6

"The intention of the testators," say the counsel for the ap- 1788. pellants, "ought to prevail in the construction of wills; that these "are presumed to be made in extreme weakness, and without "good advise; that, therefore, great indulgence has been shown "to improprieties of expression; and judges have frequently "added, subtracted, changed, and transposed words; that, ac"cording to this rule, these words in the will, and, likewise, if 'William should die without heirs, to go to Francis,' should be "read thus: and, likewise, if William should die, before he comes to lawful age, without heirs of his body, his estate to go to Francis;' that this alteration is agreeable to the meaning of the "testator, because, after having just before mentioned his chil"dren, and William amongst them, he says, if any one of my ' aforesaid children should die, before they come to lawful age, 'their lands to go to the survivors;" and then, immediately, pro"ceeds, binding this part and the following into one sentence, "by these strongly connecting explanatory words, that is, if • Thomas should die before he comes to lawful age, I give his 'share of land, where William now lives, to my daughter Eliza'beth Tilney, to her, and the lawful begotten heirs of her body, forever; provided Thomas have heirs before he come to lawful then to him, and his heirs, forever; and, likewise, if William Bagwell should die without heirs, to go to Francis, &c.' "that this construction is consistent with the design of the tes"tator, expressed in the foregoing part of his will, where he

age,

6

gives William an estate in fee simple; that this estate, being given to the testator's immediate heir at law, ought not to be "diminished by the following words, unless they necessarily require it so to be; that they do not thus require it to be dimi"nished; that all the different parts of the will are reconcileable; "that there was a fee simple given to William, with an executory devise over to Francis, upon the contingency of William's dying before he came to lawful age, and without heirs of his "body; that the contingency never happened; but William died "seised of the fee simple.'

Many authorities have been read, and ably applied, in support of these principles.

By the counsel for the respondent, it is urged, "that the con"struction contended for, on the other side, is arbitrary and inadmissible; that there is plainly an estate in fee tail, given to "William Bagwell, because, it is impossible, as was conceded from another, that they are of very little use to those who receive them. This matter deserves very serious consideration.

It is much to be wished, that every citizen could possess a freehold, though some of them might happen to be small. Such a disposition of property cherishes domestic happiness, endears a country to its inhabitants, and promotes the general welfare. But, whatever influence such reflections might hare upon us, on other occasions, they can have little, if any, on the present, for reasons that will hereafter appear.

" by

1788.

"by the counsel for the appellants, that he could die 'without 'heirs,' as long as his brother Francis, to whom the limitation "over is made, was living; and, therefore, that limitation de"monstrates, that by the words without heirs,' was meant, without heirs of his body;' that there is no necessity for over "throwing the fee tail, thus evidently limited; that the words, ' if any one of my aforesaid children should die, before they come 'to lawful age,' &c. were proper, if only some of them were "under age; that there is reason to believe, from the fact "stated, of William's being the eldest son, and of his living by "himself; and, more especially, from the words made use of in "the limitation over upon his death, in which there is no men"tion of his dying before lawful age,' that he was of age at "the making of the will; that this construction is confirmed by "the limitations over upon the deaths of Thomas and John, "which are expressly made to depend not only upon their dying 'without heirs,' as with respect to William, but, also, upon their dying before they come to lawful age;' that these words are "omitted again, in the limitation over upon the death of Ann, " and, in all probability, for the same reason; that the testator "has, in this manner, repeatedly varied his language, in con"formity to his own views; that these views, thus declared, "ought not to be controuled by implications, and disappointed "by additions, subtractions, changes, or transpositions, supposed "to be more agreeable to his mind; that this would be to make "wills, not to interpret them; that the construction, in favour of "the respondent, is more easy and natural than that in favour of "the appellants, and is much recommended, by not offering such "violence to the expressions of the testator."

The counsel for the respondent have insisted on this construction with a great force of argument, drawn from reason and authorities. We have, therefore, thought fit to employ a considerable. time in our deliberations upon this cause.

It is agreed, by the counsel for the appellants and for the respondent, that the intent of the testators ought to govern in the construction of wills, except where a disposition is made contrary to law. As there is no such disposition now in question, the sole inquiry is, What was the intent of the testator?

This intent is to be collected from the entire will, and not from any disjointed parts. Technical terms are not necessary for conveying it; and, if such are used, their legal acceptation may be controuled by other words, plainly declaring the meaning of the testator. 2 Black. 379. 2 Burr. 770. 1 Vez. 142. Doug. 309. 327. Cowp. 239. 659. Vin. tit. Devise, 181. No words are to be rejected, that can possibly have any sense assigned to them, not incompatible with clearer expressions, or manifest general intent. Cases tempt. Talbot, 29. 6 Mod. 112.

In the present instance, the testator, at first, certainly gives a 1788. fee simple to his son William: yet, if the devise over to Francis, "if William should die without heirs," is a substantive clause, independent of the next foregoing clause that begins with the words, "if any one of my aforesaid children should die before "they come to lawful age," the fee simple is turned into a fee tail. On the other hand, if these two clauses are but parts of one continued sentence, through the whole of which, the testator's disposing design holds on uncompleted until the conclusion, then the fee simple remained in William, with an executory devise to Francis, dependent on the event of William's "dying without " heirs" of his body, and "before he came to lawful age.'

"

It has been strongly objected, by the respondent's counsel, "that the construction, urged for the appellants, breaks through "the words of the will, to let in an estate by implication, under "the notion of a power being vested in judges to determine the "intention of the testator, by adding to, or taking from, his "words; a construction, so severe, that it may well be compared "to the bed of Procrustes; if the expression is too short, rack it "out; if too long, lop off part."

The power of judges would, indeed, be as exceptionable as it is represented to be, if as extensive as it is supposed to be, in the objection: but, the alteration of words, by judges, in considering wills, are not made, strictly speaking, to discover the intention of testators, but only to express it properly when discovered. They do not introduce a supposed intention, but wait upon the true intention.

It was observed, in answer to this objection, by the learned gentleman who replied for the appellants, "that the respondent's "counsel themselves, make use of implications in sustaining their ❝own construction; for, in order to form the estate tail asserted, by them to be limited to William Bagwell, they are obliged to "this clause, and, likewise, if William Bagwell should die with' out heirs,' to add these words, of his body; and again, to render "their construction consistent with reason, they are compelled to "allow that the limitation over to Francis, gives him a fee tail "according to the intention of the testator, though only an estate "for life according to the words of the will."

There is great weight in this observation. It proves the will to be so defective in expression, that, though the two parties are led into opposite deductions, yet each of them is under a necessity of being guided by implications. Nor, is the use of implications, while bounded by legal limits, to be condemned; because, they are to be admitted only for effectuating the general intent of testators. 1 Burr. 50, 51.

We must, therefore, still recur to the original question, What was the intention of the testator? VOL. IV.

C

The

1788.

The attempt of the respondent's counsel, to show, that William was of age at the making of the will, is ingenious. However, the fact is not found, and we cannot suppose it. Indeed, it appears to be contradicted by these words, "All the rest of my personal "estate I give unto my wife and my six aforesaid children, to "be equally divided among them, to them, and their heirs, for"ever, viz. Thomas, William, Francis, John, Ann, and Valiance "Bagwell. I set my boys at age at eighteen, and girls at sixteen, and their estate to be divided presently after my decease, "by my friends, &c. whom I leave as overseers over my children, &c." Here the word "their" plainly refers to his "boys" under eighteen, and the words "estate to be divided presently, &c." refers to the foregoing words, " to be equally divided among "them, &c." and as William is named as one of the "six afore “ said children,” among whom the residue of the personal estate was thus "to be equally divided, &c." he and the other five chil dren seem to be classed together, as being all under age.

It is true, that these words, "if any one of my aforesaid chil"dren should die before they come to lawful age, their lands to "go to the survivors," do not prove, by then relation to what went before, that William was then under age, though he was one of the "aforesaid children:" for, as was observed by the respondent's counsel, the words may well be satisfied, if only some of them were under age. But these words, taken in connexion with those that precede, and, with those that follow them, acquire a very different and a decisive force.

The directions, at first, are only general, relating, without name, to " any one of the aforesaid children," and without distinction, "to the survivors." These general terms are immediately succeeded by this explanatory specification; "that is, if "Thomas should die before he comes to lawful age, I give his "share of land where William now lives, to my daughter Eliza"beth Tilney, to her, and her lawful begotten heirs of her body, "forever; provided Thomas have heirs before he comes to law"ful age, then to him, and his heirs, forever; and, likewise, if "William Bagwell should die without heirs, to go to Francis; "and if Ann should die without heirs, to go to Valiance; and if

John should die before he come to lawful age, without heirs, "then his share of land here, where I now live, I give to my "daughter Comfort Leatherberry, to her and her lawfully begot"ten heirs of her body, forever.”

Construing these words, "that is," according to the common manner of speaking, and so they ought to be construed, it is plain, that the testator designed in his subsequent words to be more part uar, or exact, than he had yet been, and as in these he mentions William again, and makes a substitution in case of his dying, it is evident, that William was meant, by the testator, as

"one"

"one" of his "aforesaid children," whose lands, if they "should 1788. "die before they came to lawful age," should "go to the sur"vivors."

It is remarkable how much pains the testator employed, in this part of his will, to prevent his meaning from being mistaken. In the limitation over, if Thomas should die, he applies his former direction thus: " that is, if Thomas should die before he comes to lawful age, I give his share of land to my daughter Elizabeth Tilney, &c." And then to guard against a misconstruction of these words, whereby Thomas's issue might be disinherited, in case Thomas should die before he came to lawful age, leaving issue, subjoins," provided Thomas have heirs before he comes to lawful age, then to him and his heirs forever."

No point of law can be clearer, than that this devise gives a fee simple to Thomas, with an executory devise to Elizabeth Tilney, if Thomas should die without heirs of his body, and before he should come to lawful age. Why should not the like provision be extended to the case of William, when the testator after this full exposition of his mind with regard to substitution, instantly adds," and likewise it William Bagwell should die without heirs to go to Francis." The most obvious and natural construction of these words, is, that William's estate should be no otherwise affected by the limitation over to Francis, than Thomas's was by the limitation over to Elizabeth; though, perhaps, the testator also meant, that Francis should take such an estate as Elizabeth would take on a similar contingency.

This construction is further recommended by the consideration, that the limitation over to Francis is nonsense, it not being said, what is "to go" to him, unless it refer to the preceding words. The very imperfection in this part of the will carries strong evidence in it, that the testator at the instant of using this expression, united it in his idea to the antecedent part, especially as he employs the same peculiarity of phrase for transferring the estate in both places.

The beginning of this explanation states Thomas to be under age. The conclusion of it states John to be under age. Between these are comprehended the provisions respecting William and Ann. From first to last, the words are a.. contacted by the word "and" without the intervention of any stop. If then the two extremes relate to persons under age, and are confessedly explanatory of the general directions first mentioned, the, intermediate parts must also refer to persons under age, and be explanatory of the same directions as to them, for there is no period at which the explanation rests, before the end of the devise to Comfort Leatherberry.

We can easily account for inaccuracies in the testator's expressions, from sickness, hurry, want of knowledge or assistance: but, we cannot account for such an inequality of distributions as

is