commonly to be found in every village a will-maker of equal courage and ability, the collector or inheritor of exploded forms and phrases. This notion proceeds upon the twofold error, that wills are expounded, not according to the rules of law, but according to the dictates of common sense-and that common sense is the same in all men. The rules of law, when applied (as applied they must be) to wills thus unadvisedly prepared, often defeat the intention, that is, the probable intention; but if those rules were discarded for a season, common sense, outraged by the conflict of opinion, making one poor word, perhaps, the sport of many contrariant decisions, would soon demand their restoration. The general impression, however, that wills are not amenable to the strict rules of legal construction extended its influence to the judicature, and induced a certain laxity of interpretation, which confirmed and encouraged the original Thus confident ignorance on the one hand, and judicial indulgence on the other, produced and re-produced blunders and obscurities of every shape and shade, which have swelled the mass of adjudication, without advancing the law as a science. But we may observe in some of the later judgments a tendency to establish a wholesome strictness of construction, to discountenance arguments

error.

drawn from vague and speculative views of the intention, and to recur to Lord Coke's "good rule, always to judge in such cases, (i. e. cases of informal wills), as near as may be, and according to the rules of law" (a). By steadily acting upon this sage advice, by shewing that the principles of interpretation applicable to deeds and wills, which (with two or three well-established exceptions), are the same in their institution, are likewise the same in their application, the Profession and the Public would soon be taught that the last important office of providing for the disposal of men's possessions, when death has precluded the possibility of explanation or correction, requires at least the same degree of information and intelligence which is confessedly necessary to the conveyance of a rood of land from a seller to a purchaser. Such an inflexible course of decision would tend to abate, even in professional men, somewhat of that confidence which now prompts them to draw wills without any previous study, relying upon intention as the law of the instrument, and the liberal rectifier of all blunders.

There cannot, indeed, be a greater mistake than that of supposing that a very small stock of legal terms, added to a very ordi

(a) 2 Bulst. 230.

nary education, suffices to accomplish the will-maker. On the contrary, a will is alone capable of exhausting the science and ingenuity of the most able conveyancer. It may embrace every allowable modification of property, every possible scheme of disposition. As it is the duty of the will-maker, (at least of the solicitor undertaking that office), not merely to draw, but to advise, he should be conversant as well with the various modes, as with the various forms of gift; prepared alike to suggest the aptest kind of destination, and to effect it by the aptest words. Even of those testators whose wills are prepared under professional advice, it may be safely affirmed, that, while the intentions of not a few are frustrated by failure in point of expression, the intentions of a far greater number are never elicited by presenting to their consideration the arrangements most suitable to their views and circumstances. In a large proportion of cases the nature, as well as the language of the disposition, is determined, not by the deliberate choice of the person who makes the gift, exercised over the various modes in which the law allows him to direct the enjoyment of his property after his decease, but by the extent of the knowledge possessed by the person who prepares the instrument, which may therefore be said to ex

hibit the mind of the framer rather than the will of the testator.

On the other hand, it must be admitted that the blame of miscarriage is not unfrequently attributable to the testator himself. Want of explicitness or candour in the communication of the actual state of his property or circumstances, or an obstinate attachment to some favourite project, may render abortive the most judicious advice. A selfish economy, too, which calculates the present fee and disregards the ravages of a posthumous Chancery suit, frequently obliges the practitioner to rely upon his own powers when he would willingly avail himself of experienced counsel.

So far as the mischief springs from the loose exposition of testamentary instruments, we have every thing to hope from greater firmness in the judicature. So far as unskilful penning is its source, we must look to the increase of knowledge and tact in the practitioner. These it is the object of the following sheets to promote, by furnishing him with some useful suggestions, and guarding him against some not infrequent errors. With respect to the testator himself, indeed, the evil has its root in human nature; yet, even here, some good may be expected to result

from setting before him a few simple and rational forms of disposition, with the consequences of indulgence in complicated schemes and capricious humours.

As an eminent conveyancer has often been heard to declare, that of all the duties which devolved upon his department of the Profession, that of drawing or settling a will is the most thankless and unprofitable, while it is well known that one half, at least, of the cases laid before counsel arise out of informal wills, the preceding remarks must stand above the suspicion of seeking to attract this responsible branch of practice to the chambers of the regular draughtsman. The authors trust, indeed, that their joint labours bear internal evidence of an anxiety to assist in delivering wills from the necessity of frequent resort to counsel or to courts, by putting plain directions into the hands of the general practitioner. They are not, however, vain enough to think that no error has been admitted into the following sheets capable of producing the evils which they deprecate.

January 7, 1835.