which is referi

tion, with diffe

rent degrees of

of an instrument which is referible to presumption; an instrument, but that where the question arises upon the con- ble to struction of words, qua words, no extrinsic evidence can be admitted; still less can it be received to controul a technical rule of verbal construction.

force: but not

where it is a question as to the construction of words, que words, or as to

mitations, or

sions.

There are some equities arising upon written in struments, the strict and technical nature of which technicalexpres. seems to place them clearly out of the reach of parol evidence. I mean those which do not arise out of the presumable intention, or the moral and conscientious relations of parties; but out of an artificial system of jurisprudence, the maxims of which can be neither steady nor clear unless pursued to their consequences, and kept uniform in their application. This observation holds especially with respect to the rules which govern the succession to property; to which some equitable canons apply. of a merely positive nature, and which are grounded on accident and habit, rather than principle or presumption, Such appears to be the rule which favours the real representative, by applying the personal estate in exoneration of the land though expressly charged by the testator-a rule derived to us from the ancient policy of our ancestors, which has impressed on the law of landed property, its inveterate preferences in favour of the heir whom it was anxious to qualify with the means of sustaining the duties of the feudal relation. Though it may be observed that the abolition of the feudal tenures, and the growing interests of commerce, have made the courts very

ready to take cases out of a rule, which is considered as not agreeable to the situation of the times. Still, however, it is left standing, and though living in dishonour, is of general obligation in courts of equity.

So too, the rules which apply to and modify the titles to real and personal property, (wherein the courts of equity hold a perfect agreement with courts of law), as, for example, such as concern the rights of representation and administration, the quantity of estates expressed by certain legal idioms, the compass and effect of limitations, and the descriptive force of technical expressions (2),

(2) That parol evidence cannot be admitted to contradict such legal signification and compass of words, vide Kelley v. Paulett, Ambler 605. The sense of words as fixed by legal authority, is not to be altered by external proofs of contrary intention. Thus, for example, the sense and scope of the word Relations, where there is Of the rule in a devise to persons by that general name, or to testator's family,' construing a be(see 9 Vez. jun. 319, Crewys v. Coleman) without any words of quest to relations. more specific designation, have been adjusted to the statute of distributions in courts of equity, and adjudged to comprehend only the nearest of kin to the extent of the degrees within that statute; and extrinsic evidence will not be let in to shew that a greater or less compass was intended to be given to the word by the testator, vide Whithorne v. Harris, 2 Vez. 527, Roach v. Hammond, Prec. in Chan. 401, Harding v. Glyn, 1 Atk. 468, Green v. Howard, 1 Bro. C. R. 31.

It may be useful as the point has occurred, to collect for the reader the decisions upon it, which are rather curious.

The construction does not render the will inofficious and nugatory, since the wife is excluded, not being within the meaning of the next

are not to be shaken by extrinsic evidence. Thus, that rule of construction which makes void a remainder of personal estate, limited upon a prior

of kin, but provided for by the statute by the name of wife. Neither is it without effect, though the persons to take under this construction be the same and only such as would take under the statute, for still their shares may be different; as if a testator directs a sum to be equally divided among his relations, it must go to them per capita, and not per stirpes, see Thomas v. Hoole, Cas. Temp. Talbot, 251, Philips v. Garth, 3 Bro. C. R. 64, Butler v. Stratton, 3 Bro. C. R. 367. The rule of division is the same also where the bequest is to the next of kin, and there are brothers and brother's childrenso too if a legacy be given to the descendants of A. and B. equally, children and grandchildren take per capita. Jones v. Beale, 2 Vern. 381, which carried a bequest to relations to the children of a cousingerman, living the parent, cannot, as it seems, be law; nor if the parent of those children had been dead, and other cousin-germans living, ought it to have gone to the children of the deceased, for the statute does not carry the representation among collaterals beyond the children of brothers and sisters. And I apprehend there is no good authority for giving a share of such legacy to relations to brother's children, living the brother, vide 1 Bro. 32. But if the testator mark an intent to carry the word relations beyond the extent of the statute, the court will effectuate the disposition, the statute being only adopted from necessity. However, a legacy for a mourning ring to each of the testator's relations, by blood or marriage, was confined by the court to nearest of kin, according to the statute of distributions, and to those who had married persons entitled under it. See Davison v. Mellish, 5 Vez. jun. 529. It has been held that an exclusive appointment, under a power of appointing to and among such of testator's relations as shall be living at the time of testator's death, in such shares as the appointer shall please, is good, 1 T. R. 435, and where a trustee has the power of selecting, he may go beyond the statute of distributions, see Crewys v. Coleman, 9 Vez. jun. 319. So where a person has a power of distribution

Examples of rules of con

extrinsic evi

dence.

gift or assignment of the same to a man and the struction not to heirs of his body, and vests the absolute and ultibe opposed by mate interest in the first grantee or devisee, cannot be opposed by parol evidence. Accordingly in Stratton v. Payne', where the testator devised his personal as well as real estate to A. P. and the heirs of her body, with a limitation over in default of issue of A. P., the limitation over was adjudged void both by the court of chancery and the lords, who concurred in rejecting parol evidence, (though it was the evidence of the person who drew the will), to shew an intention in the testator opposed to this construction.

3 Bro. P. C. 257.

among poor relations, he may distribute among all poor relations however remote: but wherever the court is called in to distribute, in failure of the person so empowered, it will confine itself to relations within the statute of distributions, 1 Ca temp. Lord Redesdale, Mahon v. Savage. If a testator give to his poor relations, one who is poor at the time of the death, but becomes rich before distribution, seems not to be entitled: and if a poor relation so entitled die before distribution, his claim is held not to be transmitted, id. It is to be observed, that as the property in these cases does not pass by virtue of the statute, (the court only taking it as their guide in ascertaining the persons to take) the shares and proportions are to be regulated according to the intent of the testator, Brunsden v. Woodridge, Ambl. 507, Butler v. Shalton, 3 Bro. C. C. 367, and in a late case in the Common Pleas, the statute has been adopted as the guide for ascertaining the relations, to satisfy that term in a will` where the subject was real property.

Again, it is a rule of construction in courts, bothof law and equity, that a devise to a man and his heirs and assigns, or a bequest to or a bequest to one and his executors, administrators, and assigns, conveys no original interest to the representatives, but by transmission only, and that consequently the devise or legacy fails if the devisee or legatee die before the testator; and this construction, though it operates to destroy pro tanto the will, cannot be opposed by parol evidence of the testator's contrary intention as to the devisee; which point was decided so long ago as in the case of Brett v. Rigden, in Plowden's Commentaries (3) upon the statutes 32 and 34 H. 8. of wills, (which, like that of the 29 Car. 2, require a will to be in writing); where the evidence offered of the testator's declaration of his bountiful intention towards the heir of the deceased devisee was rejected, as being in derogation of those statutes of H. 8.; and the same point in respect to a legatee under similar circumstances, may be seen in the case of Maybank v. Brooks".

1 Bro. C. R. 84.

(3) 345, 3d point, and see the case of Doe dem. Turner v. Kett, 4 T. R. 601. A. devised to B. and the heirs of her body, B. died in the lifetime of A. A. by a codicil confirmed his will, held that the heir of B. took nothing, although it appeared that A. knew of the death of B. and of the birth of her son before he made his codicil.