7. That a devise be most favorably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the legal or proper phrases. And therefore many times the law dispenses with the want of words in devises that are absolutely requisite in all other instruments. (28) Thus, a fee may be conveyed without words of inheritance; (9) and an estate-tail without words of procreation.(r) By a will also an estate may pass by mere implication, without any express words to direct its course. As, where a man devises lands to his heir-at-law, after the death of his wife: here, though no estate is given to the wife in express terms, yet she shall have an estate for life by implication;(s) for the intent of the testator is clearly to postpone the heir till after her death; and, if she does not take it, nobody else can. (29) So, also, where a devise is of black-acre to A. and of white-acre to B. in tail, and if they both die without issue, then to C. in fee; here A. and B. have cross-remainders by implication, and on the failure of either's issue, the other or his issue shall take the whole; and C.'s remainder over shall be postponed till the issue of both shall fail. (t) But, to avoid confusion, no such cross-remainders are allowed between more than two devisees: (u) (30) and, in general, when any implications are allowed, they must *382] be such as are necessary (or at least highly probable) and not merely possible implications. (w) And herein there is no distinction between

(q) See page 108.

(r) See page 115.

(8) H. 13 Hen. VII. 17. 1 Ventr. 376.

(t) Freem. 484.

(u) Cro. Jac. 655. 1 Ventr. 224. 2 Show. 139. (w) Vaugh. 262.

or tenants in common, according to the limitations of the estates and interests devised. 3 Atk. 493. Harg. Co. Litt. 112, b., n. 1.-CHRISTIAN.

(28) Ruston v. Ruston, 2 Yeates (Pa.) 65 (1795). Jackson v. Merrill, 6 Johnson (N. Y.) 185, 190 (1810). Edwards v. Bibb, 43 Ala. 666, 672 (1869). Clark v. Hornthal, 47 Miss. 434, 499 (1872). White v. Hotton, 3 Zab. (N. J.) 425, 429 (1852). Sherrod a'. Sherrod, 38 Ala. 537, 553 (1863). Somers v. Pierson, I Harr. (N. J.) 181 (1837). Lytle v. Beveridge, 58 N. Y. 598, Sickels (1874). The doctrine that the testator's intention is the guiding and controlling rule of interpretation requires, not unfrequently a disregard of the usual technical meaning of words and phrases and when necessary such technical meaning must yield to the evident intent of the testator. Lytle v. Beveridge, 58 Sickels (N. Y.) 592, 598 (1874). Not so much regarding the propriety of grammar as their general and popular sense. Campbell v. McDonald, 10 Watts (Pa.) 182 (1841). Worrall's Accounts, 5 W. & S. (Pa.) 114 (1843). Where there is a particular and a general paramount interest in the same will, and they clash, the general interest must prevail. Leeper v. Nagle, 94 N. C. 338 (1886).

But it has been thought that, if it is given to a stranger after the wife's death, the devise raises no implication in favor of the wife, for it may descend to the heir during the life of the wife, which possibly may have been the testator's intention. Cro. Jac. 75. And courts of law have laid it down as a rule that the heir shall not be disinherited but by a plain, and not merely probable, intention. Doe v. Wilkinson, 2 T. R. 209.CHITTY.

(29) An estate may be enlarged, controlled or even destroyed by implication; but the principle must be taken subject to certain other well established rules, as that where an instrument is reduced to writing, nothing is to be implied which does not arise from the face of the writing. Carr v. Porter, 1 McCord (S. C. Eq.) 60-80 (1825).

(30) Bannister v. Henderson, I Quin (Mass.) 119, 155 (1765). The contrary has for some time been fully established; and this has been laid down by lord Mansfield as a general rule, viz., wherever cross-remainders are to be raised between two and no more, the favorable presumption is in support of cross-remainders; where between more than two, the presumption is against them; but the intention of the testator may defeat the presumption in either case. Perry et al. v. White, Cowp. 777, 797. 4 T. R. 710. And the editor conceives that cross-remainders would be raised in every case in which it appears to be the testator's intention that the subsequent devisee shall take nothing till the issue of all the first devisees are extinct. Cowp. 777, 797. 4 T. R. 710.

In a case where cross-remainders were created by a deed, lord Kenyon declared that "no technical precise form of words is necessary to create cross-remainders,-though in the verboseness of conveyancers an abundance of words is generally introduced in deeds for this purpose. 5 T. R. 431. But cross-remainders cannot be created in a deed, as in

a will, by implication, not even where the ultimate limitation is given “in default of all

the rules of law and of equity; for the will, being considered in both courts in the light of a limitation of uses, (x) is construed in each with equal favor and benignity, and expounded rather on its own particular circumstances, than by any general rules of positive law. (31)

(x) Fitzg. 236. 11 Mod. 153.

such issue," which words would probably create cross-remainders amongst any number in a will. 5 T. R. 521. I East, 416.

In a will there may be cross-remainders amongst any number by implication, where it is the manifest intention of the testator, though he has given the estates to the respective heirs of their bodies. 2 East, 36.-CHRISTIAN.

(31) Washburn on Real Prop. p. 739 (5 ed.). Upon this subject lord Eldon has expressed himself thus:—“In construing a will, conjecture must not be taken for implication, but necessary implication means not natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed." I Ves. & Bea. 466. Therefore, if the devise were to a stranger after the death of the wife, the wife would not take any thing by implication; for then it might as well be supposed that the testator meant his heir-at-law to take during the wife's life, as the wife; and, where it is so, the obvious title of the heir-at-law will be preferred. Smartle v. Scholar, 2 Lev. 207.-COLERIDGE.

A branch of this subject has been treated with consummate ability in Mr. (now Sir James) Wigram's work on "The Admission of Extrinsic Evidence in aid of the Interpretation of Wills." The learned author has deduced from the authorities the following seven propositions, which, though he has confined his inquiry to the subject of wills, seem to be equally applicable to the interpretation of deeds and other instruments:

I. "A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense; in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed."

II. "Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and when his words, so interpreted, are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered."

III. "Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense of which, with reference to these circumstances, they are capable."

IV. "Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, or to inform the court of the proper meaning of the words."

V. "For the purpose of determining the object of a testator's bou ty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, as to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.

"The same (it is conceived) is true of every other disputed point respecting which it can be shown that a knowledge of extrinsic facts can in any way be made ancillary to the right interpretation of a testator's words."

[In commenting on this proposition, a material fact is defined to be any fact which, according to the ordinary rules of evidence, tends to show which of the propositions II. and III. the circumstances of the case render applicable; in other words, whether the words, being strictly construed, have or have not a definite and reasonable meaning with reference to the actual circumstances.]

VI. "Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain cases, see prop. VII.) will be void for uncertainty."

And thus we have taken a transient view, in this and the three preceding chapters, of a very large and diffusive subject, the doctrine of common assurances: which concludes our observations on the title to things real, or the means by which they may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connections of the persons entitled to hold them: we have examined the tenures, both ancient and modern, whereby those estates have been, and are now, holden: and have distinguished the object of all these inquiries, namely, things real into the corporeal or substantial and incorporeal or ideal kind; and have thus considered the rights of real property in every light wherein they are contemplated by the laws of England. A system of laws, that differs much from every other system, except those of the same feodal origin, in its notions and regulations of landed estates; and which therefore could in this particular be very seldom compared with any other.

The subject which has thus employed our attention is of very extensive use, and of as extensive variety. And yet I am afraid it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding book. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise,

and which have been heaped one upon another for a course of seven *383] centuries, without any order or *method; and the multiplicity of acts

of parliament which have amended, or sometimes only altered, the common law: these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavor principally to select such parts of it as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers as were before strangers even to the very terms of art which I have been obliged to make use of; though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages, which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of Sir Edward Coke:(y)—" Albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him no way discourage himself, but proceed: for on some other day, in some other place," (or perhaps upon a second perusal of the same,) "his doubts will be probably removed."

(y) Proeme to 1 Inst.

VII. "Notwithstanding the rule of law which makes a will void for uncertainty where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: where the object of a testator's bounty, or the subject of disposition (i. e. the person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator."-SWEET.

CHAPTER XXIV.

OF THINGS PERSONAL.

UNDER the name of things personal are included all sorts of things movable, which may attend a man's person wherever he goes: (1) and therefore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immovable, as land and houses, and the profits issuing thereout.(2) These, being constantly within the reach and under the protection of the law, were the principal favorites of our first legislators: who took all imaginable care in ascertaining the rights, and directing the disposition, of such property as they imagined to be lasting, and which would answer to posterity the trouble and pains that their ancestors employed about them; but at the same time entertained a very low and contemptuous opinion of all personal estate, which they regarded as only a transient commodity. The amount of it indeed was comparatively very trifling, during the scarcity of money and the ignorance of luxurious refinement which prevailed in the feodal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the movables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our ancient historians, though now it would justly alarm our opulent merchants and stockholders. And hence *likewise [*385 may be derived the frequent forfeitures inflicted by the common law, of all a man's goods and chattels, for misbehaviors and inadvertencies that at present hardly seem to deserve so severe a punishment. Our ancient law books, which are founded upon the feodal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the Mirror, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta seems principally borrowed from the civilians. But of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented its quantity and of course its value, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a light nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, wherever those rules appeared to be well grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to ancient usages, and a certain feodal tincture, which is still to be found in some branches of personal property.

(1) See in general, as to what is personal property, Schouler's Pers. Prop. p. 4 (2 ed. 1884). Binn's Justice (10 ed. 1895) p. 78. For this title the choice of two reasons is given by Sir Edward Coke, "because for the most part they belong to the person of a man, or else for that they are to be recovered by personal actions." (Co. Litt. 118, b.) The latter is most probably true. When goods and chattels began to be called personals, they had become too numerous and important to accompany the persons of their owners. Williams on Pers. Prop. p. 2 (4 ed. 1872). See Warren v. Leland, 2 Barb. (N. Y.) 619, and Owens v. Lewis, 46 Ind. 512 (1873). Authorities do not agree as to whether growing crops are personal property or not. Reed v. Johnson, 14 Ill. 258 (1852). Prop. p. 6 (6 ed.). Barb. Per

(2) I Pingrey on Real Prop. p. 24. sonal Prop. 579.

Williams on Real

But things personal, by our law, do not only include things movable, but also something more: the whole of which is comprehended under the general name of chattels, which Sir Edward Coke says (a) is a French word signifying goods. The appellation is in truth derived from the technical Latin word catalla: which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was applied to all movables in general. (b) In the grand coustumier of Normandy (c) a chattel is described as a mere movable, but at the same time it is set in opposition to a fief or feud: so that not only goods, but whatever was not a feud, were accounted *386] chattels. (3) *And it is in this latter, more extended, negative sense, that our law adopts it: the idea of goods, or movables only, being not sufficiently comprehensive to take in everything that the law considers as a chattel interest. For since, as the commentator on the coustumier(d) observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or, according to us, is not a real estate: the consequence of which in both laws is, that it must be a personal estate, or chattel.

Chattels therefore are distributed by the law into two kinds; chattels real, and chattels personal. (e)

1. Chattels real, saith Sir Edward Coke, (f) are such as concern, or savor of, the realty; as terms for years of land, wardships in chivalry, (while the military tenures subsisted,) the next presentation to a church, estates by a statute-merchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates: of which they have one quality, viz., immobility, which denominates them real; but want the other, viz., a suffi cient, legal, indeterminate duration; and this want it is that constitutes them chattels. (4) The utmost period for which they can last is fixed and deter minate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not

(a) 1 Inst. 118.

(b) Dufresne, ii. 409.

(c) C. 87.

(d) Il conviendroit quil fust non mouuable et de duree a tous iours. fol. 107 a. [It must be immovable, and last forever.].

(e) So too in the Norman law, Caleux sont meubles et immeubles; si comme vrais meubles sont qui transporter se peuvent, et ensuivir le corps; immeubles sont

choses qui ne peuvent ensuivir le corps, ni estre trans-
portees, et tout ce qui n'est point en heritage. LL. Will.
Nothi, 4, apud Dufresne. h. 409. [Chattels are
movable and immovable-those which can be
transported and follow the person are movable;
immovable chattels are such as cannot follow the
person, or be transported from place to place, and
everything which is not in the inheritance.]
(f) 1 Inst. 118.

(3) Strong v. White, 19 Conn. 238, 245 (1848). C. & A. R. R. Co. v. Thompson, 19 Ill. 578, 584 (1858). Fling v. Goodall, 40 N. H. 208, 215 (1860). Wilson v. Rybolt, 17 Ind. 391, 394 (1861). State v. Bartlett, 55 Me. 210 (1867). Ins. Co. v. Haven, 95 U. S. 250 (1877). People v. Christie, 65 Hun. (N. Y.) 349, 351 (1892). Knapp v. Jones, 143 III. 384 (1893). Brantley's Pers. Prop. 5, p. 9 (1891). Schouler's Pers. Prop. vol. 1, 8, pp. 9, 23 (2 ed. 1884). Goodeve's Law of Real Prop. p. 14 (3 ed.). The word estate may properly embrace real and personal property. Shock v. Shock's Ex., 19 Pa. 255 (1852). (4) It is a rule of law in England, in common with that of most other nations, that the title by succession to personal property, wherever situated, shall be determined by the law of the domicil of the deceased owner. I H. Bla. 670. 5 Ves. 750. 5 B. & C. 451. I Hagg. 474, 498. 8 Sim. 310. But it has been denied by a justly esteemed writer that this rule extends to chattels real, on the ground that the treatment of such property as personalty is peculiar to our own law. I Jarm. on Wills, 4. 2 id. 740. The point appears to be unaffected by decision, and is perhaps open to argument on both sides. See 2 P. Wms. 622.-SWEET.

Warvelle on Vendors, p. 29. Greenleaf's Cruise on Real Prop. vol. I, pp. 47, 256 (1856). Lomax Dig. p. 386. Willard on Real Prop. p. 49 (2 ed.). Wait's Acts. & Def. vol. 2, p. 219 (1877). Schouler's Pers. Prop. ¿ 6, pp. 7, 9 (2 ed. 1884). Boone on Real Prop. p. 31, 14 (1883). Welles v. Cowles, 2 Day (Conn.) 567, 574 (1818). Warren v. Leland, 2 Barb. (N. Y.) 377, 389 (1847). Burr v. Stenton, 52 N. Y. 377, 389 (1868). Hyatt v. Vincennes Bank, 113 U. S. 242, 251 (1877).