particularly to the alterations, as well as purporting that the requisite ceremonies of execution and attestation (specifying them) have been observed. Independently of the risk of failure in a strict compliance with the requisites of the enactments discussed under this head, which, in point of simplicity and precision, are not more fortunate than the previous section, relative to the execution and attestation of wills generally, a testator should avoid having recourse unnecessarily to most of the operations there contemplated, as being in themselves irregular and hazardous. CHAPTER V. OF WILLS. -generally; IV. The fourth class of enactments relates to the ope- CONSTRUCTION ration of the instrument (2). 1. As to the construction How wills to be of wills generally.-Every will is to speak and take effect, construed: with reference to the real and personal estate comprised in it, as if executed immediately before the testator's decease (s. 24); and a residuary devise will include the subjectmatter of every devise failing by reason of the death of the devisee before the testator, or of such devise being contrary to law or being otherwise inoperative (s. 25). Such devises, describing the property in general terms, as, according to the old law, would include customary, copyhold, or leasehold estate, if the testator had no freehold estate answering the description, will comprise all lands of the testator to which the description extends, without regard to the tenure (s. 26). Devises and bequests, in general terms, will operate as executions of general powers over real and personal estate, provided the terms of the description would comprise them if they were the made, re-signed by the said testator, as his last will and testament, [or, the said testator acknowledged his signature to this, his last will and testament] in the presence of us, present at the same time, who, in his presence, and in the presence of each other, () As to the controlling effect CHAPTER V. -as regards devises to trus tees and execu tors; -as regards particular expressions. Comments on the fourth class (Construction of Wills). testator's own real or personal estate (s. 27). A devise of real estate will pass the whole interest disposable by the testator, whether a fee or any less interest, notwithstanding the omission of words of limitation (s. 28). 2. As to the construction of devises to trustees or executors.-The devise to a trustee or executor, of any real estate, (except a presentation to a church), will pass the whole interest disposable by the testator, unless a definite term, or an estate of freehold, be thereby expressly or impliedly given (s. 30). A devise of real estate to a trustee, without an express limitation of the estate to be taken by him, and either without any gift of the beneficial interest in the surplus rents to a person for life, or with such a gift, but the purposes of the trust extending beyond the life of the cestui que trust for life, will also pass the whole interest disposable by the testator (s. 31). 3. As to the construction of particular words.-The words "die without issue," "die without leaving issue," "have no issue," or other words importing a want or failure of issue of any person, either in his lifetime or at his death, or an indefinite failure of his issue, in any devise or bequest of real or personal estate, are not to import an indefinite failure of issue (s. 29); but this enactment is exclusive of cases where such words import, if no issue described in a preceding gift shall be born, or there shall be no issue who shall live to answer the description requisite for obtaining a vested interest under a preceding gift to such issue (ib). 1. In making the will speak and take effect, in regard to the subject-matter (not to the objects (a)) of the disposition, as if executed immediately before the testator's General rules. death, the act (unless the ambiguous words "with reference to the real and personal estate comprised in it" (a) See Garratt v. Niblock, 1 Russ. & Myl. 629. should be held to have a restrictive effect on the context, CHAPTER V. from the death; of this rule on beyond their natural import (b)), has introduced a new Wills to speak rule, as to both real and personal estate, of which, probably, all the possible consequences were not foreseen. It does not merely enlarge the scope of a general devise The operation or bequest, by bringing down the testator's volition, ex-specific devises pressed at a former period, to the latest moment of his and bequests; existence, but seems, according to the natural construction, to be capable of giving to a specific devise or bequest, an aspect very different from that which it had under the old law (c), (abstractedly from the technical doctrine which made every devise specific (d)), and to be of force in itself to convert a devise or bequest of one subject, answering the given description at one time, into a devise or bequest of another subject, more or less valuable, answering the same description at another time. Thus, for example, if I devise my farm in the parish of illustrated by A., having, at the date of the will, a small farm of fifty (b) "So, it seems, a specific legacy of any sort will not be defeated by the loss of the subject of the gift, if a similar subject is vested in the testator at his death. *** But still, as formerly, if the specific thing is gone, and there is no other which answers the description, the gift must fail. The twenty-fourth section, which bears upon these points, is particularly framed: it declares that every will shall be construed, with reference to the real and personal estates comprised in it, to speak as if it had been executed immediately before the testator's death. These words, however, cannot, it is apprehended, control the ob- (c) Ante, 346. "A will of examples. CHAPTER V. acres in the parish of A., and I afterwards sell that farm, and purchase another of a thousand acres, and die, without having either altered or re-executed my will, the larger farm will pass; though if I were to die possessed of both farms, and if this (like the bequest of “ my white horse," when I have two white horses (e)), were considered to be a case of ambiguitas latens, admitting of elucidation by extrinsic evidence (f), but the only evidence adduced were the fact of my having had the smaller farm, and not the larger farm, at the execution of my will, either the devise must be void for uncertainty, or it must speak and take effect, as if not actually executed immediately before my death; thus speaking and taking effect without an intention apparent upon the will itself. So, suppose that having, at the date of my will, two farms, one in my own and one in A.'s occupation, I devise " my farm in A.'s occupation," and that, at my death, both farms are in A.'s occupation, is the devise void for uncertainty? or, as an extrinsic fact creates the difficulty, may other extrinsic facts be used to remove it, and would evidence, respecting the state of the occupation at the making of the will, be, therefore, admissible to shew the intention ?-admissible in the case of the additional farm, but inadmissible in the case of the substitute farm? Cases testator's inten- may be put, in which an unqualified application of the tion in particu- clause would be productive of rather startling results, as where, having a white horse, worth, say, ten pounds, I bequeath "my white horse;" but I afterwards sell the white horse, and purchase a black horse, worth, say, five hundred pounds, and die, without having altered my will, possessed of the black horse and no other horse-the legatee will How this may sport with the lar cases; (e) See 1 Rop. Leg. by White, 170. (f) Wigram on Extrinsic Ev. 2nd ed. 78, 126. CHAPTER V. his words, in discriminately, to the time of his death. take the black horse (g), assuming that the will is to speak as if really made the instant before my death, and that a contrary intention is not proveable dehors. In truth, by applying the enactment in question, (unless the controlling effect of the clause" with reference to the real and personal estate comprised in it," extend far beyond that of confining the enactment to the subject, as distinguished from the object of the gift), makes the testator intend what his words, if used at a period when he did not in fact use them, would import, and gives to the language of the instrument a variable application, which the testator virtually re-adopts from time to time as his will, not only without the species of authentication-execution according to the formalities of the ninth section-so anxiously prescribed by the legislature, but without any outward sign of volition whatever. The testator is presumed to know that the legislature has endued his words with this inconstancy of purpose, and to give a mental sanction, whether he continue in fact mentally competent or not, to every change in their direction. How far the tendency of this enactment to produce wills of which the testators never dreamed may be corrected in construction, it would be idle to conjecture. It is our concern, rather to prevent the intention of testators from becoming the sport of a construction which would make every disposing clause of the will speak, in every case, with reference to the subject-matter, as if the execution of the will were really the final act of the testator, by recommending the use of such terms as cannot be misunderstood, when it is desired that a devise or bequest of a particular subject shall not apply to any other subject ;-as," my farm called Highlands, consisting of fifty acres or thereabouts, situate in the parish of Ashton, purchased by me from (g) Shep. Touch. by Prest. 433. Caution, sugrule, in regard gested by this to the penning of specific gifts. |