that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues, (and these are the persons most likely to be present in the testator's last illness) and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II, c. 6, which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circum- [ 378 ] stances, by the court 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. Another inconvenience was found to attend this new Remedies against de. method of conveyance by devise; in that creditors by bond visees. 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, provided, that all wills, and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, should (as against such creditors only) be deemed to be fraudulent and void and that such creditors might maintain their actions jointly against both the heir and the devisee. This statute was repealed by the I W. 4, c. 47, but its provisions were re-enacted and extended to certain cases which were not provided for by the first statute. Thus, x M. 31 Geo. 2; 4 Bur. 1. 430. How a devise is considered, and what it will pass. But under the former act, it was held that an action of covenant 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 subscription of the witnesses is not required by law," 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 its 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-pur[379] chased lands will pass under such devise, unless subsequent to the purchase or contract, the devisor republishes his will.d We have now considered the several species of common assurances, whereby a title to lands and tenements may be General rules 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, of construction of assurances. 1. According to the intention of the parties. 1. That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law y Wilson v. Knubley, 7 East. 128; and see ante, p. 207.j z See page 209. a 1 P. Wms. 575; 11 Mod. 148. b Moor. 255; 11 Mod. 127. c1 Ch. Cas. 39; 2 Ch. Cas. 144. d Salk. 238. will admit. For the maxims of law are, that "verba intentioni debent inservire ;" and "benigne interpretamur chartas propter simplicitatem laicorum." And therefore the construction must also be reasonable, and agreeable to common understanding. tion of words. 2. That quoties in verbis nulla est ambiguitas, ibi nulla 2. Construcexpositio contra verba fienda est:8 but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso.h 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. made of the 3. That the construction be made upon the entire deed, 3. Must be and not merely upon disjointed parts of it. "Nam ex entire deed. antecedentibus et consequentibus fit optima interpretatio." And therefore that every part of it, be (if possible) [380] made to take effect; and no word but what may operate in some shape or other.1 "Nam verba debent intelligi cum effectu, ut res magis valeat quam pereat.” "'m taken most against the 4. That the deed be taken most strongly against him 4. Must be that is the agent or contractor, and in favour of the other strongly party. "Verba fortius accipiuntur contra proferentem." grantor. As, if tenant in fee- simple grants to any one an estate for life, generally, it shall be construed an estate for the life of the grantee. For the principle of self-preservation will make men sufficiently 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 afterwards at liberty to put their own construction upon them. But here a distinction must be taken between an indenture and a deed-poll; for * And. 60. f 1 Bulstr. 175; Hob. 304. g 2 Saund. 157. h Hob. 27. i 10 Rep. 133; Co. Litt. 223; 2 Show. 334. k 1 Bulstr. 101. 11 P. Wms. 457. m Plowd. 156. n Co. Litt. 42. 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, because the other party hath given his consent 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. And, in general, this rule, being a rule of some strictness and rigour, is the last to be resorted to; and is never to be relied upon, but where all other rules of exposition fail.P 5. That, if the words will bear two senses, one agreeable to, and another against, law; that sense be preferred which is most agreeable thereto. As if tenant in tail lets a lease to have and to hold during life generally, it shall be construed to be a lease 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. 6. That, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first 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.t 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 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. 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 its course. As, where a man devises lands to his heir at 。 Co. Litt. 134. P Bacon's Elem. c. 3. q Co. Litt. 42. Hardr. 94. • Co. Litt. 112. t Cro. Eliz. 420; 1 Vern. 30. u See page 48. v See page 53. 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;" 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. 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. But according to the former rule no such cross remainders were allowed between more than two devisees; however this doctrine is now over-ruled, and the intention of the testator will alone be attended to; and, in general, where any [293] implications are allowed, they must be such as are necessary (or at least highly probable) and not merely possible implications. And herein there is no distinction between the rules of law and of equity; for the will, being considered in both courts in the light of a limitation of uses, is construed in each with equal favour and benignity, and expounded rather on its own particular circumstances, than by any general rules of positive law. 376. a H. 13 Hen. 7, 17; 1 Ventr. x Freem. 484. y Cro. Jac. 655; 1 Vern. 224; 2 Show. 139. T |