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and jury before whom such will shall be contested. And in a much later case « the testimony of three witnesses, who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts ; and the reasons given on the former determination were said to be insufficient.

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ANOTHER inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M. c. 14. hath provided, that all wills, and teftaments, limitations, dispofitions, and appointments of real estates, by tenants in feesimple or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void : and that such creditors may maintain their actions jointly against both the heir and the devisee.

A WILL of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject : with this difference, that in other conveyances the actual subscripa tion of the witnesses is not required by law w, though it is prudent for them so to do, in order to assist their memory when living and to supply their evidence when dead ; but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in it's nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will*, Wherefore no after

* M. 31 Geo. II, 4 Burr. I. 430. w Sce pag. 307.

IP. Wins, $75. 11 Mod. 148.


purchased lands will pass under such devise y, unless, subse quent to the purchase or contract?, the devisor re-publishes his will a,

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We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are, ; ,

1. That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit b. For the maxims of law are, that “ verba in6 tentioni debent infervire;" and,benigne interpretamur chartas propter fimplicitatem laicorum.And therefore the construction must also be reasonable, and agreeable to common understanding

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2. That quoties in verbis nulla eft ambiguitas, ibi nulla expofitio contra verba fienda eft d: but that, where the intention is clear, too minute a stress be not laid on the strict and precise fignification of words ; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e conversoe. And another maxim of law is, that “ mala grammatica non vitiat chartam ;" neither false English nor bad Latin will destroy a deed. Which perhaps a classical critic may think to be no unnecessary caution,

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3. That the construction be made upon the entire deed, and not merely upon disjointed parts of it. “ Nam ex ante«s cedentibus et consequentibus fit optima interpretatio k.And

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y Moor, 255. 11 Mod. 127.
z i Ch. Car, 39. 2 Ch. Caf. 144.
• Salk, 238.
b. And, 60.
6 i Bulsts, 175. Hob. 304,

d 2 Saund. 157.
e Hob. 27.

f 10 Rep. 133. Co. Litt. 223.
2 Show. 334.
8 : Buller, tel.


therefore that every part of it, be (if possible) made to take effect; and no word but what may operate in some shape or other”. “ Nam verba debent intelligi cum effectu, ut res magis 6 valeat quem pereati."

4. That the deed be taken moft strongly against him that is the agent or contractor, and in favour of the other party. * Verba fortius accipiuntur contra proferentem.As, if tenant in fee-fimple grants to any one an estate for life, generally, it shall be construed an estate for the life of the granteei, For the principle of felf-preservation will make men fuffici.ently careful, not to prejudice their own interest by the too extensive meaning of their words: and hereby all manner of deceit in any grant is avoided ; for men would always affect ambiguous and intricate expressions, provided they were after- , wards at liberty to put their own construction upon them. But here a distinction must be taken between an indenture and a deed-poll: for the words of an indenture, executed by both parties, are to be considered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, but the other party hath given his confent to every one of them. But in a deed-poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him k. And, in general, this rule being a rule of some strictness and rigor, is the last to be resorted to, and is never to be relied upon, but where all other rules of exposition fail'.

5. THAT, if the words will bear two fenfes, one agreeable to, and another against, law; that sense be preferred, which.. is most agreeable theretom. As if tenant in tail lets a lease for life generally, it shall be construed for his own life only, for that stands with the law; and not for the life of the lessee, which is beyond his power to grant.

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6. THAT, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the firit shall be received and the latter rejected * : wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand. Which is owing to the different natures of the two instruments; for the first deed, and the last will are always most available in law. Yet in both cases we should rather attempt to reconcile them ?.

7. That a devise be most favourably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the legal and proper phrases. And therefore many times the law dispenses with the want of words in devises, that are absolutely requisite in all other in{truments. Thus a fee may be conveyed without words of inheritance ?; and an estate-tail without words of procreation'. By a will also an estate may pass by mere implication, without any express words to direct it's course. As, where A 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 the shall have an estate for life by implication.; for the intent of the teftator is clearly to postpone the heir till after her death; and, if she does not take it, nobody else can. So also, where a devise is of black-acre to A and of whiteacre 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, But, to avoid confusion, no such cross remainders are allowed between more than two devisees"; and, in general, where any implications are allowed, they must be such as are necesary (or at least highly

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probable) and not merely possible implications . And herein there is no distinction between the rules of law and of equity; for the will, being confidered in both courts in the light of a limitation of uses *, is construed in each with equal favour and benignity, and expounded rather on it's own particular circumstances, than by any general rules of positive law.

And thus we have taken a transient view, in this and the three preceding chapters, of a very large and diffufive 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 connexions of the perfons entitled to hold them: we have examined the tenures, both antient and modern, whereby those estates have been, and are now, holden: and have distinguished the object of all these enquiries, 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, exçept those of the same feodal origin, in it's 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 offered the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding volumé. 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 centuries, without any order or

w Vaugh. 267

* Fitzg. 236. s1 Mod. 153

method ;

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