[1900] 2 Ch. 756, at pp. 763, 764; 69 L. J. Ch. 789, at p. 792, Rigby, L. J. (cited and approved of by Lord Davey in Higgins v. Dawson, [1902] A. C. 1, at pp. 9, 10; 71 L. J. Ch. 132, at pp. 137, 138).

"The observations of very learned judges have been quoted to show that you must read all the words in every instrument with reference to the circumstances under which they are uttered or written. In one sense that is quite true. It is quite true that, where you are finding out persons or things-who are persons designated by the will, what are the things left by the will-you may find either the person or thing by proper external evidence of what is referred to."-Higgins v. Dawson, [1902] A. C. 1, at p. 5; 71 L. J. Ch. 132, at p. 135, Earl of Halsbury, L. C.

"I have often said that to treat language with that violence and to say that you have arrived at the conclusion from external circumstances that the testator would have made a different disposition from what he has done if he had had the whole subjectmatter in his mind, and therefore to construe his language differently, is not to construe or to interpret the language which the testator himself has used, but to make a will for him which you think he ought to have made if he had had the whole circumstances present to his mind."-Higgins v. Dawson, ibid. at p. 6; L. J. at p. 135, Earl of Halsbury, L. C.

"It is well settled in my opinion-I am reading from Proposition 3 in Wigram on Extrinsic Evidence (3rd ed. (1840), at p. 42; 5th ed. (1858), at p. 56)-that, 'where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted, are insensible with reference to extrinsic circumstances, a Court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circumstances, they are capable."-In re Glassington, [1906] 2 Ch. 305, at p. 313; 75 L. J. Ch. 670, at p. 674, Joyce, J.

"I think there is nothing in that case [In re Grainger, [1900] 2 Ch. 756, at p. 763; 69 L. J. Ch. 789, at p. 792] which is at variance with the proposition laid down in Wigram on Extrinsic Evidence (3rd ed. at p. 51; 4th ed. at p. 65), namely: For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be

given by his will, a Court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition [and to the circumstances of the testator, and of his family and affairs] for the purpose of enabling the Court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will."-Ibid. at p. 314; L. J. at p. 675, 676.

Spirit and Letter.

The spirit may overcome the mere letter of a will.

"In common with all men, I must acknowledge that there are many cases upon the construction of documents in which the spirit is strong enough to overcome the letter-cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages would disappoint and defeat the intention with which the instrument read as a whole persuades and convinces him that it was framed. A man so convinced is authorized and bound to construe the writing accordingly."-Key v. Key (1853), 4 D. M. & G. 73, at p. 84; 22 L. J. Ch. 641, at p. 647, Knight Bruce, L. J.

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When the main purpose and intention of the testator are ascertained to the satisfaction of the Court, if particular expressions are found in the will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified; and, on the other hand, if the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will sufficiently declared."-Towns v. Wentworth (1858), 11 Moo. P. C. 526, at p. 543, the Right Hon. T. Pemberton Leigh, delivering the judgment of the Judicial Committee. (Both the above quotations cited and acted upon by Hall, V.-C., in Sweeting v. Prideaux (1876), 2 Ch. D. 413, at pp. 415, 416; 45 L. J. Ch. 378, at p. 379, and by North, J., in

Mellor v. Daintree (1886), 33 Ch. D. 198, at p. 206; 56 L. J. Ch.

33, at p. 37.)

"Now, no doubt, the mere letter of the will, or any other instrument, is not to be adhered to if a contrary signification can be suggested by the whole context of the instrument. The spirit is

to prevail, and the letter is not to be allowed to kill. That I take to be a plain, clear canon of construction."-In re Redfern (1877), 6 Ch. D. 133, at p. 136; 47 L. J. Ch. 17, at pp. 18, 19, Bacon, V.-C. (See also ante, p. 520, "Implication.")

The words "so far as the rules of law and equity permit." "But it is to be observed that the declared intention of the testator is not to join the chattels to the real estate absolutely, but only so far as the rules of law and equity will permit; and, although these words will not correct a gift which in terms infringes the rule against perpetuity, they may be fairly referred to when the construction warranted by the words used is impugned on the score of inconsistency with the intention of the testator."Harrington v. Harrington (1868), L. R. 3 Ch. 564, at p. 574; 37 L. J. Ch. 593, at p. 597, Lord Cairns, L. C.

General and Special Intents-Cy-pres Doctrine.

In a will the general or paramount intent prevails over the special or particular intent.

By that case [Robinson v. Robinson (1757), 1 Burr. 38] this position is clearly established-That in the construction of a will we must first look to the general intent of the devisor, and give effect to that; and if there be a secondary intent which interferes with it, we are to reconcile the whole as far as we can; but at all events to give effect to the general intention. In that case the special intent was defeated."-Doe d. Bean v. Halley (1798), 8 T. R. 5, at p. 9, Lord Kenyon, C. J.

"But all this doctrine was fully considered by this Court, and afterwards in the House of Lords, in the case of Strong v. Teate (1769), 2 Burr. 912, where it was determined that the general words in a will may be restrained in cases where it appears that the devisor did not intend to use them in their general sense."— Roe d. Reade v. Reade (1799), 8 T. R. 118, at p. 122, Lord Kenyon, C. J.

"But terms so inaccurate as these must be construed not merely with regard to their ordinary meaning, but that construction must be adopted that will make the whole will consistent and capable of being executed."-Whitmore v. Trelawny (1801), 6 Ves. 130, at p. 133, Lord Eldon, L. C.

"A will cannot be construed by merely adverting to a single clause of it. Everything that bears on that part of the subject must be taken together, to discover what the testator intended.". Crone v. Odell (1811), 1 Ball & Beat. 449, at p. 466, Downes, L. C. J.

"It is a general rule of law, to be collected from a consideration of all the cases, that a particular intent expressed in a will, must give way to a general intent. It is surprising that so much pains should have been taken to establish such a rule, the effect of which is, usually, to enable the first taker to destroy both general and particular intent."-Jesson and Others v. Wright and Others (1820), 2 Bligh, 1, at p. 49, Lord Redesdale, L. C.

"It appears to be clearly established by the authorities which have been cited, that a particular intent expressed in a will must give way to a general intent."-Doe d. Bagnall v. Harvey (1825), 4 B. & C. 610, at p. 620, Abbott, C. J.

"In the first place, it is said that I am to effectuate this intention by means of the doctrine of cy-près. This doctrine, as I understand it, is nothing more than that which prevails in other cases of giving effect to the general intent, but with this difference, that it is not, as in them, carried into effect at the expense of the particular intent. In the common case there is a valid particular intent and there is a valid general intent, and the particular intent not in the view of the Court effectuating all the intentions which they presume the testator to have had, they look to his general intent, and they effect his general intent at the expense of his particular intent. In applying, however, the doctrine of cy-près, nothing is sacrificed; for example, in the case of limitations under powers, where there is a good gift of a limited estate to a person an object of the power and then a gift over to his children, who are not objects of the power, effect may be given to the whole intention by giving to the parent an estate of inheritance by means of which the estate will descend to his children. In such a case,

no doubt, the general intent is effectuated, but it is done at no expense of the particular intent, because there is no valid particular intent to which effect can be given. So in the case, more closely applying to that now before the Court, of a limitation to an unborn

son for life, with remainder to his unborn children in tail, where, as effect cannot be given to the expressed intention, because successive estates cannot be limited to an unborn person and to his issue, an estate tail is given to the party to whom the limitation was made for life; here, again, the particular intent is not sacrificed, but effect is given to it as a general intent. I apprehend the rule is this, that neither by implication, nor by the doctrine of cy-près, can an estate be carried to a class, or a portion of a class, for whom the testator never intended to provide. For persons for whom the testator did intend to provide, a different provision may indeed be made, as was done in the case of Pitt v. Jackson (1786), 2 Bro. C. C. 51."-Monypenny v. Dering (1852), 2 D. M. & G. 145, at pp. 172, 173, 174, 175; 22 L. J. Ch. 313, at p. 317, Lord St. Leonards, L. C.

"There is the doctrine usually called cy-près. It has been said that that doctrine only applies to executory trusts; but that is not So. In the first place, the doctrine is not properly called cy-près at all; it is merely a rule of construction-a rule of construction, that is, by which you sacrifice the particular intent to the general intent, or the subordinate intent to the paramount intent. When you find two intents in a will which are inconsistent with each other, and you therefore cannot carry out both, you give effect to the general or paramount intent. The rule applies just as much to direct devises as to executory trusts-where trustees are directed to convey or do some other act. That the doctrine is a rule of construction is laid down in the most express terms by Lord Romilly in Parfitt v. Hember [(1867), L. R. 4 Eq. 443, at p. 446]. . . . It may be said that that was only a dictum not necessary for the decision of the case, but I will now refer to another case which is an actual decision on the point, namely, Monypenny v. Dering [(1847), 16 M. & W. 418; 17 L. J. Ex. 81]. That was a case which was sent to a Court of law-the Court of Exchequer and therefore the judges could only treat the case as one of express and direct legal devise."-Hampton v. Holman (1877), 5 Ch. D. 183, at pp. 190, 191; 46 L. J. Ch. 248, at p. 250, Jessel, M. R. (followed in In re Rising, [1904] 1 Ch. 533; 73 L. J. Ch. 455, by Swinfen Eady, J.).

"In my view the cy-près doctrine ought not to be extended, and, that being so, I must hold that there is an intestacy. There have been so many varying expressions of opinion read to me from the judgments of various learned judges that I think I am bound to