The decision now made does not, perhaps, go even thus far in favor of issue left by S. Waller, in case he die under age. But whatever be the decision on that head, my understanding cannot perceive the reason for such inconsistency: and I respectfully urge, that it arises from regarding too little, as a principle of construction, the sound rationale that governed the majority of the Court in its former decision upon this very will, and that of Thomas Bell's will, and from not carrying out that principle. In a word-Since the decision in the case of Bell's and Waller's will, wherever a bequest of personal estate is to 'him and the lawful issue of his body,' an independent estate is intended to be given to the issue, somewhat similar to an estate in tail, of lands. But as the law does not indulge a testator in the full entailment he wishes; yet, we are to carry out his wish and aim, whenever it can be done by any fair construction of his will, to the extent of a life or lives in being and twentyone years and nine months after; because that extent is lawful. And I have shewn that Wm. Waller's will fairly admits of the construction formerly put upon it by the Court of Errors; to wit:-1. To Saml. Waller for life;2. To his surviving issue afterwards; whether he die under or over age.-3. In default of such issue, over to the surviving children of the testatator :-Which brings the limitation to issue, within the rules of a lawful limitation. This preserves the will of the testator to surviving issue, and follows out our leading decision upon such limitations. For these reasons I adhere to the construction formerly made, and dissent from the present decision, with the observation made upon a similar occasion by Lord Mansfield-"the first aim was the best." And for a more extended argument upon the great principle I have laid down for expounding similar last wills, I refer to Judge Nott's decision upon Thomas Wilson's will, in Carr vs. Porter, overturning Carr and Green; and that of Chancellor Harper's argument carrying out into practice Judge Nott's fine illustration of what is and what is not the allowable construction of last wills, where the words require construction: i. e. You must not make a bequest by construction; which had been done in Carr and Green's case: and equally, you must not extend it by construction, against the general desire and object expressed by the testator. For the moral will of the testator, even and although that will appears in the unfortunate words "to him and the lawful issue of his body forever,"-does yet direct, govern, and lead all mere constructive transpositions of phraseology to the true intent and wish of the testator; so as to uphold such moral will and intent and for that purpose only, "or" may read "and"; but never to defeat the intention. Our first aim being then most consistent with the expressed desire, and the wish, of Wm. Waller to favor the issue; and being entirely consistent with the long received and latterly, the sanctioned construction of W. Waller's will, is still the best and the truest aim. I do grant that I may be under some error, because I stand alone in this opinion; but, as this very opinion was once right, upon the same principle of judging it, i. e. when a majority stood up to it, I beg to be allowed to conclude by a very brief digest of the whole argument, in order to show in a few words,-that although the many new lights now introduced, may justify the present change in judgment, the former may still deserve a brief parting valedictory. Its memory can do no harm; and possibly may do good. It may caution against extending such constructions, to the reversing our best and most essential adjudications on last wills. The whole argument amounts to this: There is an independent estate intended by the testator for all the issue.-Granted.-The two decisions on Bell's will make that a fixed principle for the construction of a bequest to issue. But all subsequent intendments and mere constructions are to carry out that independent estate to issue, to the lawful extent of such limitations; i. e. to a life or lives in being and twenty-one years and nine months after. Granted again-in virtue of the same decisions. The result is plain. All mere constructions must be in favor of the issue; and, therefore, never to extend the estate of Saml. Waller, the first taker. And yet, by the merest construction, of turning "or" into "and," for the sake of the issue, the issue and the remainder lose all chance for any independent estate, the moment Saml. Waller comes of age. This might be done by a testator: but the Court can't do it by the force and dint of construction. But this constructive "and" for "or" has another striking inconsistency-the case may happen to-morrow. If Samuel Waller had died under age, leaving a child, that one favored child would have taken the estate as a purchaser; but if Saml. Waller lived to full age, then died and left that child, and many other children, it and all would be disfranchized of their independent estate, so clearly intended by the testator, by the bequest, to all his issue. Now, then, is not the extending the estate of Saml. Waller, a new bequest to him by mere construction ?— (The very error of Carr and Green.)-Is not this in derogation of, and in face of the independent estate, expressly, not impliedly given to the issue generally? But Saml. Waller is brought in as if he were one of the issue, to be favored by construction. Again-Is not the only reason for putting the conjunction "and" for "or," this, that we may preserve the estate for such issue as S. Waller might possibly leave if he died under age? It is the only reason that can justify such a change. But is not such reasoning a mere fallacy; when we perceive, that it extends the whole estate to Saml. Waller at his full age and thereby destroys the chance of that very issue and disfranchizes all surviving issue? Is not, then, the reason for this constructive introduction of "and" for "or" merely ostensible, and leading us estray? Does it not eventuate in a construction for Saml. Waller's benefit, instead of the issue? Would it not be better for the issue to let the will stand as it is; i. e. to let the estate pass to the remainder men, if Sami. Waller died under age-preserving their independent estate if they survived him, after his full age? And yet, the proposed construction is only justified for the furtherance of the bequest to issue-whose estate it destroys! Ought the Court, then, to adopt this new construction, overturning a former adjudication, that derogated not from the bequest to Saml. Waller; but avoided extending such bequest for life, to an estate forever. Where, I ask, are the premises of such a construction? They are not in the will, where alone they ought to be. The difference is striking. The present construction dis franchises both the surviving issue, and the remaindermen too; whereas the former adjudication upholds, equally, the three classes of persons intended by the testator for his bounty. For such reasons I still look upon the former adjudication as the truest, wisest and best; and I do fear a virtual, although an unintentional trenching, upon the settled principles upon which alone it was based. But as those principles were not then specifically written out and applied to W. Waller's will, but to Bell's will; let this now dissenting opinion, at least, supply that seeming neglect, afford the reasons of the Court, and serve to keep in memory this only safe rule for all mere inductive inferences or constructions of any written instrument-whether it be a legislative Act, as in Adger vs. The Mayor and Aldermen, just decided, and which gives an example of the premises indispensable to mere constructions of Acts, or written instruments. All judicial construction must be based upon premises plainly written in the body of the instrument itself, or its object; otherwise construction may become either a way of thinking for the maker, or the substitution of another instrument for his own. And it is only against such possible abuse of the rule of construction, that I would place a guard over this second adjudication of W. Waller's will. The fault of which is, that like Carr and Green, it deduces an additional bequest, where no new bequest is given by the will. But I have already said, that the defendant must still gain his case on quite another ground; and therefore no injustice follows. And my exposition is, for ulterior and general considerations of uniformity, in all mere considerations of last wills and testaments, and of all written instruments. INDEX. ABATEMENT. Vide Pleading, 4, 27, 29. 1. Defendant was sued by the name of Willison Franklin, and pleaded in ABDUCTION. Vide Indictment, 1. ACCEPTANCE. Vide Practice, 31. ACTION. Vide Bills of Exchange and Promissory Notes, 1; Dama ACTION ON THE CASE. Vide Mortgage, 12. ADMINISTRATION. Vide Executors and Administrators, 4, 5. 2. The demand and refusal of itself was evidence of a conversion from the 3. Plaintiff held entitled to recover the value of the property at any time AGENCY. Vide Evidence, 13; Practice, 28, AMENDMENT. Vide Attachment, 16, 18; Insolvent Debtors and APPEALS. Vide Insolvent Debtors and Prison Bounds Acts, 3, 5. |