testator, leaving children; and Lord Thurlow was strongly inclined to decide in their favor but for the case of Calthorpe v. Gough. But on a case stated for the Court of King's Bench, that court certified that the legacy lapsed, and the Lords Commissioners decided accordingly.

Again, in Williams v. Chitty (2), where the testator devised in trust for and to the use of his daughter Sarah, her heirs and assigns; but in case of her decease under twenty-one and unmarried, in trust and to the use of his daughter Elizabeth, her heirs and assigns. Sarah died in the lifetime of the testator under age, but having been married. One question was, whether, in the event which had happened, the devise over to Elizabeth was good. Her counsel considered her claim to be so obviously untenable, that he gave up the point; and Lord Loughborough seems to have entertained a similar opinion. *In the three preceding cases, it will be observed, the de- [*1648] vise or bequest which lapsed was in favor of a designated individual; but in the next case (r) we have an example of the application of the principle to a case of more doubtful complexion, the gift being in favor of a class. The devise, in substance, was to A. for life, remainder to his children in fee; and, if he should die without leaving issue, then over. A. died in the testator's lifetime, leaving a son, who also died in the testator's lifetime: and Sir C. C. Pepys, M. R., held that under these circumstances the devise over failed; observing that it was clear that, if A.'s son had survived the testator, the devise over could not have taken effect; and it was, he thought, established by authority that the situation of the parties was not altered by the fact of the prior devisee having died before the testator.

Effect where

prior gift fails by lapse.

Remark on

Tarbuck.

This is an important extension of the doctrine; for, as a devise to a fluctuating class, as children, operates in favor of such of them only as are living at the testator's decease, there might seem to be ground to contend, that, in effect, the case Tarbuck v. was one in which the failure of the gift was owing to the fact of no object having come into existence rather than to lapse. The principle of Tarbuck v. Tarbuck was, however, affirmed in Brookman v. Smith (s), where the devise was to A. for life, with remainder to the children of A. in fee, and with a gift over "in case every child born or to be born should die under twenty-one," A. had a child

(g) 3 Ves. 549, 3 R. R. 71. See also Miller v. Faure, 1 Ves. 85; Humberstone v. Stanton, 1 V. & B. 385; Williams v. Jones, 1 Russ. 517; Underwood v. Wing, 4 D. M. & G. 661, 8 HL. Ca. 183 (Wing v. Angrave); Cox v. Parker, 25 L. J. Ch. 873, the report of which 22 Beav. 169 omits the important statement that William Michael Parker attained 21; also per Wood, V.-C., Re Sanders' Trusts, L. R., 1 Eq. 681.

() Tarbuck v. Tarbuck, 4 L. J. (N. S.) Ch. 129, stated more fully, ante, p. 1301. (s) L. R., 6 Ex. 291, 7 Ex. 271. In Tarbuck v. Tarbuck, “leaving was construed literally; i. e., the failure of children was there, as well as in Brookman v. Smith, coupled in precise terms to a period having no reference to the testator's death. Such a case seems not necessarily to govern one where (as in Maitland v. Chalie, &c., ante, p. 1638) "die without leaving children means simply failure of the preceding gift. See remarks on Doe v. Duesbury, ante, pp. 1303, 1304.

living at the date of the will who attained twenty-one, but died before the testator; and it was held that the gift over failed. Some of the judges relied on the expression "born or to be born" as necessarily referring to the child then living; but Blackburn, J., doubted whether this was not giving it too much importance; and it is plain that, though there had been no such words, and whatever might have been their opinion if Tarbuck v. Tarbuck had not decided the point, the Court would have declined to overrule that case.

It is presumed, however, that, if the gift had been in terms to such children as should be living at the testator's decease, the [*1649]* result would have been different, as the failure of the devise would then clearly have been the consequence, not of lapse merely, but of the non-happening of the contingency on which the gift was made contingent, and therefore the gift over would take effect (t).

It is proper to apprise the reader, that the distinction which has been suggested as reconciling the construction adopted in the last

Remark on preceding

cases.

five cases with that which prevailed in Jones v. Westcomb and Avelyn v. Ward, was not, until Brookman v. Smith, adopted or recognized as the ground of decision in those cases. On the contrary, Lord Thurlow in Doo v. Brabant treated Calthorpe v. Gough as inconsistent with and as overruling the line of cases in question. In support of the writer's suggested distinction, however, it is to be observed that Calthorpe v. Gough and Doo v. Brabant have been since followed as well in Williams v. Chitty, already stated, as in the subsequent case of Humberstone v. Stanton (u), without any denial of the authority of Jones v. Westcomb and Avelyn v. Ward, while, on the other hand, the principle of Jones v. Westcomb, and more especially that of Avelyn v. Ward, has been fully recognized in Doe d. Wells v. Scott (x), already referred to, and other cases (y).

There is, it is submitted, a solid difference between sustaining a devise which is to take effect in the event of a person not in esse dying under a certain age, though such person never come into existence, and holding it to take effect in the event of his being born and dying above that age in the lifetime of the testator. In the former case, the contingency of no such person coming in esse may be considered as included and implied in the contingency expressed; but, in the latter, the event to which it would be applied is the exact

(t) See Shergold v. Boone, 13 Ves. 370, ante, p. 1581. (u) 1 V. & B. 385.

(x) 3 M. & Sel. 300, ante, Vol. I., p. 610.

(y) See 4 K. & J. 603, 9 H. L. Ca. 420. See also Re Tredwell, Jeffray v. Tredwell (1891), 2 Ch. 640, where however the principle was held not to apply. In that case the testator gave the income of a fund to his wife during her life or widowhood, and directed his trustees after her death to raise and pay certain legacies; it was held by the Court of Appeal that the legacies were not payable on the determination of the widow's life interest by her second marriage.

opposite or alternative of that on which the substituted gift is dependent (z). To let in the ulterior devise in such case would be to give the estate to one, in the very event in which the testator has declared that it shall go to another, whose inca- [*1650] pacity, by reason of death, to take, seems to form no solid ground for changing its object. In the event which has happened, the lapsed devise must be read as an absolute gift.

Effect upon

prior gift, of failure of ex

ecutory gift.

The same principles which determine the effect upon a posterior or executory gift of the failure of a prior gift, apply also to the converse case, namely, that of the failure of an ulterior or executory gift, and the consequence of such failure on the prior gift. According to these principles, if lands are devised to A. and his heirs, and in case he shall die without issue living at his decease, then to B. and his heirs, and B. dies in the testator's lifetime, and afterwards A. dies accordingly without issue, having survived the testator; the event having happened upon which the ulterior devise would have taken effect, and that devise having failed by lapse in the testator's lifetime, the title of the heir is let in; or (if the will be regulated by the new law) then the title of the residuary devisee, the effect being precisely the same, in the events which have happened, as if the ulterior devise had been a simple absolute devise in fee (a). On the other hand, if the devise were to A. and his heirs, and if he should die without leaving issue at his decease, then to B. for life, with remainder to his children in fee, and A., having survived the testator, dies without leaving issue, and B. also dies without having had a child (whether such event happens in the testator's lifetime or after his decease), the devise to A. becomes absolute and indefeasible, by the removal out of the way of the executory devise engrafted thereon; such devise having failed (not by lapse, as in the former case, but) by the failure of the event on which it was made dependent (b). If B. had had a child, and such child had died in the testator's lifetime, the case would, it should seem, according to the principle of the case of Tarbuck v. Tarbuck (c), have become assimilated to the case first stated.

The difference then, in short, is between a failure of the posterior gift by lapse, letting in the title of the heir or residuary devisee (as the case may be), and a failure in event, of which the prior devisee has the benefit.

(2) If the event on which the substituted gift depends actually happens in the testator's lifetime, the substituted gift takes effect, ante p. 1575. There is a dictum in Greated v. Greated, 26 Beav. 628, 629, apparently contra: sed qu. (a) See O'Mahoney v. Burdett, L. R., 7 H. L. 388, 407 (legacy). (b) Jackson v. Noble, 2 Kee. 590. As to this case see Vol. I., p. 827. (c) Ante, p. 1648.

[*1651]

* CHAPTER LI.

GENERAL RULES OF CONSTRUCTION.

THERE are certain rules of construction common to both deeds and wills; but as, in the disposition of property by deed, an adherence to General rules settled forms of expression is either rigidly exacted by of construction. the Courts, or maintained by the practice of the profession, the rules to which the construction of deeds has given rise are comparatively few and simple. But the peculiar indulgence extended to testators, who are regarded as inopes consilii, has exempted the language of wills from all technical restraint, and withdrawn them in some degree from professional influence. By throwing down these barriers, a wide field is laid open to the caprices of language; though, at certain points, we have seen, its limits are ascertained by rules sufficiently definite, and we are guided through its least beaten tracks by general principles.

It has been a subject of regret with eminent Judges (a), that wills were not subjected to the same strict rules of construction as deeds, since the relaxation of those rules introduced so much uncertainty and litigation; and was, indeed, at an early period, productive of so much embarrassment, as to draw from Lord Coke (b) the observation, that "wills, and the construction of them, do more perplex a man than any other learning; and, to make a certain construction of them, this excedit jurisprudentum artem. But," he adds, "I have learned this good rule, always to judge, in such cases, as near as may be and according to the rules of law."

This quotation will serve to introduce the observation, that though the intention of testators, when ascertained, is implicitly obeyed, however informal the language in which it may have been conveyed, yet the courts, in construing that language, resort to certain estab

lished rules, by which particular words and expressions, [*1652] standing unexplained, have obtained a definite * meaning;

which meaning, it must be confessed, does not always quadrate with their popular acceptation. This results from the intendment of law, which presumes every person to be acquainted with its rules of interpretation (e), and consequently to use expressions in their

(a) See Lord Kenyon's judgment in Denn d. Moor v. Mellor, 5 T. R. 561; Doe v. Allen, 8 id. 502. See also Wilm. 398.

(b) 2 Bulst. 130.

(c) See Doe d. Lyde v. Lyde, 1 T. R. 596; Langham v. Sanford, 2 Mer. 22. But see Lord Thurlow's judgment in Jones v. Morgan, 1 B. C. C. 221; and Lord Alvanley's observations in Seale v. Barter, 2 B. & P. 594.

legal sense, -i. e., in the sense which has been affixed by adjudication to the same expressions occurring under analogous circumstances: a presumption which, though it may sometimes have disappointed the intention of testators, is fraught with great general convenience; for, without some acknowledged standard of interpretation, it would have been impossible to rely with confidence on the operation of any will not technically expressed, until it had received a judicial interpretation. And, indeed, dispositions conceived in the most appropriate forms of expression, must have been rendered precarious by a license of construction which set up the intention, to be collected upon arbitrary notions, as paramount to the authority of cases and principles. In such a state of things the most elaborate treatise on the construction of wills, though it might, perhaps, like other curious researches, prove interesting to some inquirers into the wisdom and sagacity of our ancestors, could contribute little or nothing towards placing the law of property, as it regards testamentary dispositions, on a secure and solid foundation. It is, therefore, necessary to remind the reader, that the language of courts, when they speak of the intention as the governing principle, sometimes calling it "the law" of the instrument (d), sometimes the "pole star" (e), sometimes the "sovereign guide" (f), must always be understood with this important limitation, that here, as in other instances, the Judges submit to be bound by precedents and authorities in point; and endeavor, as we have seen, to collect the intention upon grounds of a judicial nature, as distinguished from arbitrary occasional conjecture (g).

*The result, upon the whole, has been satisfactory; for, by [*1653] the application of established rules of construction, with due attention to particular circumstances, a degree of certainty has been attained, which must have been looked for in vain, if less regard had been paid to the principles of anterior decisions. And, though the cases on the construction of wills have become, by the accumulation of more than three centuries, immensely numerous; yet when we consider the vast augmentation which, during this period, and the last century in particular, has taken place in the wealth and population of the country; the several new species of property, which the ever varying exigencies of a commercial nation have from time to time called into existence, and to which the rules of construction (d) Per Lord Hale, in King v. Melling, 1 Vent. 231.

(e) Per Wilmot, C. J., in Doe d. Long v. Laming, 2 Burr. 1112.

Per Wilmot, C. J., in Roe d. Dodson v. Grew, 2 Wils. 322 (9)"The intention must be discovered from the words of the will itself. The Court must proceed on known principles and established rules, not on loose conjectural interpretations, or by considering what a man may be imagined to do in the testator's circumstances: per Henley, L. K., 1 Ed. 43. See 1 Ves. Jr. 564; 10 H. L. Ca. 85; L. R., 6 Ch. 239; ante, Vol. I., p. 501. See also per Lord Blackburn, Rhodes v. Rhodes, L. R., 7 App. Ca. 206, and per Cotton, L. J., Re Bedson's Trusts, L. R. 28 Ch. D. 526. But as to authority in mere verbal interpretations see 6 H. L. Ca. 108; L. R., 10 Ch. 398 n.; 4 Ch. D. 68; unless the words are precisely the same, 1 H. & M. 549; and even then authority has been said not to be absolutely binding, per Jessel, M. R., L. R., 23 Ch. D. 111.