£1000 per annum, and so should continue, notwithstanding any act done, or to be done, by him-that the latter words "any act," &c. extended to the time when the covenant was made, as well as to future time.'

2

In Jackson v. Stevens, where the owner of three fourths of a tract of land granted a moiety thereof by metes and bounds, with all the estate, right, title, &c. which he had in the above described premises, it was held that a moiety only passed by the deed.

In regard to agreements respecting a demise of lands, &c. subsequent words are often held to control prior ones; or rather to show what was intended by prior words. There are several cases, in which the question was raised whether an instrument is intended for a present demise, or a stipulation for a lease in future."

5. Construction is to be such that the whole instrument, or contract, and every part of it, may take effect, if it be possible consistently with the rules of law and the intention of the parties.*

The last previous rule is perfectly consistent with this, though it may seem, at the first thought, to contradict it. Under that rule, every part of the agreement does take effect; and the effect intended by the parties. One part is construed, not destroyed nor impaired, by the other. Words, used in an apparently general sense, are held to have been

Rich v. Rich, Cro. Eliz. 43. See also Gervis v. Peade, Cro. Eliz. 615; Woodyard v. Dannock, Cro. Eliz. 762. But see Hughes v. Bennet, Cro. Car. 495; Craylord v. Craylord, Cro. Car. 106; Harflet v. Butcher, Cro. Jac. 644. It will not be easy to reconcile all these cases, perhaps, with respect to the application of the rule of construction above mentioned; but the principle itself is recognized in each one of them, as well as in others cited in Browning v. Wright, 2 Bos. & Pul. 13.

2 16 Johns. 110. S. P. 1 Stark. Rep. 124, Doe v. Anderson.

? See Roe v. Ashburner, 6 D. & E. 163, and previous decisions there cited. Bac. Abr. Leases, &c. K; 2 Wend. 433.

Shep. Touch. 87; 16 Johns. 178; Randel v. Chesapeake and Delaware Canal Company, 1 Harrington, 154.

intended in a special or restrained sense, from inspecting the context, and looking to the effect. Noscitur a sociis. So that the whole and every part, as the parts are understood upon a view of the whole, have an effectual operation. This fifth is, therefore, an additional, and not a mere modifying rule-as examples will fully show.

2

"If I have in D. blackacre, whiteacre and greenacre, and I grant unto you all my lands in D., that is to say, blackacre and whiteacre, yet greenacre shall pass too."1 A case is mentioned in Savile, 71, where C. C. leased land to J. S. for twenty-one years, and covenanted that the lessee should ́ enjoy the land for the term against "the said B. C." It was held, that the word "said" should be rejected, because B. C. had not before been mentioned; but that the covenant was against the interruption of B. C., if there were any such person. So where one Brooks, who owned three parcels of land-each particularly described in the deed of one Wylie conveying them to him-made a deed of conveyance, beginning his description of the land thus: "three parcels or lots situated in Portland, and bounded as follows, to wit, the first lot beginning," &c. and setting forth the boundaries of that lot, and then closing thus-" being the same which was conveyed to me by J. Wylie, by deed dated," &c.—all the three parcels were held to have passed by the deed; otherwise the words "three parcels" would have had no effect. To restrain the meaning of "three " to the one particularly described, would have been to contradict or destroy the word, and not to expound it. If the deed had professed to convey but one lot, the reference to Wylie's deed might and ought to have been restrained, according to the fourth rule, to the description of the lot professed to

3

1 Per Lord Hobart, Hob. 172.

* Ought not this to have been regarded as a mere clerical error—a misnaming of the lessor ?

Child v. Ficket, 4 Greenl. 471.

be conveyed. Or if no reference had been made to Wylie's deed, the first lot only would have passed, because there would have been no means of ascertaining where or what the other two lots were; and then that part of the deed, which mentioned three lots, would have been void for uncertainty as to all but the one described-according to another rule of construction, which will be mentioned hereafter. So where the owner of a farm, which he held by two deeds, one conveying to him one undivided third part, and the other the residue thereof, made a mortgage of a tract of land described as being the same mentioned in his first deed, to which he referred for a description, and as being his whole farm; it was decided that he had mortgaged his whole farm, and not one third only; that the reference to the first deed was for description of the land, and not for the quantity of estate or interest mortgaged.'

In Saward v. Anstey, the defendant covenanted with the plaintiff to pay an annuity on an estate which he had purchased of the plaintiff, and to indemnify him. The annuity was charged on the land only, and not on the occupant, and belonged to the plaintiff's sisters. In a suit on the covenant, for not paying the annuity, the declaration did not aver that the plaintiff had been, damnified. It was contended that, taken all together, the covenant was only for indemnity, and that therefore no cause of action was shown. But it was decided otherwise. For if the clause of indemnity were to limit the covenant for payment to cases where the plaintiff was himself damnified, it would wholly destroy its effect. The plaintiff could not be damnified by non-payment of the annuity. The covenant for payment must, therefore, have been intended for the benefit of others (the plaintiff's sisters) for whom he doubtless meant to provide

Willard v. Moulton, 4 Greenl. 14; S. P. Jackson v. Stevens, 16 Johns. 110. 22 Bing. 519. See also Co. Lit. 146, a.

the personal responsibility of the defendant. The covenant of indemnity to himself was clearly useless.

By the construction given to the contracts, in these three instances, every part of them took effect.

The old books say that if there be two clauses or parts of a deed repugnant the one to the other, the first part shall be received, and the latter rejected, unless there be some special reason to the contrary; but that in the case of a will containing two repugnant clauses of parts, the first shall be rejected, and the last received. "The first deed and the last will shall operate," is an ancient maxim.' In modern times this maxim has very little operation. A "reason to the contrary" is almost always found. The rules of construction now applied, in cases of repugnancy, give effect to the whole and every part of a will, deed, or other contract, when that is consistent with the rules of law and the intention of the party. And when this is impossible, the part which is repugnant to the general intention, or to an obvious particular intention, is wholly rejected. Parts, which were once regarded as repugnant, are now deemed consistent.

As to wills. In Owen, 84, Anderson, J., says, conformably to the old notion, "if I devise my land to J. S. and afterwards, by the same will, I devise it to J. D.-now J. S. shall have nothing, because it was my last will that J. D. should have it." This, however, is sheer technicality, and very ill applied. The whole will, and each part of it, is as much the last will, as the last clause of it. And the whole shall stand, if it be possible consistently with the testator's intentions. Contradiction and repugnancy are not to be presumed, if in any legal way a consistent meaning can be found. In the case supposed by Anderson, J., the devisees

1 Plowd. 541; Co. Lit. 112, b; Shep. Touch. 88.

would each take a moiety of the land.' So where legacies are given to several persons, in different clauses of a will, if there is a deficiency of assets, all must abate proportionally, unless the testator uses language which shows a contrary intent; as, if he directs a particular legacy "to be first paid," or unless from his obligation to provide for a particular legatee, a contrary intent is to be inferred.

As to deeds and other contracts. In grants, &c. if words of restriction are added, which are repugnant to the grant, the restrictive words are rejected. As, if one grant all his lands, in the whole town of A, viz. in the first parish; all the lands will pass, and the scilicet is void. Otherwise, if the grant be of lands in the town of A, namely, in the first parish.* So if there be a demise of lands and woods, (described) except the woods, the exception is void. Or a lease for years to O. and his assigns, provided he shall not assign; the proviso is void. But if the scilicet or proviso be merely explanatory, and not repugnant to the grant, &c. the latter shall be limited by the explanatory clause. As in a feoffment of two acres, habendum the one in fee, and the other in tail, the habendum only explains the manner of taking, but does not restrain the gift. In these last, and similar examples, the substance of the premises is not altered.'

Whatever is expressly granted, or covenanted, or promised, cannot be restrained or diminished by subsequent provisos, restrictions, &c.; but general or doubtful clauses precedent may be distributed or explained by subsequent words and clauses not repugnant or contradictory to the express grant, covenant, or promise. Nor can subsequent

1 See Wallop . Darby, Yelv. 209; Plowd. 541, in margine; Swinb. Part I. § V.; Co. Lit. 112, note 144; 13 Mass. 535.

2 Hob. 173.

3 See Hob. 172, 173; Mo. 880; Bac. Ab. Grants, I. 1, Jackson v. Ireland, 3 Wend. 99.

4 See Cutler v. Tufts, 3 Pick. 272.