express my own view, although I necessarily differ from some by agreeing with others. I agree with Sir George Jessel when he says [Hampton v. Hampton (1877), 5 Ch. D. 183, at p. 190; 42 L. J. Ch. 248, at p. 250] that, in his view, cy-près is an unfortunate phrase because the doctrine is merely a rule of construction by which you sacrifice the particular intent to the general intent. I do not think that it is an exception to the well-established principle that you first construe the will without reference to any question of perpetuities and then apply the rule, but is rather the alternative stated in Martelli v. Holloway (1872), L. R. 5 H. L. 532 [headnote] There may be a particular clause in a will which on one construction appears to offend against the law relating to perpetuities, but if it is fairly capable of another construction which avoids that objection, the latter construction will be preferred, especially if it is found to be in accordance with the general intention of the will.' Taking that view, and regarding the question as one of construction, I have only to see what is the fair construction of the words of the testator, having regard to the authorities which have gone before. I think they are all summed up by Lord St. Leonards. in Monypenny v. Dering (1852), 2 D. M. & G. 145, at p. 174; 22 L. J. Ch. 313, at p. 317; and I venture to express my respectful assent to Lord St. Leonards' view as to the general and particular intent; and this disposes of the difficulty of two conflicting intents, because you strike out the particular intent if by that you mean an intent which is contrary to the rule against perpetuities, with the result that on the true construction of the will there is no such intent; there is only the general intent, which is a perfectly lawful one, and so far as possible the Court will give effect to that. I think the rule is accurately stated in Gray on the Rule against Perpetuities, § 643, 1st ed., where he says: When land is devised to an unborn person for life, remainder to his children in tail, either successively or as tenants in common with cross-remainders, the unborn person takes an estate tail; and when land is devised to an unborn person for life, remainder to his sons in tail male, either successively or as tenants in common with cross-remainders, the unborn person takes an estate tail male. This is called the doctrine of cy-près.' In Monypenny v. Dering (1852), 2 D. M. & G. 145, at p. 174; 22 L. J. Ch. 313, at p. 317, Lord St. Leonards says: '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.'" In re Mortimer, Gray v. Gray, [1905] 2 Ch. 502, at pp. 505, 506, 507; 74 L. J. Ch. 745, Farwell, J. SECTION V. TRUE SENSE AND MEANING, HOW PAGE Testator's Meaning of the Words used to be derived from the Will itself 540 Vocabulary of Ordinary Life ... 544 Primary Meaning 545 Technical Words and Expressions 548 General and Special Words-Doctrine of Ejusdem generis, Noscitur a sociis 554 Words capable of a Two-fold Interpretation 556 556 558 560 560 564 566 567 570 570 572 575 576 577 580 580 582 582 Testator's Meaning of the Words used to be derived from the Will itself. The Court cannot go into one part of a will to determine the meaning of another part perfect in itself and without ambiguity and not militating with any other provision respecting the same subject-matter. "A judge in equity is not more at liberty to raise inferences than a Court of law. He must not say what he supposed the testator meant, but what the testator has said."—Upton v. Lord Ferrers (1801), 5 Ves. 801, at p. 805, Sir R. P. Arden, M. R. (cited by Farwell, J., in In re Willatts, Willatts v. Artley, [1905] 1 Ch. 378, at p. 385; 74 L. J. Ch. 269, at p. 272). 66 Upon the rules and principles, that I have ever thought it my duty to observe in the administration of justice, I have ever thought it imposed upon me not to make any intendment contrary to the plain and usual sense of the words used; unless from other parts of the will I could plainly see, that the testator could not have intended them to have that extensive operation the words themselves could carry."-Ex parte The Earl of Ilchester (1803), 7 Ves. 348, at p. 368, Lord Alvanley, C. J. "That the exposition of every will must be founded on the whole instrument, and be made ex antecedentibus et consequentibus is one of the most prominent canons of testamentary construction. Yet where between the parts there is no connection by grammatical construction, or by some reference express or implied, and where there is nothing in the will declarative of some common purpose, from which it may be inferred that the testator meant a similar disposition by such different parts; though he may have varied his phrase, or expressed himself imperfectly, the Court cannot go into one part of a will to determine the meaning of another perfect in itself and without ambiguity, and not militating with any other provision respecting the same subject-matter: notwithstanding that a more probable disposition for the testator to have made may be collected from such assisted construction. . . . Where the words of the two devises are different, the more natural conclusion is, that as his expressions are varied, they were altered because his intention on both cases was not the same."-Right ex dem. Compton v. Compton (1808), 9 East, 267, at pp. 272, 273, Lord Ellenborough, C. J. "It is a common rule of construction, that if the words of a gift are of themselves plain, distinct and capable of having a legal effect, effect must be given to them, notwithstanding any improbability which may arise from looking at other parts of the will; but on the other hand, if the words are ambiguous in expression or effect, they are not to be rejected for uncertainty, but you must collect, if you can, from the other parts of the will, an indication of what the testator meant by those words, which by themselves appear to be ambiguous."-Wilson v. Eden (1848), 11 Beav. 289, at p. 296; 17 L. J. Ch. 459, Lord Langdale, M. R. "I do not mean to represent myself as having any confident opinion that I can thus trace the workings of the testator's mind. Indeed, that is as I conceive scarcely within the province of a Court of justice, whose duty it is not to search for the testator's meaning, otherwise than by fairly interpreting the words he has used."-Abbott v. Middleton (1858), 7 H. L. Cas. 68, at p. 91 (cited by Lord Macnaghten in Foxwell and others v. Van Grutten (1900), 82 L. T. 272, at p. 273). "As is universally the case when one has to interpret a will, the first thing to do is to ascertain what is the meaning of the will as it stands before applying to it any settled law or any cases which apparently bear directly on the construction. One has to see what the will says." In re Pardoe, McLaughlin v. Att.-Gen., [1906] 2 Ch. 184, at p. 190; 75 L. J. Ch. 455, at p. 457, Kekewich, J. Particular meaning affixed by testator. "It may be repetition, or the mere utterance of a truism to say, as I venture nevertheless to do, that if a will, taken as a whole, shows that the testator has used in it any word in a sense and with a meaning different from the ordinary or correct interpretation of the word, and shows also what are the sense and meaning attributed to the word by the testator, it must be construed according to that sense, to that meaning."-Pride v. Fooks (1858), 3 De G. & J. 252, at p 266; 28 L. J. Ch. 81, at p. 87, Knight Bruce, L. J. "It is a canon of construction, that where a testator has affixed a particular meaning to a word in one part of his will, it shall be construed as having the same meaning in all other parts of his will, if it do not violate the sense."-Rhodes v. Rhodes (1859), 27 Beav. 413, at p. 417, Sir John Romilly, M. R. "Before we alter the meaning of words in obedience to a supposed indication of intention of the testator-before we deviate from the direct path in order to follow a light which appears to be held out by the testator-we must take care to be reasonably sure that it is a genuine light, and that we are not following the glare of a will-o'-the-wisp into a morass; and it is necessary, therefore, to consider not merely these words, but the whole of the will, and the surrounding circumstances."-In re Blower's Trusts (1871), L. R. 6 Ch. 351, at pp. 353, 354; 42 L. J. Ch. 24, at p. 25, Sir W. M. James, L. J. (cited by Swinfen Eady, J., in In re Cozens, [1903] 1 Ch. 138, at p. 142; 72 L. J. Ch. 39, at p. 41). Taking the testator's will as the dictionary. "If you find that that is the nomenclature used by the testator, taking his will as the dictionary from which you are to find the meaning of the terms he has used, that is all which the law, as I understand the cases, requires."-Hill v. Crook (1873), L. R. 6 H. L. 265, at p. 285; 42 L. J. Ch. 702, at p. 716, Lord Cairns. "Taking, as Lord Cairns puts it [in Hill v. Crook (1873), L. R. 6 H. L. 265, at p. 285; 42 L. J. Ch. 702, at p. 716], the testator's will as his dictionary, from which I am to find the meaning of the terms he has used, that is the principle on which I am to construe the will. "What I understand Lord Cairns to lay down is this, that you are to look at the will itself to ascertain the sense in which the testator used the words which you find there, and if, on applying them to the facts of the case, as known to the testator, you find that he attached to them a different meaning from that which is their proper legal sense, you are bound so to construe the will and to give effect to the will, not in its strict legal sense, but in the way in which the testator himself used the words."-In re Horner (1887), 37 Ch. D. 695, at p. 703; 57 L. J. Ch. 211, at pp. 214, 215, Stirling, J. "It is not a canon of construction, but only a concise way of putting a principle of common sense, to say that when a testator has made a dictionary for himself we must look at that to see in what sense he has used words in his will; and it would be doing less than justice to common sense to say that where a testator has qualified the meaning of a word in one part of the will it must not be assumed that in some place where he has not qualified it he did not mean to do so. That phraseology, as to a man making a dictionary for himself in his will, means what it says. If we find from a will, as we do here, that a testator has used a word ['issue'] in a particular sense, we must give it that meaning wherever it occurs in the will."-In re Birks, Kenyon v. Birks, [1900] 1 Ch. 417, at pp. 419, 420; 69 L. J. Ch. 124, at p. 125, Sir F. H. Jeune. "As I have said, the rule is to adhere to the language and meaning of the instrument, remembering throughout that in adhering to the language you must take the full instrument as written. So far as taking any particular statement or any one passage is concerned, if you can infer anything reasonable from that statement itself, then you ought to do so, and if you can you may compare that reasonable inference with what seems to be manifestly apparent in other parts of the instrument."—Law |