconvenience of the result, and be thereby induced to put a forced construction on the words used; though, in endeavouring to ascertain the doubtful meaning of a testator, the improbabilities and inconsistencies which may arise out of one construction, or be avoided by another, have been constantly attended to. Where the admission of a loose phrase would go to alter a plain and particular disposition before expressed, courts of law, as well as of equity, have held that the repugnant words may be rejected and struck out, as surplusage and merely void. While, therefore, it is clear, as a settled rule, that effect ought to be given to every word of a will, provided an effect can be given to every word not inconsistent with the general intent of the CH. III.] GENERAL PRINCIPLES OF CONSTRUCTION. whole, it is certain also, that an express disposition in an early part of a will must not receive an exposition from a subsequent passage, affording only a conjectural inference1; nor vice versâ shall the operative and effective part of a clause be controlled by ambiguous words, occurring in the introductory part of it2; neither can a subsequent clause of limitation, as to one subject of devise, be governed by words of introduction, which, though clear, are not connected with, and plainly applicable to, that particular subject 3. It is a sound general rule to give the same meaning to the same words throughout a will; nevertheless the very same words may be differently construed, and have very different operations, when applied in the same will to different descriptions of property, governed by different rules; thus, the same words which would give an estate tail in landed property, would give the absolute interest in leasehold. It is quite clear that the same phrase, in two different passages, does not necessarily mean the same thing, 2. Necessary Implication.]-In the construction of a will implication must never prevail, when such implication is not a necessary one5. Necessary inference *" must not, however, be understood to import inevitable natural necessity, but merely an implication which, upon a consideration of the whole context of the will, leaves no doubt in the mind of a judge, who has to decide the question 6. 3. Last Words in a Will prevail.]-Though it be true, as a general rule, that where the provisions of a deed or will are irreconcileable, the first words in a deed and the last words in a will shall prevail7, yet, it should seem, that, at best, the rule is but a last resource, and only to be recurred to in order to escape total inconsistency. Galland v. Swanst. 163. & Bea. 378. 9 Paul v. Comp 4. Words of Request, &c.]—Words of requests, or recommendation, or of confidence 10, are sufficient in a will to raise a trust, where the property to be given and the objects of that gift are ton, 8 Ves. 380. certain 11; but, where a mere power of disposition is given, the court of Chancery will not interfere, unless the power has been executed 12. frequent observation, for which see * The terms "necessary implication," were first used by Vaughan, C. J., in Gardner v. Sheldon, Vaugh. 262; they have been the subject of 10 Parsons v. Baker, 18 Ves. 476; Wright v. Atkyns, Coop. 115. 11 Pierson v. Garnett, 2 Bro. 145. 12 Croft v. Slee, 4 Ves. 65. Brown v. Higgs, 8 Ves. 573; Bax v. Whitbread, 16 Ves. 26. 2 Colpoys v. Colpoys, Jac. 464. Doe v. Smith, 2 Brod. & Bing. 553. 4 Penticost v. Ley, 2 Jac. & Walk. 211. 5. Power coupled with a Trust.]-Where, however, a power has been vested in the person having the whole legal interest in the subject, which the power overrides, and such power is also coupled with a trust, sufficiently expressed to make it the duty of that person to execute the purpose intended by the author of that power, should the proper party neglect that duty the court will execute it1. 6. Latent Ambiguity.]-As in the construction of a will a latent ambiguity can only be produced by parol evidence, so it may be explained by parol evidence; but where the ambiguity is patent, parol evidence cannot, in general, be received to show what was the intention. 7. Parol Evidence to explain Ambiguity Patent admissible, when.]-A patent ambiguity ought, if possible, to be removed by construction, and not by averment; but, if this be impracti cable, if the instrument furnish no materials by which the ambiguity can be cleared up, extrinsic evidence may be let in2. In these cases, the evidence is not received to produce a construction against the direct and natural meaning of the words, but to assist the court in determining what really was the meaning of ambiguous and indefinite expressions which are capable of different interpretations 3. Thus, where stock in the public funds is bequeathed by an improper designation, evidence may be let in to correct the mistake 4. In such a case, indeed, the will is plain; but, if it can be proved that the testator acted upon the idea that he had the stock he bequeathed, a latent ambiguity is raised. It is necessary to attend to this distinction,-if the testator had possessed the stock bequeathed at the time he made his will and had given it specifically, any act of his destroying that subject of bequest would prove an intention to revoke the gift5; but, if the Green, 5 Madd. mention of the particular stock be introduced only by way of denomination, not as a gift of the identical in that case, corpus, if the thing itself cannot be found, and there appears to be a mistake, as to the subject out of which it is to arise, that may be rectified by evidence. Under a bequest of stock, described as standing in the testator's name, when, in fact, it was standing in the name of trustees, the stock may pass 6; but, if a testator give a sum of stock " standing in his name," when he has neither the stock as described, nor any other stock which it can be proved that he intended to pass, though under an inaccurate description, the legacy must fail7. "Alford v. 95. 6 Hewson v. Reed, 5 Madd. 451. 7 Evans v. Tripp, 6 Madd. 91. It may happen, when parol evidence is admitted to explain a latent ambiguity, that it is insufficient for that purpose. In such a case, the legacy must of necessity fail. As if there be a gift to a person by name, but with a description superadded, which does not apply to him, but which is shewn by the evidence to be exactly applicable to some other person; in this case the devise must fail for uncertainty, unless it can be indisputably proved that the name of the party specified was inserted by mistake, instead of the name of the party answering the description1. When, indeed, a person is clearly made out by averment to be the individual meant by a mistaken devise, and there can be no Hurthwaite, 3 other to it whom may be applied, the misnamed devisee will take 2. It is quite settled, that an inaccurate description unnecessarily superadded, will not vitiate a devise to objects otherwise sufficiently and correctly designated3. 1 Thomas v. Thomas, 6 T.R. 676; Doe v. Barn. & Ald. 642. 2 River's case, 1 Atk. 410. 3 Holmes v. 381. Sitt v. Hoste, 6 Madd. 192. Though the christian name of the devisee be mistaken, parol evidence is admissible to prove that the claimant was intended by the testator 4. Even if both christian and surname be mistaken; yet if it can be ascertained by description, or otherwise, who was the person intended, the person intended will be entitled to the legacy 5. A wrong description of a legatee will not invalidate a legacy given to him by his right name6. Where a blank is left 141. for the christian name of the legatee, that may be supplied by averment7: but a surname left in blank cannot be so filled up, though an initial will let in parol evidence9, or even a nickname 10. SECT. 16.-OF EXECUTORS 1. Devastavit, 277. 2. Executor applying the Assets to his own Use, 279. 3. Extent of his Liability, 279. 4. Executor can only discharge himself * AND ADMINISTRATORS. effectually by passing his Accounts 5. Executor proving but not acting, 282. 1. Devastavit.]-An executor or administrator is liable in his own property for any abuse of his official trust, either in wasting the effects of the deceased, or in the negligent administration of *For some further remarks omitted by an accident in this place, on the office and duty of executor, see Addenda, No. 2. Beaumont v. Fell, 2 P. W. 6 Standen v. Standen, 2 Ves. jun. 589. Price v. Page, 4 Ves. 680; Colpoys v. Colpoys, 1 Jac. 464. 8 Hunt v. Hort, 3 Bro. C. C. |