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1825.

Wright

V.

Denn.

are used by a

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annexed to them. It is our duty to give effect to all the words of a will, if, by the rules of law, can be done. And where words occur in a will, their plain and ordinary sense is to be attached to them, unless the testator manifestly applies Where words them in some other sense. But, if words are testator, which used by him, which are insensible in the place in the place where they occur, or their common meaning is deserted, and no other is furnished by the will, ordinary Courts are driven to the necessity of deeming serted, and no them as merely insignificant or surplusage, and nished by the to find the true interpretation of the will without be entirely disthem. In the present case, the words, "all the rest of my lands and tenements," stand wholly disconnected with any preceding clause. There is nothing to which "the rest" has relation, for no other devise of real estate is made. We have no certain guide to the testator's intention in using them. We may indulge conjectures; but the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of intention found on the face of the will.

The next clause is, "provided she has no lawful issue." The probable intention of this proviso was, "provided she has no lawful issue" by me. Men do not, ordinarily, look to remote occurrences in the structure of their wills, and especially unlearned men. The testator was young, and his wife young, and it was natural for them not to despair of issue, although, at the time of the will, he was in ill health. In case of leaving children, posthumous or otherwise, he might

regarded.

Wright

V.

Denn.

1825. think, that the gift to his wife of the whole of his real estate, would be more than conjugal affection could require, or parental prudence justify. In that event, he might mean to displace the whole estate of his wife, and to leave her to her dower at the common law, and the children to their inheritance by descent. This interpretation would afford a rational exposition of the clause, and, perhaps, ought not to be rejected, although there is no express limitation in the words. In this view, it is not very material, whether it be considered as a condition precedent or subsequent, though the general analogies of the law would certainly lead to the conclusion, that it was in the latter predicament. But even in this view, which is certainly most favourable to the plaintiffs in error, it falls short of the purposes of the argument. As a condition, in the event proposed, the prior estate to the wife would be defeated; but there would be no estate devised to the issue. They would take by descent as heirs, and not by devise. It would be going quite too far to construe mere words of condition to include a contingent devise to the issue; to infer from words defeating the former estate, an intent to create a new estate in the issue, and that estate a fee, and a clear substitute for the former. No Court would feel justified, upon so slender a foundation, to establish so broad a superstructure. Nor can any intention to give a fee to the wife be legally deduced from the proviso, in any way of interpreting the terms, because it is as perfectly consistent with the inten

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V.

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tion to defeat a life estate, as a fee in the whole 1825. of the lands. The testator, with a limited proWright perty, might justly think it too much to take from his own issue the substance of their inheritance during a long minority, in favour of a wife, who might live many years, and form new connexions. In such an event, leaving her to the general provision of law, as to dower, would not be unkindness or injustice. But, it is sufficient to say, that the words are too equivocal to enable the Court to ascertain from them the clear purpose of establishing a fee. And if the proviso refers to any lawful issue by any other husband, then it must be deemed a condition subsequent; and in the events which have happened, the estate of the wife, whether it be for life or in fee, has been defeated, and the plaintiffs in error are not entitled to reverse the present judgment. Quacunque via data est, the proviso cannot help the case.

It remains now to consider the succeeding clause of the will, in which the testator repeats his devise, and gives to his wife "all his lands," &c. dropping the words "the rest," and, therefore, showing that he did not understand them as having any other or stronger import than the will presented without them, Then follow the words, "by her freely to be possessed and enjoyed;" upon which great stress has been laid at the bar. If these words had occurred in a will devising an estate for years, or for life, or in fee, in express terms, they would not, probably, have been thought to have any distinct auxiliary signification, but to be merely a more full annun

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1825. ciation of what the law would imply. Occurring in a clause where the estate is undefined, they are supposed to have a peculiar force; so that,

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66

freely to possess and enjoy," must mean to possess and enjoy without any limitation or restriction as to estate or right. The argument is, that a tenant for life is restricted in many respects. She can make no permanent improvements or alterations; she is punishable for waste, and is subject to the inquisition of the reversioner. But, if this argument is admitted, it proves, not that a fee is necessarily intended, but that these restrictions on the life estate ought to be held to be done away by the words in question. They admit of quite as natural an interpretation, by being construed to mean, free of encumbrances; and, in this view, are just as applicable to a life estate as a fee. Perhaps the testator himself may have entertained the notion, that the legacies in his will, or that of his father, were encumbrances on the estate; and if so, the words would indicate an intention, that the wife should be disencumbered of the burthen. in what way are we to reconcile the argument deduced from this clause, with that drawn on the same side from the preceding proviso? How could the testator intend, that the wife should "freely possess and enjoy" the lands in fee, when, in one event, he had stripped her of the whole estate, and that by a condition inseparably annexed as an encumbrance to her estate? We ought not to suppose that he intended to repeal the proviso under such a general phrase. The

But

Wright

V.

Denn.

case of Loveacres v. Blight, Blight, (Cowp. Rep. 352.) 1825. has been supposed to be a direct support of the argument in favour of a fee. In that case, the testator made the following devise: As touching such worldly estate wherewith it hath pleased God to bless me in this life, I give," &c. " in the following manner and form: First of all, I give and bequeath to E. M., my dearly beloved wife, the sum of five pounds, to be paid yearly out of my estate, called G., and also one part of the dwelling house, being the west side, with as much wood craft, home at her, as she shall have need of, by my executors hereafter named. I give," &c. "unto my son, T. M., the sum of five pounds, to be paid in twelve months after my decease. I give unto my granddaughter E., the sum of five pounds, to be paid twelve months after my decease. Item, I give unto J. M., and R. M., my two sons, whom I make my and ordain my sole executors," &c. "all and singular my lands and messuages, by them freely to be possessed and enjoyed alike." The question was, whether, by this clause, the sons took an estate for life, or in fee. The Court held, that they took a tenancy in common in fee. Lord Mansfield, in delivering the opinion of the Court, admitted, that if the intention were doubtful, the general rule of law must take place. But he laid stress upon the circumstance, that the estate was charged with an annuity to his wife, so that the testator could not mean by the word " freely," to give it free of encumbrances. He thought the free enjoyment must, therefore, mean, free from

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