CHAP. LI.

Probability of strict construc

being adhered

to.

Chancellor of Ireland, thrown into the opposite scale, may cause it again to oscillate, remains to be seen. The state of the authorities seems hardly to justify the hope that litigation has reached its limit on this often-occurring point. Without adverting to the contrariant opinions of deceased judges, we have now Lord Lyndhurst (1), Lord Brougham (m), and Sir James Wigram (n) in favour of the strict, and Sir Lancelot Shadwell (o) and Sir Edward Sugden in favour of the less definite, construction; though it is to be remembered that the Vice-Chancellor of England rested his decision upon a special ground, which, however, it has been shewn, does, in point of fact, apply to many cases in which the contrary interpretation has prevailed. It is, perhaps, to be regretted that the liberal construction (which formerly obtained, and, no doubt, generally accords with the actual intention) was not adhered to; but there seems much difficulty in retracing the steps which have since been taken, and sound principles of construction seem somewhat violated in allowing the diversion of a word from its strict and more appropriate signification, without the aid of an explanatory context. At all events the course of

tion of survivor the recent decisions in the English Courts of Equity renders it highly probable that the strict construction of the word "survivor" will eventually be adopted, though with a readiness to yield to the slightest indication in the context, of an intention to use the word in the sense of other (p).

(1) Ante, p. 612.
(m) Ibid.

(n) Ante, p. 618.

(0) Ante, p. 617.

(p) In the recent case of Slade v. Parr, 7 Jurist, 102, the strict interpretation of the word "survi

vor" was contended for, although it was coupled with other; but this construction (which militated against the express terms of the will), was not adopted or countenanced by the Court.

737

CHAPTER LII.

GENERAL RULES OF CONSTRUCTION.

of construction.

THERE are certain rules of construction common to General rules both deeds and wills; but as, in the disposition of property by deed, an adherence to settled forms of expression is either rigidly exacted by 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

(a) See Lord Kenyon's judgment in Denn d. Moor v. Mellor, 5 Durn. & E. 561; Doe v. Allen, 8 Durn.

& E. 502. See, also, Wilm. 398.
(b) 2 Bulst. 130.

CHAP. LII.

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 established rules, by which particular words and expressions, 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 (c), and consequently to use expressions in their 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

(c) See Doe d. Lyde v. Lyde, 1 D. & E. 596; Langham v. Sanford, 2 Mer. 22. But see Lord Thurlow's judgment in Jones v. Morgan, 1 B.

C. C. 221; and Lord Altanley's observations in Seale v. Barter, 2 Bos. & Pull. 594.

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 the 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" (ƒ), 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 endeavour, as we have seen, to collect the intention upon grounds of a judicial nature, as distinguished from arbitrary occasional conjecture.

The result, upon the whole, has been satisfactory; for, by 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 were to be applied; the complexity which a more refined and artificial state of society has introduced into

(d) Per Lord Hale, in King v. Melling, 1 Vent. 231.

(e) Per Wilmot, C. J., in Doc d.

Long v. Laming, 2 Burr. 1112.

(f) Per Wilmot, C. J., in Roe d. Dodson v. Grew, 2 Wils. 322.

CHAP. LII.

CHAP. LII.

Summary of

the rules of construction.

dispositions of property; and, lastly, the more extensive use of the art of writing, leading to increased facility in the exercise of the testamentary power-we are prepared to expect an incessantly growing accession to questions of this nature. But it will be found, I apprehend, that, so far from having increased in a corresponding ratio, they have, and particularly at a recent period, numerically diminished.

This must be attributed partly to the more frequent practice of resorting to, and the increased facility of obtaining, professional assistance in the preparation of wills; and partly to the maturity which the system of construction has gradually attained, and which enables persons, conversant with the subject, in most cases, to predicate, with a considerable approach to certainty, what would be the decision of a court of judicature in any given case; and, consequently, to render an appeal to its authority

unnecessary.

Some uncertainty, it will be admitted, is inseparable from the nature of the subject. Many of the rules of construction are such as necessarily involve uncertainty in the application of them to particular cases; and, in a few instances, the rules themselves are, we have seen, yet subjects of controversy. To discuss and illustrate these rules has been the design of the writer in the preceding pages.

It may be useful, however, in conclusion, to present to the reader a summary of the several rules of construction which have already been the subject of detailed examination.

I. That a will of real estate, wheresover made, and in whatever language written, is construed according to the law of England, in which the property is situate (g).

(9) Pre. Ch. 577.