4. That the deed be taken most strongly against him that is the agent or con tractor, and in favour of the other party. "Verba fortius accipiuntur contra proferentem." (15) 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. (j) 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 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. (k) 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. (7)

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. (m) 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, (16)

*6. That in a deed, if there be two clauses so totally repugnant to [*381] each other, that they cannot stand together, the first shall be received, and the latter rejected; (n) wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand. (0) 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. (17) Yet in both cases we should rather attempt to reconcile them. (p)

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; (7) 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

(j) Co. Litt. 42. (n) Hardr. 94.

(r) See page 115.

(k) Co. Litt. 134. (0) Co. Litt. 112.

(1) Bacon's Elem. c. 3(m) Co. Litt. 42. (p) Cro. Eliz. 420. 1 Vern. 30. (9) See page 108. (8) H. 13 Hen. VII, 17. 1 Vent. 376.

son, 17 Me. 372; Norris v. Showerman, 2 Doug. Mich. 16; Moore v. Jackson, 4 Wend. 58; Jackson v. Blodget, 16 Johns. 172.

(15) Hathaway v. Power, 6 Hill, 453; Cicotte v. Gagnier, 2 Mich. 381; Glover v. Shields, 32 Barb. 374. This rule, however, is one which the courts only apply when no satisfactory result can be reached by other rules of analysis and construction. 2 Washb. Real Prop. 628; Marshall . Niles, 8 Conn. 369; Carroll v. Norwood, 5 H. and J. 163.

(16) See Post v. Hoover, 33 N. Y. 593.

(17) [Such was held to be the law in the time of Lord Coke. See, accordingly, 6 Ves. 102; 5 id. 217, 407. But now where the same estate is devised to A in fee, and afterwards to B ir fee, in the same will, they are construed to take the estate as joint tenants or tenants in common, according to the limitation of the estates and interests devised. 3 Atk. 493; Harg. Co. Litt. 112, b. n. 1.]

The rule that the last clause shall prevail where two are irreconcilable, is one to be applied only in the last resort, where the instrument does not furnish better means of ascertaining the probable intent. Inglehart v. Kirwan, 10 Md. 559; Bradley v. Amidon, 10 Paige, 235. And see Auburn Seminary v. Kellogg, 16 N. Y. 83; Thrasher v. Ingram, 32 Ala. 645; Everitt v. Everitt, 29 N. Y. 39; Sweet v. Chase, 2 N. Y. 73; see also the English cases of Doe v. Davies, 4 M. and W. 599; Langham v. Sandford, 19 Ves. 647; Clayton v Lowe, 5 B. and Ald. 636.

till after her death, and, if she does not take it, nobody else can. (18) 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) (19) and, in general, where any implieations are allowed, they must be such as are nec ssary (or at least highly *probable) and not merely possible implications. (w) (20) And herein there is no distinction between the rules of law and of equity; for the [*382] will, being considered in both courts in the light of a limitation of uses, (x) 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. (21)

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 connexions 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 feudal 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 asxtensive 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 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 [*383] study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour, principally, to select such parts of it as were of the most general use, where the principals 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

(18) [But the heir shall not be disinherited but by a plain, and not merely a probable intention. Doe v. Wilkinson, 2 T. R. 209.]

(19) [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.]

In a will there may be cross remainders among 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. See 1 Taunt. 234; 2 Jarm. on Wills, 457.]

(20) See what is said by Lord Eldon on this subject in 1 Ves. and B. 466.

(21) For Mr. Jarman's rules for the construction of wills, see 2 Jarm. on Wills, ed. 1861, 762 et. seq.; Redf. on Wills, 425, note. For general rules on the same subject, see Mann v. Mann, 14 Johns. 1; Christie v. Phyfe, 19 N. Y. 344.

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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."

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 lands and houses and the profits issuing thereout. These being constantly within the reach, and under the protection, of the law, were the principal favourites 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 refinements, which prevailed in the feudal 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 misbehaviours and inadvertencies that at

(y) Proeme to 1 Inst.

(1) ["Chattels" are real or personal. Co. Lit. 118, b. Chattels real are such as concern the realty, as a term for years. Id. Chattels personal are cattle, stuff, &c., fowls, tanie or reclaimed, deer, coneys tame, fish in a trunk, tithes severed from the nine parts, trees sold or reserved upon a sale,-Hob. 173-and emblements. Com. Dig. Biens, A. 2. The terms "goods and chattels" include choses in action as well as those in possession. 12 Co. 1; 1 Atk. 1-2. But a bill of exchange, mortgage, bond, and banker's receipt, will not pass by a bequest of all the testator's property" in a particular house, though cash and bank notes would have passed, they being quasi cash; for bills, bonds, &c., are mere evidence of title to things out of the house and not things in it. 1 Sch. and Lef. 318; 11 Ves. 662. The term "chattels" is more comprehensive than "goods," and will conclude animate as well as inanimate property. The term "goods will not include fixtures; but the word "effects" may embrace the same. 7 Taunt. 188; 4 J. B. Moore, 73; 4 B. and A. 206. Invalid exchequer bills are securities and effects within meaning of 15 Geo. II, c. 13. 1.New. R. I. The terms "effects, both real and personal," in a will, pass freehold estates, and all chattels real and personal. 3 Bro. P. C. 388. As to trees, see Com. Dig. Biens, H.; 2 Saund. index, Trees: Bridgin. index, tit. Timber, when severed or contracted to be severed, from the land passes as personal property. Hob. 173; 11 Co. 50; Com. Dig. Biens; H. Toller's L. Ex. 195, 196.] Upon the general subject, see the very complete and satisfactory eatise on Personal Property by Mr. Williams.

present hardly seem to deserve so severe a punishment. Our ancient law-books, which are founded upon the feudal 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 feudal tincture, which is still to be found in some branches of personal property.

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. (6) In the grand coustumier of Normandy (e) 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 chattels. *And it is in this latter, more extended, negative sense, that our law adopts it; [*386] 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 savour 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 statutemerchant, 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 sufficient, legal, indeterminate duration; and this want it is that constitutes them chattels. The utmost period for which they can last is fixed and determinate, 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 equal in the eye of the law to the lowest estate of freehold, a lease for another's life; their tenants were considered upon feudal principles as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII. (g) A freehold, which alone is a real estate, and seems (as has been said) to answer to the fief in Normandy, is conveyed by corporal investiture and *livery of seisin; which gives the tenant so strong a hold of the land, that it never [*387] after can be wrested from him during his life, but by his own act of voluntary transfer or of forfeiture; or else by the happening of some future contingency,

(b) Dufresne II, 409.

(c) C. 87.

(a) 1 Inst. 118.
(d) Il conviendroit quil fust non morvable et de duree a tou siours, fol. 107, a.

(e) So, too, in the Nornian law. Cateux sont meubles et immeubles ; si comme vrais meubles sont qui transporter se peuvent et ensuivir le corps; immeubles sont choses qui ne peuvent en suivir le corps, ni estre transportees, et tout ce qui n'est point en heritage. LL. Will. Nothi. c. 4, apud Dufresne, II. 409.

(f) I lust. 118.

(g) See page 142.

as in estates per auter vie, and the determinable freeholds mentioned in a former chapter. () And even these, being of an uncertain duration, may by possibility last for the owner's life; for the law will not presuppose the contingency to happen before it actually does, and till then the estate is to all intents and purposes a life-estate, and therefore a freehold interest. On the other hand, a chattel interest in lands, which the Normans put in opposition to fief, and we to freehold, is conveyed by no seisin or corporal investiture, but the possession is gained by the mere entry of the tenant himself; and it will certainly expire at a time prefixed and determined, if not sooner. Thus a lease for years must necessarily fail at the end and completion of the term; the next presentation to a church is satisfied and gone the instant it comes into possession, that is, by the first avoidance and presentation to the living; the conditional estates by statutes and elegit are determined as soon as the debt is paid; and so guardianship in chivalry expired of course the moment that the heir came of age. And if there be any other chattel real, it will be found to correspond with the rest in this essential quality, that its duration is limited to a time certain, beyond which it cannot subsist. (2)

2. Chattels personal, are, properly and strictly speaking, things movable; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff, money, jewels, corn, garments, and everything else that can properly be put in motion, and transferred from place to place. And of this kind of chattels it is that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters, which were *employed upon teal [ *388] estates; that kind of property being of a mongrel, amphibious nature, originally endowed with one only of the characteristics of each species of things; the immobility of things real, and the precarious duration of things personal.

Chattel interests being thus distinguished and distributed, it will be proper to consider, first, the nature of that property, or dominion, to which they are liable; which must be principally, nay solely, referred to personal chattels: and, secondly, the title to that property, or how it may be lost and acquired. Of each

of these in its order.

CHAPTER XXV.

OF PROPERTY IN THINGS PERSONAL.

PROPERTY in chattels personal may be either in possession: which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing or else it is in action; where a man hath only a bare right, without any occupation or enjoyment. And of these the former, or property in possession, is divided into two sorts, an absolute and a qualified property.

I. First, then, of property in possession absolute, (1) which is where a man. nath, solely and exclusively, the right, and also the occupation, of any movable

(h) Page 120.

(2) [It is a rule of the law of England, in common with that of most other nations, that the title by succession to personal property, wherever it is situated, shall be determined by the law of the domicile of the deceased owner. 1 H. Bl. 670; 5 Ves. 750; 5 B. and Cr. 451; 1 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. 1 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. Wis. 622.]

(1) [It is a rule of law, that the absolute or general property of personal chattels, draws to it the supposed possession. 2 Saund. 47, a.]