By statute 3 & 4 W. & M. c. 14, Another inconvenience was found to attend this new creditors by bond method of conveyance by devise; in that creditors by bond or other special against the derisee, as well as the heir, of simple. ties, may recover and other specialties, which affected the heir, provided he had assets by descent, were now defrauded of their securitenants in fee- ties, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M. c. 14, hath provided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple, or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void (16): and that such creditors may maintain their actions jointly against both the heir and the devisee (17). testimony will be far indeed from conclusive, (Hudson's case, Skin. 70; Digg's case, cited ibid.,) and Lord Mansfield held, that a witness impeaching his own act, instead of finding credit, deserved the pillory; (Walton v. Shelley, 1 T. R. 300; Lowe v. Jolliffe, 1 W. Bla. 366; S. C. 1 Dick. 389; Goodtitle v. Clayton, 4 Burr. 2225;) yet Lord Eldon held that the evidence of such parties was not to be entirely excluded; admitting, however, that it is to be received with the most scrupulous jealousy. (Bootle v. Blundell, 19 Ves. 504; Howard v. Braithwaite, 1 Ves. & Bea. 208.) And Sir John Nicholl has laid it down as a distinct rule, that no fact stated by any witness open to such just suspicion can be relied on, where he is not corroborated by other evidence. (Kinleside v. Harrison, 2 Phillim. 499; and see Burrowes v. Lock, 10 Ves. 474, with the additions to Mr. Christian's note to the next paragraph.) (16) See the statutes cited ante, in pp. 260 & 340, which provide more effectually for the payment of just debts. (17) Mr. Christian observes, that "a devise to raise a portion for younger children according to an agreement before marriage, and a devise for the payment of debts, are ex ceptions in the statutes." [And they still continue so, under the recent enactments, it is not necessary, therefore, that the descent of the estate should be broken. It is enough if it appear, upon the face of the will, that the testator intended to break it. A mere charge is not indeed a legal interest, in such case; it is not a devise to any one: but it is a declaration of intention, upon which a court of equity will fasten; and whether the descent be broken or not, the charge will constitute equitable assets. (Shiphard v. Lutwidge, 8 Ves. 30; Kidney v. Coussmaker, 12 Ves. 154; Foley's case, 2 Freem. 49; Hungerford v. Earl, Ibid. p. 121; Hickson v. Witham, Ibid. case 12 in Append. to 2nd edit.) And where the testator has directed payment of his debts to be paid out of the "rents and profits" (if no words limiting the devise, expressly or by implication, to annual profits be used, (Ivy v. Gilbert, 2 P. Wms. 19; Mills v. Banks, 3 P. Wms. 7,) the estate may be sold. (Lingard v. Earl of Derby, 1 Br. 311; Ridout v. Earl of Plymouth, 2 Atk. 105; Bootle v. Blundell, 19 Ves. 528; S. C. 1 Meriv. 233; Anonym. 1 Vern. 104; Allan v. Backhouse, 1 Ves. & Bea. 75.) It has also been declared that, devisees in trust for payment of debts need not wait for a decree of a court of equity operation of a A will of lands, made by the permission and under the The nature and control of these statutes, is considered by the courts of law devise of lands. not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject; with this difference, that in other conveyances the actual subscription of the witnesses is not required by law (w), though it is prudent for them so to do, in order to assist their me(w) See pag. 307, 308. for raising the money; but, without that, may fairly raise it by sale or mortgage (unless where it is directed to be raised by a perception of rents and profits); and the court of Chancery, if the matter be afterwards brought before it, will support the transaction. (Earl of Bath v. Earl of Bradford, 2 Ves. sen. 590.)-ED.] "The execution of a will in a court of law is proved by calling one of the subscribing witnesses, who proves that the testator executed his will by signing and sealing in his presence, and in the presence of the other two subscribing witnesses. But if a bill is filed to establish a will, all the subscribing witnesses living must be examined, unless they are abroad, then their handwriting must be proved, as if they were dead. 5 Ves. jun. 411." [See the note to Lord Carrington v. Payne, in 1 Hovenden's Suppl. to Ves. jun. Rep. p. 517, where this subject is discussed more at length, and the leading authorities collected. It is there observed, that the court of Chancery deems an heir entitled to evidence of his ancestor's sanity at the time of the execution of his will, (see note 15 to this page,) from every one of those whom the statute has placed round a testator at such a time as guards against fraud. (Harris v. Ingledew, 3 P. Wms. 93; Wallis v. Hodgson, 2 Atk. 56; Abrams v. Winshup, 1 Russ. 527.) This is not a mere technical rule. The design of this provision of the statute was to prevent wills from being set up which ought not; and it often operates si lently, but forcibly, by intestacy: (Hindson v. Kersey, 4 Burn's Eccl. L. 91; Bootle v. Blundell, 19 Ves. 500; S. C. Coop. 138:) but when the best endeavours have been used to discover, and bring forward an attesting witness; if those endeavours are fruitless, the witness must be considered as dead. (Anonym. Godbolt, 326; M'Kenire v. Fraser, 9 Ves. 6; James v. Parnell, 1 Turn. & Russ. 417.) And it is not only when a witness is abroad, (Wood v. Stane, 8 Pr. 615,) that an exception to the general rule of complete examination is reasonable that rule will, in like manner, be relaxed, if, owing to any other cause, one of the witnesses cannot be made amenable to the jurisdiction of the court: (Fry v. Wood, 1 Atk. 445:) this last circumstance, indeed, seems to afford the most substantial reason for a departure from the general rule; since, notwithstanding a witness may be abroad, a commission may, if necessary, (though the proceeding is inconvenient,) be sent out to examine him; and an account may be decreed in the mean time, before the return of the commission, although there may not be proper evidence upon which the will can be declared formally and finally proved. (Fitzherbert v. Fitzherbert, 4 Br. 430; Grayson v. Atkinson, 2 Ves. sen. 460; Wood v. Stane, 8 Pr. 615; Binfield v. v. Lambert, 1 Dick. 337.) [Of course, if one of the witnesses become insane, he must be considered as if he were dead. (Bernett v. Taylor, 2 Ves. 382.)-ED.] mory when living, and to supply their evidence when dead : but in devises of lands such subscription is now absolutely necessary, by statute, in order to identify a conveyance which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will (x) (18). Wherefore no after-purchased [379] *lands will pass under such devise (y), unless, subsequent to the purchase or contract (z), the devisor republishes his will (a) (19) (20). (x) 1 P. Wms. 575; 11 Mod. 148. (18) Every devise of real estate is deemed specific; (Hill v. Cock, 1 Ves. & Bea. 175; Milnes v. Slater, 8 Ves. 305;) and being considered in the nature of an appointment of particular lands to the devisee, it has been held a necessary consequence of this principle, (whether the principle itself be wise or not a question which, whilst this note is going through the press, is under the consideration of parliament,) that no man can legally devise lands to which he has not a legal title at the date of the appointment and of his death; nor can such a devise be held good in equity, where the equitable title at least was not in the devisor at the first of those periods, and the same estate, whether clothed or not with the legal title, continued in him up to his death: (Harwood v. Goodright, Cowp. 90; Howev. Earl Dartmouth, 7 Ves. 147; Rose v. Conynghame, 11 Ves. 554; Brudenell v. Boughton, 2 Atk. 272) with this qualification, however:-it is possible for the estate to have been devested by disseisin, in the time intervening between the date of the will and the testator's death, and yet, (the disseisin being purged by re-entry,) (z) 1 Ch. Cas. 39; 2 Ch. Cas. 144. (a) Salk. 238. the will may stand good, without republication. (Goodtitle v. Otway, 1 Bos. & Pull. 603, citing the leading case of Brunker v. Cook, 11 Mod. 128.) And even though a testator was disseised, at the time of making his will, of lands thereby devised, still, if he be remitted before his death, it should seem that the devise would be good; for, if re-entry, according to the language of all the cases and text books, has relation to all intents and purposes to the time of the disseisin, and the disseisee when remitted, is held to have had possession ab initio, (Monkton v. Pashley, 2 Lord Raym. 977,) then, a will of lands, notwithstanding it was executed when the devisor had only jus ad rem, not in re, may operate as a good devise. (Attorney General v. Vigor, 8 Ves. 282.) That, as a general rule, subject to some qualifications there stated, a devise becomes inoperative if the testator conveys the devised lands away after he has made his will, notwithstanding he may take back the very same estate in those lands, see ante, p. 376, note. (19) A codicil duly executed, and attested by three witnesses, if such rules for the We have now considered the several species of common The general assurances, whereby a title to lands and tenements may be construction of : codicil clearly refer to, and adopt, a previous unattested will, amounts to a re-execution and re-publication of that will and a devise of land by the unattested will, which, if it stood alone, would be inoperative as to real estate, will be made good by the codicil. (De Bathe v. Lord Fingal, 16 Ves. 168.) Whatever objections this doctrine of constructive re-publication may be open to, it is a point now clearly established, that, as a general rule, a codicil duly attested does amount to such re-publication. (Hulme v. Heygate, 1 Meriv. 294.) It is equally clear, that a re-publication of a will makes the will speak as of the time of such re-publication; (Long v. Aldred, 3 Addams, 51;) and, consequently, that lands purchased in the interval between the first making of the will and its republication, may pass under a general devise contained in the will: but, where the will contains a particular description of the lands thereby devised, no subsequent will can apply to lands purchased after the making of the will; for, the particular description given in the will must defeat any more extended effect of the re-publication. (Heylin v. Heylin, Cowp. 132.) Other circumstances besides those of locality, in the description of the lands devised, are sufficient to control the effect and operation of a codicil: thus, for instance, a codicil confirming the beneficial interests given in the testator's lands by his will, but appointing new trustees to whom he devises the legal estate in his "said" lands, may exclude the ordinary operation of a republication, and prevent lands purchased after the date of the will from passing by such devise. (Bowes v. Bowes, as determined on appeal in Dom. Proc. 2 Bos. & Pull. 506.) But, where no special intention to the contrary ap pears, the effect of a codicil per se, and independently of any intention, is, to bring down the will to the date of the codicil, making the will speak as of that date. (Goodtitle v. Meredith, 2 Mau. & Sel. 14; Pigott v. Waller, 7 Ves. 123.) And though the codicil relate (as it did in the case of Pigott v. Waller, just cited) only to personalty; yet, if it be executed by three witnesses, it republishes a previous devise of land. (Rogers v. Browning & Pittis, 1 Addams, 37.) It should be observed, that a re-publication in general terms, whereby a man ratifies and confirms his will, ratifies and confirms it with every codicil which has been added to it; and when by any codicil the will has been in part revoked, the mere re-publication of the will does not set up again any gift which has been so revoked. (Crosbie v. M'Doual, 4 Ves. 616; Monck v. Lord Monck, 1 Ball & Beat. 306; Izard v. Hurst, 2 Freem. 224; Drinkwater v. Falconer, 2 Ves. sen. 626.) As lands which, at the time, have been contracted for by, but not actually conveyed to, a testator, will pass under a general devise of his estates; (Capel v. Girdler, 9 Ves. 500; Broome v. Monck, 10 Ves. 605;) it follows, from the principles already stated, that any lands for which the testator has entered into a valid contract before he re-publishes his will, must, unless a special intent to the contrary appear, pass under his said will. (Gibson v. Lord Montfort, 1 Ves. sen. 494.) (20) Mr. Christian observes, that "if an estate is given to A. and his heirs, or to A. and the heirs of his body, or any interest whatever to A., and A. dies before the testator, the devise is lapsed and void, and the heirs of A. can claim no benefit from the devise. (White v. White, 6 T. R. 518; 1 Bro. 219; Doug. 330.)" deeds and wills. vourable and according to But transferred and conveyed from one man to another. 1. It must be fa- 1. That the construction be favourable, and as near the reasonable, and minds and apparent intents of the parties, as the rules of common under- law will admit (b). For the maxims of law are, that “verba the intent of the "intentioni debent inservire ;" and "benigne interpretamur "chartas propter simplicitatem laicorum." standing, and parties. 2. Where there is no ambiguity no intendment trary thereto; but, where the And therefore the construction must also be reasonable, and agreeable to common understanding (c). 2. That quoties in verbis nulla est ambiguitas, ibi nulla in the language, expositio contra verba fienda est (d): but that where the can be made con- intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui hæret in litera, hæret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso (e). And another maxim of law is, that "mala grammatica non vitiat chartam ;" neither false English nor bad Latin will destroy a deed (f). Which, perhaps, a classical critic may think to be no unnecessary caution. intention is clear, the strict sense of the words used need not be considered. Bad grammar or false Latin will not vitiate a deed. 3. The construction must be deed, and not upon disjointed parts of it. 3. That the construction be made upon the entire deed, upon the entire and not merely upon disjointed parts of it. "Nam ex an"tecedentibus et consequentibus fit optima interpretatio" (g). And therefore that every part of it be (if possible) made to [ *380 ] take effect: and no word but what may operate in some shape or other (h). "Nam verba debent intelligi cum effectu, ut res magis valeat quam pereat” (i). 4. The deed must be taken most strongly against the maker, and in favour of the other party. 4. That the deed be taken most strongly against him that is the agent or contractor, and in favour of the other party. "Verba fortius accipiuntur contra proferentem." As, if tenant in fee-simple grants to any one an estate for life, generally, it shall be construed an estate for the life of the grantee (j). For the principle of self-preservation will make men sufficiently careful not to prejudice their own |