INACCURACIES. determine, in the case of equivocation, which of the persons or things was intended, but only in that case. 35 Sometimes the description of a person or thing given in Inaccuraa document does not apply accurately to any known person cies. or thing, though it is partially applicable to two or more persons or things. This case must be carefully distinguished from that of a patent ambiguity with which it is sometimes confounded. The rules as to, the interpretation of inaccurate descriptions are not adapted to any elementary treatise (f). tentative The process of interpretation, as thus described, is a Interpretentative process. When a document is placed in our hands, tation is a we at once obtain some information as to the time of writing process. from the character of the letters and the nature of the fabric on which it is written. But we can obtain no intrinsic evidence from the language employed till we have put some interpretation on it. In order to do so we must seek the primary meanings of the words employed in conformity with the rules above laid down, assuming, in the absence of extrinsic evidence, such circumstances and time of writing of the author as shall not be inconsistent with the intrinsic evidence already obtained. As soon as we have affixed meanings to the words, we are able to place some interpretation on the document; and, from the intrinsic evidence that we derive from its perusal, we are able to correct our opinions as to the circumstances and time of writing of the author, and are thus led to modify some of the meanings already affixed to the words; we are also led to modify them so as to endeavour to obtain a uniform and consistent sense from the whole document. If contradictions or ambiguities should now appear, we are thrown back on extrinsic evidence; but the very fact of reconciling contradictions and clearing up ambiguities may alter the intrinsic evidence and lead to some further modifications in the meanings which we affix to the words employed. (f) See Interp. ch. viii. pp. 102 et seq. Preconceived opinions It is important to remember that, if we wish to interpret a document correctly, we must dismiss any preconceived opinions as to the intentions of the author; we must be on our guard against the grave error of substituting the intentions which in our opinion the author ought to have held for those which we find expressed in the document before us. For the author may have composed the document for the very purpose of showing that he did not hold certain opinions which he was generally, to his own knowledge, considered to hold. When the document relates to a subject in which we are deeply interested, the temptation to fall into this error becomes strong; and, if it relates to a subject which is not only one in which we are deeply interested, but is one which we habitually talk about, this temptation may become irresistible. "Some ideas," it has been said, are by frequency and strength of association, so closely connected that they cannot be separated." A man who habitually expresses certain intentions in a definite form of words becomes at last unable to conceive the possibility of another man using that form to express any other intentions. 66 The student is recommended to consult Wigram on Extrinsic Evidence; and Interp. chapters i., iii., and iv. to viii. CHAPTER III. ON THE PREPARATION OF ASSURANCES. draftsman of the THE duty of the draftsman is to express the intentions Duty of of the parties clearly and concisely in technical language. to express With a view to this object he should first form a clear idea intentions of what those intentions are. It is, however, extremely parties. difficult in some cases to discover what the parties wish, owing to the instructions being imperfect, obscure, or ambiguous; moreover, they may offend against some rule of law. In all these cases the draftsman must be guided by common sense and experience. It is a convenient practice to put a note on the margin of those parts of the draft that are not strictly in accordance with the instructions, calling attention to the discrepancy. As an example: In most cases, where a lady takes the first life interest under a marriage settlement, it is intended that she should be restrained from anticipation, while in the instructions nothing may be said as to the restraint. In this case the draftsman may follow the instructions strictly, or he may (if he thinks that the words "without power of anticipation" have been omitted by error) add the restraint on anticipation; but he would be acting most improperly were he not to call attention to the fact. When the draft is finished, the instructions should be read over again, so as to ascertain that it is in accordance with them. structions When the draftsman has satisfied himself that he clearly Do the inunderstands the intentions of the parties, he should, in the offend next place, consider whether these intentions offend against against any rule of law. A testator may wish to tie up his pro- of law? perty for a period that would infringe the rules against any rule The draft should be sketched mentally. perpetuities, or he may wish to make an inalienable provision for an extravagant son, in both of which cases his intentions would be contrary to law. In cases similar to these, where the instructions cannot be carried out owing to their offending against some rule of law, it becomes a subject for consideration whether the rule of law can be avoided, and, if not, how nearly the law allows the instructions to be carried out. For instance, in the second case mentioned, the provision may be made by means of a discretionary trust, an artifice the nature of which will be explained in the chapter on marriage settlements; while in the former case it would be a question for the draftsman whether he should settle the draft, departing from the instructions so far as may be necessary to make the provisions of the instrument in accordance with law, or should send back for fresh instructions. As a general rule, it is more convenient to prepare the draft in the manner which will, in all probability, be adopted, without waiting for further instructions, for, if this meets the client's wishes, time and expense will be saved. When the draftsman has formed a clear idea as to what are the intentions of the parties, how far they are lawful, and, if unlawful, how they should be modified, he is in a position to prepare the draft. His duty now is to translate the intentions of the parties (modified, if necessary, so as not to be illegal) into technical language, arranged in the order commonly adopted for the purpose. He will facilitate his operations by sketching out the frame of his draft in his mind before he puts pen to paper. Before he does so, a perusal of precedents on similar subjects in any good collection will generally enable him to hit upon the most convenient scheme. There is another advantage in perusing printed precedents at this stage of the work, viz., that it lessens the risk of the omission of some clause which, though not mentioned in the instructions, should be inserted. For example, the instructions might be "To prepare a mortgage for £- at £ per cent. on the house, the title to which is shown in the accompanying SKELETON DRAFT. abstract." Nothing is said about covenants by the mortgagor for title, but the draftsman would, as a matter of course, insert words which imply them. draft. As soon as the general frame of the draft has been deter- Skeleton mined, the draftsman may proceed to the actual preparation of it. A very good method is to frame a skeleton draft before he begins to draw, noting at what page in the book of precedents that he uses each clause will be found. Thus, suppose the ordinary case of a conveyance by a mortgagor and mortgagee to a purchaser. (See 1 K. & E. p. 451; Stud. Prec. p. 7.) The skeleton draft might run as follows: Recitals. Parties A. 1st-B. 2nd-C. 3rd. 39 3. Principal due, interest paid; principal to be paid off Witnessing clauses. 1. In consideration of 1,000l. to B.; and of 500l. to A., paid by C. Receipt. 2. A. "as beneficial owner," and B. "as mortgagee," 3. Habendum "unto and to the use of" C. in fee simple free from the mortgage. In such a simple case as that given for an example it would hardly be necessary for any one, except a mere beginner, to prepare a skeleton draft, but the practice is often in difficult cases of use even to a person of experience. The draftsman should mark in the margin of each clause of the instructions, where they are complicated, the number of the corresponding clause of the skeleton draft, so as to guard against the accidental omission of anything intended to be provided for. It is a convenient practice in complicated cases to begin each clause on a separate sheet, to fold it up separately, and to endorse a reference to the skeleton draft. Begin each clause on a separate sheet. |