519 Rules of Construction—Introductory Remarks. now to enter upon a consideration of the general rules which it has been found necessary to introduce, for the construction of deeds and wills and other instruments in writing, in order to supply the defects of human language and capacity (a). This is a most important and extensive subject, and in some of its branches is as difficult as its importance is great, particularly as it is admitted that it is impossible altogether to reconcile all the cases (b). A deed, it will be remembered, is a writing or instrument sealed, and taking effect from the delivery (c). The office of a deed is to prove and testify the mind or agreement of the parties (d); a will *may be [*520] considered as the gift itself; from its very nature it cannot have reference to any prior gift, and it is ambulatory and revocable during life (e). In deeds, as has been partially noticed, technical rules prevail, particularly in regard to their form, and as to the words to be used for passing an estate. The law has not made it requisite to the validity of a Will that it should be couched in language technically appropriate to its testamentary character; it is sufficient that the instrument, however irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property (ƒ). A devise, as before observed, imports a consideration of itself (g). The construction of deeds and of wills conveying legal interests, as before observed, may come for decision before Courts of Equity as well as Courts of Law. The construction of those instruments in writing, which are used for the transfer of equitable interests, or to create equitable obligations, is necessarily confined to the Court of Chancery; though, as before noticed, the Court of Chancery, in order to preserve uniformity of decision on the subject, sometimes takes the advice or assistance of the Common Law Judges; so that whatever differences may have existed in former times between the rules of construction which prevailed in the Court of Chancery (h), and in the Courts of Common Law, they have (a) Lord Camden, Sugd. on Wills, 134. (b) See Lord Abinger's judgment, Doe v. Hiscocks, 5 Mees. & W. 367. (c) Touchstone, p. 56, 57 and 72. I have chiefly used Mr. Preston's edition (1820). The Roman law required that wills should be sealed by the attesting witnesses, Dig. xxviii. 1. 22, 5; Cod. iv. 21. 17; et Goth of. not. Inst. Just. ii. 10, 5. et Comment, p. 295; though no instruments, inter vivos, appear to have been sealed; Registration super seded the necessity for it. (d) Touchstone, ch. iv. p. 50. Carta non est nisi vestimentum donationis. Scrip tum est instrumentum, ad instruendum quod mens vult; Co. Litt. 36 a; Bracton, lib. ii. fol. 34. 94, 95; Fleta, iii. c. 14; vi. 28; and Plowd. 161 b, are to the same effect; et v. supra, p. 138, n. (i). In the Touchstone, c. iv. p. 51, the form of deeds is described to be "Hæc indentura testatur quod idem A. B. &c., dedit et concessit," another form is "Sciatis me dedisse," &c. A feoffment, I need hardly remark, passed nothing; it was the livery that passed the estate, ibid. p. 54; so the late Act 8 & 9 Vict. c. 106, § 3, enacts, that a feoffment shall be void at law, unless evidenced by deed. A Grant at common law has more of the character of being the actual gift, as there is no mode by which such interests as lie in grant can be passed, excepting by deed; and now, as we have seen, freehold interests in corporeal hereditaments also lie in grant, supra, p. 161-2-3. (e) This distinction between deeds and wills will be found to be of importance in regard to the equitable jurisdiction of the Court of Chancery, in reforming deeds which do not accord with the actual intentions of the parties. (f) Jarman on Wills, i. p. 11, 12. «Testamenti factio, non privati sed publici juris est," Dig. xxviii. 1. 3. "Testamentum est voluntatis nostræ justa sententia, de eo quod quis post mortem suam fieri velit,” ib. tit. i. l. i. (g) Vernon's case, 4 Rep. 4 a ; but it does not defeat a prior voluntary conveyance, Cruise, vi. p. 8. (h) Whether the court would still exercise the discretion to vary a direct disposition in long ceased to exist (a). The rules as ultimately established in the Courts of Law, are, it was said by Lord Mansfield, founded on law, reason and common sense (b); the Court of Chancery could [*521] When uses and devises of real estate became the subject of legal jurisdiction, no doubt many of the rules for their construction which had prevailed in the Court of Chancery, were imported into the common law. desire no more. It must be observed, that after the Statute of Uses an attempt was made (c) to introduce greater latitude in the construction of deeds operating under that statute than was applied to common law conveyances; but the attempt failed; and it was established, with one exception, that the same rules of construction should be applied to both (d). The Interpretation of every instrument must depend, 1st, on matter of Et fact; and 2d, on the construction of the law. Matter of fact is to be averred by the party, and triable by the jurors, or other tribunal before which the question may come; the other being matter of law, is always to be decided by the judges (e). I propose, in the first section of this Chapter, more especially to consider the general rules for the construction of deeds, wills, and written instruments, which are applied by the Judge himself; the effect which may be given to the admission of evidence of extrinsic circumstances, will be the subject of the second part of this Chapter, though it is hardly possible to avoid, to some extent, anticipating that subject in discussing the general rules. SECTION I.-General Rules of Law for the Construction and Interpretation of Deeds and Wills. Generally the Construction of Deeds and Wills governed by the same Rules-One feature of difference arises in Questions concerning Legacies-As regards the Statute of Frauds, cases of "extremity," which was formerly assumed (see Nourse v. Lord Yarmouth, Finch, 159), is at least doubtful, see Fonbl. on Equity, ii. p. 197. In the case referred to, the "extremity" of the case was, that a person who had directed his trustees to convey to his daughters, had a posthumous son born to him. (a) See 3 Bla. Comm. 382. 434; Lord Ellenborough, Iggulden v. May, 7 East, 246; Iggulden v. May, 9 Ves. 329, &c. (b) Per Lord Mansfield, Goodtitle v. Bailey, Cowp. 600; and see Hotham v. E. I. Company, Douglas, 264; and the judgment of Sir W. Grant, Gladstone v. Birley, 2 Merr. 403, 4. "Though upon the ground of mistake this Court will reform the instrument, I never understood," said Lord Eldon, "that it would therefore hold, that the instrument has a different effect from that which belongs to it at law," Underhill v. Horwood, 10 Ves. 228; and see 1 Sim. & St. 217, note. (c) See Doe v. Mussell, 3 T. R. 765, judgment of Lord Kenyon. (d) See 2 Preston on Estates, 66; judg ment of Turton, J., 1 P. W. 16; 3 T. R 765; Gilbert on Uses, by Sugden, 104; Stratton v. West, 2 Bro. 240; Alpass v. Wat kins, 8 T. R. 519 ; Touchstone, by Atherley, p. 86. The exception (according to Lord Hardwicke) is as to words of regulation or modification of the estate (as the words 66 equally to be divided" are), as distinguished from words of limitation; the former may have greater latitude in deeds taking effect under the Statute of Uses (uses being trusts at common law) than on feoffments, which are strict conveyances at common law, Rigden v. Vallier, 2 Ves. 257; 3 Atk. 734; and see Fisher v. Wigg, 1 P. W. 14, where, on the construction of a surrender, two judges against Holt, C. J., held, that "equally to be divided," &c., created a tenancy in common; which case is recog nized, 1 Wils. 341, and Cowp. 660, and by Lord Hardwicke, 3 Atk. 734; but this, I believe, is now a doubtful point. Of the effect of these, and similar words in a will, v. infra, and Jarman on Wills, ii. 162, et seq. (e) 8 Co. Rep. 155 a; Fraser's ed. 450, et v. infra, p. 527, note (a). 521 Summary of Rules of Construction. Legacies and Devises stand on the same footing-Rules of Civil Law followed in Questions as to Cumulative Legacies, &c.—Construction of Conditions the same *in Equity [*522] as at Law, but not so altogether as to what is a Performance-In carrying out Executory Limitations of Trusts, Legal Import of Words not always followed. Essentials to a Deed or Will, in order to operate as a Transfer of Property. General Rules as regards Wills-In favor of Heir and Personal Representatives-In favor of Testacy. General Rules as regards Deeds and Wills-To be construed according to the Intent-But established Rules are to be followed-Every Man's Grant to be taken against himself— Deeds-Poll and Indentures-Construction must be on the entire Instrument-And so that all the Parts may if possible agree together. A Deed which cannot take Effect according to the Letter, is, if possible, to take some Effect. Devises to be most favorably expounded to pursue the Intent-Estates, which as the result of this consideration may arise by Will, and not by Deed-Estate by Implication-Cross Remainders-Doctrine of Cy-près-Tenancy in Common. Difference between Deeds and Wills as to Future Estates. Construction of a Deed may be influenced by the Recitals-Effect of Recitals—Recital in a Will-When there is a Reason assigned for a Bequest. Operation of the Statute of Uses. Repugnant Clauses in a Deed-In a Will-Repugnant Words in the habendum of a Deed Two Inconsistent Wills. Deeds and Wills to be construed according to the Words-But too much Stress not to be laid on strict meaning of Words-Words of Condition construed as Words of LimitationConditional Limitations. Plain Mistakes will not vitiate a Gift-Falsa demonstratio non nocet-Misdescription of Deed construed more strictly than Will, as regards Words of Limitation-Different Rules as to" Vesting." Words which have obtained a Conventional meaning-" Child," &c. "Issue"-Words which have a Definite Legal Construction-Legislative Construction given to certain Words common in Wills, Stat. 1 Vict. c. 26. Absurdity, Inconvenience, and Hardship, do not operate to prevent Literal Interpretation. Where a Security may be construed to be Joint and Several—Instances in which Joint Words may be taken as Several at Law. Presumptions of Law, arising from Words, may be rebutted on plain Intention. Limits to the liberality exercised in giving Effect to Intention-Limitation cannot be supplied -No Intention can be regarded that is contrary to the Rules founded on Public PolicyIn a Deed a Fee cannot pass without the word "Heirs"—Estate Tail-Liability of Obligee not extended. Obsolete Doctrine as to what should be considered as a Lease, as distinguished from an Agreement. Construction of Surrenders. Construction of Appointments under Powers. The Doctrine of Estoppel. Generally speaking, the rules for the construction of deeds and of wills are the same. "Deeds," says one of our highest living *au[*523] thorities on this subject, "require particular words to express a given purpose (as will be noticed hereafter); but when that requisition is complied with, the rules of construction must be the same as in wills" (a); the distinctions chiefly relate to the construction of the words of gift or limitation (b). Without undertaking to point out the whole of (a) Sir James Wigram on Extrinsic Evidence, 3d ed. p. 75; and see the judgment of Lord Kenyon, Wright v. Kemp, 3 T. R. 473. (b) There are some general expressions to be found, that wills are to be expounded rather on their own particular circumstances, than by any general rules of posi. tive law. See the references in 2 Bla. Comm. 382, Sweet's ed.; and (int. al) Bayley v. Morris, 4 Ves. 788. 794. Differences in Rules as to Deeds and Wills. 523 the distinctions which exist, or to trace them in all their consequences, the most material will, I believe, be found to be noticed in the following pages. There is one feature of difference which is applicable to the jurisdiction of the Court of Chancery, which has arisen from this, that as that court had no original jurisdiction in testamentary matters, it felt itself bound to adopt, in questions of Legacy, the rules of the Ecclesiastical Courts, which were those of the civil (Roman) law (a). Before the passing of the Statute of Frauds, the Court of Chancery, following the rules of the civil law, appears to have assumed a greater latitude than was allowed by the common law, in searching for what was the testator's intention, so as to carry it into effect (b). After that statute the general rule of law and of the Court of Chancery, strengthened by the authority of the statute, as declared by Lord Hardwicke, was, that all legacies must be in writing, and written in the will (c), so as in effect to bring legacies, as regards the gift, within the rules of law applicable to gifts by way of devise, or by instruments inter vivos. There are some authorities which would lead to the supposition, that, even after this, greater latitude might be applied in expounding a gift by way of legacy (d); but it seems now to be considered, that the Statute of Frauds has put an end to the distinction originally acted upon; and legacies and devises, as regards the requisites of that statute, appear to stand on the same footing (e). *But as regards rules of construction arising upon the instrument itself, or a will and codicils compared with each other, as [*524] whether a legacy is to be considered as vested or contingent (ƒ), or whether a double legacy in the same or different instruments, is to be considered as cumulative, or as the same legacy but only repeated (g), with some others that will be occasionally adverted to,-the Court of Chancery continues to follow the rules which prevail in the Ecclesiastical Court. It is obvious that it would have been extremely inconvenient (a) Sir J. Leach, Hurst v. Beach, 5 Mad. 360; Rop. on Leg. 2, &c.; probably the same law as to legacies has continued in England from the time of Agricola to the present day. (b) See Lord Hardwicke's judgment, Milner v. Milner, 1 Ves. Sen. 107. 67. (c) Reech v. Kennegal, 1 Ves. 125; Ambl. (d) Beaumont v. Fell, 1723, 2 P.Williams, 142, 143; though this case is quoted in Tho mas v. Thomas, 6 T. R. 676; and in Hiscocks v. Hiscocks, 5 M. & W. 363, without the existence of any such distinction being adverted to. In Hurst v. Beach, 5 Mad. 360, Sir J. Leach directed, that the opinions of civilians should be taken as to the admissibility of evidence of intention and declarations of the testator, in the case before him, without reference to the rules of law; the answer of Dr. Lushington and Dr. Swabey was, that there was no rule applicable to the case put to them; and the case was decided on general principles. (e) V., int. alia, Cray v. Willis, 1729 (2 P. W. 529. 531); Scott v. Tyler; Stackpole v. Beaumont, Hiscocks v. Hiscocks, (5 Mees. & W. 363;) cited by Sir James Wigram. It is to be observed, that till the reversal of the Vice-Chancellor's decision in Miller v. Travers (8 Bingham, 244, after Sir J. Wigram's strictures had been published), the lax doctrine of the civil law as to evidence of intention, declarations, &c., appears to have been imported into the Court of Chancery in the construction of devises. See Wigram, on Ext. Ev. p. 132. 158. (f) This rule has been carried so far as to authorize the giving a different construction to the same words as applied to real and to personal estate in the same will, Forth v. Chapman, 1 P. W. 667. See Roper on Legacies, i. 478, 9; Jarman on Wills, i. 755. (g) See Williams on Executors, ii. p. 800, 1st ed.; Hooley v. Hatton, 1 Bro. 389; Rop. on Legacies, ii. p. 9; Osborne v. D. of Leeds, 5 Ves. 379; Roper, ii. p. 23. 524 Differences in Rules as to Deeds and Wills. that there should be two distinct sets of rules applicable to the same subject in two courts having concurrent jurisdiction; and if such subjects could be brought before the Courts of Law, they would, it can scarcely be doubted, adopt the same course (a). The Court of Chancery, in the construction of conditions as annexed to trust estates or interests, generally seems from the first to have followed the rules of law, but it assumed a greater latitude in its determinations as to what should be considered as a Performance (b). It has been held as regards limitations of equitable estates, that there ought to be no difference of construction in a Court of Equity from that which would be given by a Court of Law upon a corresponding legal limitation (c). So that if a person conveys or devises an estate to [*525] the use of B. upon trust for C. and the heirs of his body, the trust is construed as a legal limitation would have been, namely, as an estate tail in C., the limitation being complete and perfect in itself (d); but for this assimilation, as Lord Hardwicke observed, probably trusts would not have been endured (e). However it has long been established, that where the terms on which a trust is created are not perfect in themselves, but it is to be collected from the instrument that they were only in the nature of instructions for the forming of a perfect instrument, the Court of Chancery, which in such case has to cause the requisite instrument to be prepared under its directions, is not bound by the legal effect of the particular expressions used, but may cause the instrument to be so constructed as to effectuate what may appear to be nearest to a probable and rational purpose in the testator's mind (f), without being tied to the legal effect of any terms (a) There are many cases purporting to be decided on the principles of the civil law which would probably have been decided the same way on general principles, as Kennell v. Abbott, 4 Ves. 802; see p. 808, 809. (b) A widow had by deed of gift transferred a sum of money to one Hill, then her servant, in trust to pay 2001. apiece to her four children at 18 or marriage, provided such marriage were had with the consent of the widow and Hill. One of the daughters married one Prown with the consent of the widow but without Hill's consent, and the husband and wife filed a bill against Hill for the daughter's portion: it appearing that Hill had withheld her consent because she desired the daughter should marry her brother, or else one Wareham, a yeoman's son, contrary to the mother's liking; "And for that three gentlemen of understanding being counselors at law, who are brothers to the said Dorothy (the married daughter), and were now present at the bar, affirmed that they liked well of the match of their sister with the said Prown, and disliked the matches preferred to her by the said Hill," the portion was ordered to be paid to the husband, he having offered to secure a jointure to his wife, which he was accordingly ordered to do by entering into a recognizance, Reg. Lib. A. 1595, fo. 108. Conditions in restraint of marriage annexed to legacies were governed by the civil law (Toth. 88. 226; Williams, p. 1009), and therefore void, though the rule was afterwards relaxed, ibid. (c) Wright v. Pearson, Ambler, 362; Colson v. Colson, 2 Atk. 250, both cases of wills. (d) See Hayes' Introd. 85 to 89. "There never was any doubt but that a trust executed (i. e. a perfect trust) was in this court equivalent to an use at law," Lord Thurlow, 1 Bro. 208; Lord Redesdale, Cholmondeley v. Clinton, 4 Bli. N. S. 115; Lord Alv., M. R., Williams v. Owens, 2 Ves. J. 602; ib. Bridges v. Bridges, 3 Ves. 127. (e) Hopkins v. Hopkins, 1 Atk. 591. As has already been mentioned, here Equitas sequitur legem. (f) It will be observed that this is not acting on a different rule of construction as to the legal effect of words from what would be adopted at law, for it is assumed that the mere words are not intended to have their precise legal construction. |