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by the reason assigned, (a) or by subsequent ambiguous words, (b) or by inference and argument from other parts of the will; (c) and, accordingly, such a devise is not affected by a subsequent inaccurate recital of, or reference to, its contents; (d) though recourse may be had to such reference to assist the construction, in case of ambiguity or doubt.

XIII. That the inconvenience or absurdity of a de[743] vise is no ground for varying the construction, where the terms of it are unambiguous; (e) nor is the fact, that the testator did not foresee all the consequences of his disposition, a reason for varying it; (f) but, where the intention is obscured by conflicting expressions, it is to be sought rather in a rational and consistent, than an irrational and inconsistent purpose. (g)

XIV. That the rules of construction cannot be strained to bring a devise within the rules of law; (h) but it seems that, where the will admits of two constructions, that is to be preferred which will render it valid; and therefore the Court, in one instance, adhered to the literal language of the testator, though it was highly probable that he had written a word, by mistake, for one which would have rendered the devise void. (i)

XV. That favor or disfavor to the object ought not to influence the construction. (k)

XVI. That words, in general, are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected, (7) and that other can be ascertained; and they are, in all cases, to receive a construction which will give to every expression some effect, rather than one that will render any of the expressions inoperative; (m) and of two modes of construction, that is to be preferred which will prevent a total intestacy. (n)

XVII. That, where a testator uses technical words, [744] he is presumed to employ them in their legal sense (0) unless the context clearly indicates the contrary.' (p)

(a) 16 Ves. 36.

(b) 8 Bligh, N. S. 88.

(c) 1 Ves. Jun. 268; 8 Ves. 42; Cowp. 90.

(d) Moore, 13, pl. 50; 1 And. 8; Cowp. 83.. (e) 1 Mer. 417; 2 Sim. & Stu. 295.

(f) 3 Mau. & S. 37; 1 Mer. 358.

(g) 4 Madd. 67. See, also, 3 B. C. C. 401.

(h) 1 Cox, 324; 2 Mer. 389; 1 Jac. & Walk. 31.

Kee. 756; 2 Beav. 352.

(i) 3 Burr. 1626; 3 B. P. C. (Toml. ed.) 209.
(k) See 4 Ves. 574. But see 2 Ves. & Bea. 269.

() 18 Ves. 466, [Sumner's ed. notes.]

But see 2 Russ. & M. 306; 2

(m) 3 Ves. 450; 7 Id. 455; 7 East, 272; 2 Barn. & Ald. 441. (n) Cas. Temp. Talb. 161; 3 Ves. 204; 2 Mer. 386.

(0) Doug. 340; 6 Durn. & E. 352; 4 Ves. 329; 5 Ves. 401.

(p) Doug. 341; 3 B. C. C. 68; 5 East, 51; 2 Ball. & Be. 204; 3 Dow, 71.

1 2 Williams, Ex. (2d Am. ed.) 788, 789; Ide v. Ide, 5 Mass. 500; Mowatt e. Carow, 7 Paige, 328.

XVIII. That words, occurring more than once in a will shall be presumed to be used always in the same sense, (a) unless a contrary intention appear by the context, (b) or unless the words be applied to a different subject. (c) And, on the same principle, where a testator uses an additional word or phrase, he must be presumed to have an additional meaning. (d)

XIX. That words and limitations may be transposed, (e) supplied, (f) or rejected, (g) where warranted by the immediate context, or the general scheme of the will; but not merely on a conjectural hypothesis of the testator's intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument. (h)

XX. That words which it is obvious are miswritten (as dying with issue, for dying without issue) may be corrected. (i)

XXI. That the construction is not to be varied by [745] events subsequent to the execution; (k) but the Courts,

in determining the meaning of particular expressions, will look to possible circumstances, in which they might have been called upon to affix a signification to them. ()

XXII. That several independent devises, not grammatically connected, or united by the expression of a common purpose, must be construed separately, and without relation to each other; although it may be conjectured, from similarity of relationship, or other such circumstances, that the testator had the same intention in regard to both. (m) There must be an apparent design to connect them. (n)

XXIII. That where a testator's intention cannot operate to its full extent, it shall take effect as far as possible. (0).

(a) 2 Ch. Cas. 169.

(b) Doug. 269.

(c) 1 P. W. 663; 2 Ves. Sen. 616; 5 Mau. & S. 126; 1 Ves. & Bea. 260. But see 14 Ves. 488.

(d) 4 B. C. C. 15; 13 Ves. 39; 7 Taunt. 85. The writer has heard Lord Eldon lay down the rule in these words. But see Amb. 122; 6 Ves. 300; 10 Ves. 166.; 13 East, 559; 13 Ves. 476; 19 Ves. 545; 1 Mer. 120; 3 Mer. 316-where the argument that the testator, notwithstanding some variation of expression, had the same intention in several instances, prevailed.

(e) 2 Ch. Ca. 10; Hob. 75; 2 Ves. Sen. 34; Amb. 374; 8 East, 149; 15 East, 309; 1 B. & A. 137. But see 2 Ves. Sen. 248.

(f) Cro. Car. 185; 7 Durn. & E. 437; 6 East, 486; 3 Dowl. & Ryl. 398. See also 2 Bl. 1014.

(g) 2 Ves. Sen. 276; 3 Durn. & E. 87, n.; 3 Id. 484; 4 Ves. 51; 5 Ves. 243; 6 Ves. 129; 12 East, 515; 9 Ves. 566.

(h) 18 Ves. 368; 19 Id. 652; 2 Mer. 25.

(i) 8 Mod. 59; 5 Barn. & Adolph. 621; 3 Adol. & Ellis, 340.

(k) Cases Temp. Talb. 21; 3 P. W. 259; 11 East, 558, n.; 1 Cox, 324; 1 Ves. Jun. 475.

(1) 11 Ves. 457.

(m) Cro. Car. 368; Doug. 759; 8 Durn. & E. 64; 1 N. R. 335; 9 East, 267; 11 Id. 220; 14 Ves. 304; 4 Mau. & S. 58; 1 Pri. 353; 4 Barn. & Cress. 667. See, also, Godb. 146.

(n) Leon. 57; Cas. Temp. Hardw. 143; 10 East, 503. This and the former class of cases chiefly relate to a question of frequent occurrence: whether words of limitation, preceded by several devises, relate to more than one of those devises.

(0) Finch. 139; 3 P. W. 250. See, also, 4 Ves. 325; 13 Ves. 486.

XXIV. That a testator is rather to be presumed to calculate on the dispositions in his will taking effect, than the contrary ; and, accordingly, a provision for the death of devisees will not be considered as intended to provide exclusively for lapse, if it admits of any other construction.1 (a)

(a) 2 Atk. 375; 4 Ves. 418; 4 Ves. 554; 7 Ves. 586; 1 Ves. & Bea. 422; 1 Pri. 264. See, also, 1 Swanst. 161; 2 Ves. Jun. 501; and 1 M'Cleland, 168.

1 Montgomery v. Montgomery, 2 Irish, Eq. 161.

APPENDIX.

SUGGESTIONS TO PERSONS TAKING INSTRUCTIONS FOR WILLS.

DESCRIPTION of lands, [p. 748.]

Immediate profits, [p. 748.]

Mortgaged lands, [p. 748.]]

Payment of debts, legacies, &c. [p. 748.1

Provision for wife and children, [p. 748.]

In regard to children, &c. [p. 749.]

Daughters or other females' shares, [p. 749.]

Uses to prevent dower, [p. 750.]

Survivorship, [p. 750.]

To what period referable, [p. 750.]

Suggestion as to clauses of survivorship, [p. 750.]

As to vesting, [p. 750.]

Words of recommendation, &c. [p. 751.]

Making will conditional on testator's leaving no issue, [p. 751.]

As to the persons through whom instructions are received, [p. 751.]

FEW of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills. It frequently happens, that, from a want of familiar acquaintance with the subject, or from the physical weakness induced by disease, (where the testamentary act has been, as it too often is, unwisely deferred until the event which is to call it into operation seems to be impending,) testators are incapable of giving more than a general or imperfect outline of their intention, leaving the particular provisions to the discretion of their professional adviser. Indeed, some testators sit down to this task with so few ideas upon the subject, that they require to be informed of the ordinary modes of disposition under similar circumstances of family and property, with the advantages and disadvantages of each; and their judgment, in the selection of one of these modes, is necessarily influenced by, if not wholly dependent on, professional recommendation. To a want of complete and accurate information as to the consequences of their proposed schemes, must be ascribed many of the absurd and inconvenient provisions introduced into testamentary gifts; to say nothing of the obscurities and inconsistencies which frequently throw an impenetrable cloud over the testator's real intentions. It may be useful to mention some particulars on which information should be obtained in taking instructions for a will, most of the inquiries being suggested by the various classes of cases discussed at large in this work, and being framed with a view to prevent such questions as those

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cases present. It will be obvious that the nature of the in- [748] quiries in every case must be greatly regulated by the situation

in life, and other circumstances of the testator. They may be distributed

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into those that relate-first, to the subject, and secondly, to the objects of testamentary disposition, including in the former some general points.

1. Where lands specifically devised are described by their local situation and occupancy, (though a reference to occupancy is in general better omitted, unless it forms a necessary discriminating feature in the description,) should be carefully ascertained, that the whole of the land answering to the locality, answers also to the occupancy, or, in other words, that both parts of the description are coextensive, to avoid any question as to the less comprehensive term being restricted.

2. Where there is an immediate devise to a class of persons, who may not be in existence at the death of the testator, as to the children of A, who may then have no children, it should be ascertained, what, in this event, is to become of the intermediate profits. In the absence of any provision in this nature, they will go to the residuary devisee or heir at law.

3. Where the subject of devise is a mortgaged estate, inquiry should be made, whether the devisee is to take it subject to the mortgage; and, if so, words should be used negativing his right to have it exonerated out of the assets, for which, it will be seen, the devising the property subject to the mortgage debt is not alone sufficient.

4. Another question which may be proper, under some circumstances, is, whether any specific fund, constituted of real or personal estate, is to be appropriated for payment of debts, funeral and testamentary expenses, and legacies; and it should always be stated, whether a fund so appropriated, is to exempt the general personal estate from being first applied, as is generally intended, though the intention frequently fails for want of an explicit expression of it.

II. In relation to the objects of gift.-When a testator proposes to make a disposition of his property in favor of his wife and children, (naturally the first objects of his regard,) several modes of disposition present themselves. One is, to give the income to the wife for life, clothed or not with

a trust for the maintenance of the children, and to give the in[749] heritance or capital to their children, equally, subject or not to a power in the wife of fixing their shares, or limiting the property to some in exclusion of others, as she may think proper. Another mode is, to give the wife and children immediate absolute interests in the property in certain proportions, according to the nature of the distribution of personal property under the statute in case of intestacy; but this mode of disposition is less frequently adopted than the former. To empower the widow to regulate the shares, is often found convenient, not only as it preserves her influence over her children, but because it enables her to adapt the disposition of the property to their various exigencies at the period of her death, and it has, moreover, a salutary effect in restraining the children from disposing of their reversionary interests. Where the children do not take absolutely vested interests until their majority or marriage, it is useful to confer a power on the trustees, with the consent of the widow, or other person taking the prior life interest, to advance some proportion (the maximum of which is usually fixed at a half or one third) of their presumptive shares, in order to place out the sons as apprentices, etc., or for other such purposes. Even where the children take vested, (i. e. absolutely vested) interests at their birth, a power of ad

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