Revocation is an act of the mind which must be demonstrated by some outward and visible sign. The statute prescribes what those signs are. If any of these are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation.[275]

It would be manifestly a harsh and an unjust construction to place upon the statute, that because a will was destroyed in any one of the modes pointed out, that a strict interpretation required a revocation. Hence, where the destruction was done unadvisedly, or by some other casualty, it was held, it could not amount to a revocation. Thus, where a will was gnawed to pieces by rats, but the pieces, being collected, were afterwards put together, the will was admitted to probate.[276]

And in Perkes v. Perkes,[277] a testator having quarreled with a person who was a devisee in his will, in a fit of passion took the will out of the desk, and, addressing some words to a bystander, tore it twice through, but was prevented from proceeding further by the interference of the other person and the submission of the devisee; and he then became calm, put up the pieces and said: “It is a good job it is no worse”; and after fitting the pieces together, added: “There is nothing ripped that will be any signification to it.” The jury found that the act of canceling was incomplete at the time the testator was stopped; and the court was of opinion that that conclusion was right, and that the will was not revoked.

Where a testator, with an intent to revoke his will, endeavors to destroy it in some of the modes pointed out, but through the fraud, imposition, or other deception of a person; the act is prevented being completed, it shall not prevent a revocation. The following case is a striking one, and illustrates this principle. A testator, (who had for two months declared himself discontented with his will) being one day in bed near the fire, ordered M W, who attended him, to fetch his will, which she did and delivered it to him, it being then whole, only somewhat erased. He opened it, looked at it, then gave it something of a rip with his hands, and so tore it as almost to tear a bit off, then rumpled it together, and threw it upon the fire, but it fell off. It must soon have been burnt, had not M W taken it up, which she did, and put it in her pocket. The testator did not see her take it up, but seemed to have some suspicion of it, as he asked her what she was about, to which she made little or no answer. The testator, several times afterwards, said that was not and should not be his will, and bid her destroy it. She said at first, “so I will, when you have made another”; but afterwards, upon his repeated inquiries, she told him that she had destroyed it, though in fact it was never destroyed, that she believed he imagined it was destroyed. She asked him who his estate would go to when the will was burnt; he answered, to his sister and her children. He afterwards told a person that he had destroyed his will, and should make no other until he had seen his brother, J M, and desired the person to tell his brother that he wanted to see him. He afterwards wrote to his brother, saying, “I have destroyed my will, which I made, for upon serious consideration, I was not easy in my mind about that will,” and desired him to come down, saying, “If I die intestate, it will cause uneasiness.” The testator, however, died without making another will. The jury, with the concurrence of the judge, thought this a sufficient revocation of the will, and on a motion for a new trial it was so held, and that throwing it on the fire, with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute.[278]

The English courts are more strict in requiring a substantial compliance with the statute than our courts are. In the American cases, the intention is looked upon as the most material and controlling element: as where a testator asked for his will on his sick bed, and was handed an old letter, which he destroyed, supposing it to be his will, it was held to be a good revocation.[279]

And where a testator threw his will upon the fire, animo revocandi, and it was taken off and preserved, before any words were burned, and without the testator’s knowledge, it was decided, by a very able court, that it did amount to revocation.[280] So, where a testatrix burns a paper, which she supposes to be her will, and by mistake or the fraud of others burns a different paper, and remains under this misapprehension during her life, it amounts, in law, to a revocation.[281] But in a case in Vermont it was held that the mere intention or desire to revoke one’s will, until carried into effect in the manner prescribed in the statute, can have no effect; however, if such intention is defeated by fraud, a court of equity will prevent a party moving from any benefit of such fraud.[282]

The two words “canceling” and “obliterating” have occasioned more uncertainty than the others used in the statute, because it is not so easily or exactly determined what acts shall amount to a cancelation and what to an obliteration of the will. In one case, the will was found with another testamentary paper, but the place in which the names of the attesting witnesses should have appeared, upon the latter, was scratched over with a pen and ink, so that no letter of a name could be deciphered: it was held that this paper was thereby revoked, and the will was admitted to probate alone.[283]

It seems to be settled, that from the fact of interlineations and erasures appearing upon the face of a will, no such presumption arises, as in the case of deeds and other instruments, that they were made before execution. But in regard to a will the case is different. Hence, where the testator makes an alteration in his will by erasure and interlineation, or in any other mode, without authenticating such alteration by a new attestation in the presence of witnesses, or other form required by the statute, the will, therefore, stands in legal force the same as it did before, so far as it is legible after the attempted alteration,[284] but if the former reading cannot be made out by inspection of the paper, probate is decreed, and such illegible portions are treated as blanks.

In a case in Pennsylvania,[285] where the will was found in the testator’s private desk, with the seals of the envelope broken, and a black line drawn through the name of the testator, and there was no evidence how or with what intent it was done, it was held a sufficient revocation. Vice-Chancellor Wood, in a case in New York,[286] decided that where a testator, having torn off the signature from the first four sheets of his will, and struck his pen through the signature upon the remaining sheet, the animus revocandi being proved, it was a sufficient revocation.

The clearest statement of the law on this head was made by an eminent judge, whose language very clearly sums up the law. Chief Justice Ruffin, in a case in North Carolina,[287] says:

“The statute does not define what is such a cancelation or obliteration as shall amount, conclusively, to a revocation of a will. Burning, or the utter destruction of the instrument by any other means, are clear indications of purpose which cannot be mistaken.

“But obliterating may be accidental, or may be partial, and therefore is an equivocal act, in reference to the whole instrument, and particularly to the parts that are unobliterated. So, canceling, by merely drawing lines through the signature, leaving it legible, and leaving the body of the instrument entire, is yet more equivocal, especially if the instrument be preserved by the party, and placed in his depository as a valuable paper. It may be admitted that the slightest act of cancelation, with intent to revoke absolutely, although such intent continue but for an instant, is a total and perpetual revocation, and the paper can only be set up as a new will. But that is founded upon the intent. Without such intention, no such effect can follow; for the purpose of the mind gives the character to the act. When, therefore, there appears a cancelation, it becomes necessary to look at the extent of it, at all the conduct of the testator, at what he proposed doing at the time, at what he did afterwards.... For, although every act of canceling imports, prima facie, that it is done animo revocandi, yet it is but a presumption which may be repelled by accompanying circumstances.”

There seems to be no question, according to Jarman,[288] that, under the Statute of Frauds and other similar statutes, as parts of an entire will may be revoked, in the same mode the whole may be so revoked. The same rule has been adopted in this country, to some extent. The question was ably examined by Surrogate Bradford, in a case in New York.[289] In that case, a testator, after his will had been prepared and executed, becoming dissatisfied with one of the devisees, his own daughter, struck out the devise to her, which was contained in these words: “To my beloved and only daughter, Sarah Ann McPherson, I give and bequeath,” etc. In a note to the foot of the page, he gave as a reason for striking out this devise, the bad treatment of his daughter, and afterwards altered a phrase in his will where “children” was used, and substituted “sons” instead, so as to exclude the said daughter. In examining this question, the learned Surrogate assumed that a part of a will might be obliterated in the same mode as the whole, and referred to various decisions in support of this view. He, however, held that, as the subsequent alteration, substituting “sons” for “children,” was invalid, not having been re-witnessed, as is required, that the obliteration of the devise was not effectual as to that part, and could not be treated as a revocation.

In Kentucky, in the case of Brown’s Will,[290] it was declared that a cancelation of a portion of the devises, the testator’s signature being left untouched, did not affect the residue of the dispositions, which remained unaltered, the testator’s intention not to revoke them being clearly established.

CHAPTER VII.

In regard to personalty, (in an especial manner) the law of the place of the testator’s domicile governs in the distribution thereof, and will govern in the interpretation of wills, unless it is manifest the testator had the laws of some other country in his own view. This is usually expressed by the legal formula, that, with regard to personal property, the lex domicilii governs.[291] The law on this subject has never been more clearly expressed, or better summarized, than by the Lord Chancellor, in the case of Enohin v. Wylie.[292] His lordship there says: “I hold it to be now put beyond the possibility of a question, that the administration of the personal estate of a deceased person belongs to the court of the country where the deceased was domiciled at his death. All questions of testacy or intestacy belong to the judge of the domicile. It is the right and duty of that judge to constitute the personal representative of the deceased. To the courts of the domicile belong the interpretation and construction of the will of the testator. To determine who are the next of kin, or heirs of the personal estate of the testator, is the prerogative of the judge of the domicile. In short, the court of the domicile is the forum concursus to which the legatees under the will of a testator,[293] or the parties entitled to the distribution of the estate of an intestate, are required to resort.”

As a will is governed in its interpretation according to the law of the place where the testator had his domicile, therefore, if a testator, born and domiciled in England during his whole life, should, by his will, give his personal estate to his heir-at-law, that the descriptio personæ would have reference to, and be governed by, the import of the terms in the sense of the laws of England.[294] The import of them might be very different if the testator were born or domiciled in France, Pennsylvania, or Massachusetts.

To ascertain what the testator means, we must first ascertain what was his domicile, and whether he had reference to the laws of that place or the laws of any foreign country.[295]

The law of the domicile governs as to the proper mode of execution and attestation of wills of personal property; hence it is accepted as a rule of universal application, that a will of personal property, duly admitted to probate where a person has his domicile, is conclusive on all other courts, and is sufficient to pass personal property, wherever situated.[296]

It has been a subject of discussion, whether a will, made by a person according to the law of his domicile at the time when made, will be operative if he subsequently changes his domicile, and dies in his new domicile. This is a question of grave importance, and one on which there is a serious conflict of authority. The question is then presented, as to what law should govern, whether the law of the domicile at the time the will was made, or the law of the domicile at the time of decease.

This question arose in New York, in a case which passed through all the subordinate courts, and was finally determined by its highest court, after very thorough and learned examination. It was the case of Moultrie v. Hunt.[297]

The testator, Benjamin F. Hunt, resided at Charleston, and there made his will, in August, 1849, conformable to the laws of South Carolina. He subsequently removed to New York, where he established his domicile, and where he died. His will was attested, at his request, by three witnesses; but Mr. Hunt did not state to the witnesses the nature of the paper which he requested them to attest, and, therefore, omitted to comply with one of the requisites of the statute in New York, which requires a publication of the will, to be a valid execution thereof.

The Surrogate, when the case came before him, decided to admit the will to probate, and made a decree accordingly. This decree was affirmed by the Supreme Court, whence it was taken on appeal to the Court of Appeals, and it was there reversed, a very able judge (Denio) writing the opinion of the court. His opinion was very able and elaborate, and a thorough examination was made of all the authorities. He holds that a will cannot operate so as to confer rights of property until the death of the testator, until which event it is, in its essence, ambulatory and revocable. Therefore, it is the law in force at the death of the testator that should govern as to the due execution of a will and the capacity of a testator. He illustrated this in the case of the legislature making laws that would have the effect of invalidating wills already made, and shows that where a will was witnessed by but two witnesses, three being required at the time it was made, that it was subsequently validated by a law in force at the decease of the testator, allowing two witnesses to attest a will. He quotes from Story[298] to show that it is the law of the domicile at the time of death that should govern as to the proper execution, and he approves that doctrine, and holds it applicable to this case; which, it was held, should be governed by the law of New York, the law of the domicile of the testator at the time of his death, and therefore Mr. Hunt was considered as dying intestate in respect to personal property in New York. Judge Redfield, in his work on wills, approves of this doctrine,[299] and the same point has been decided in Missouri.[300]

The question, however, is not free from doubt, as very able jurists differ on it. As far as New York is concerned, it has settled the law there.

The case of the will of General Kosciusko, before the Supreme Court of the United States, in December, 1852, was in many respects the most notable and interesting case on this subject ever examined. In that case, it was necessary to examine, carefully and strictly, the law of wills as affected by domicile, and the manner of acquiring a domicile, and the mode of proving it. This case, besides its importance in a legal point of view, is of much public interest, as bringing up some memorable incidents connected with our revolutionary struggle and the eminent personages who participated in that struggle. It is found in the case of Ennis v. Smith,[301] and we will be justified in stating the facts somewhat in detail.

Kosciusko made four wills, one in the United States in 1798, another in Paris in 1806, the third and fourth in Switzerland, whilst sojourning there during the years 1816 and 1817. In his third will there was a revocation clause, canceling the first and second wills, in these words:

“Je revoque tous les testaments et codiciles que J’ai pu faire avant le présent auquel seul Je m’arrète comme contenant mes dernierès volantes.”

The object of the suit in the Supreme Court was as to the disposition of a fund belonging to Kosciusko in the United States, which, it was claimed, was undisposed of by his will, and to which the descendants of his sisters laid claim if he died intestate as to this property in the United States. The origin of this fund is full of interest. Kosciusko came here in 1776, entered our army as a volunteer in the Engineers, participated in all the struggles of our revolutionary war, and retired at its close with the rank of Brigadier General, poorer than when he came, and actually a creditor of our government for his military pay. During his absence in Europe, participating in the heroic struggle of his native land, he became entitled, under a military certificate, to the sum of $12,280.54, and not being able to receive it then, Congress passed a law in 1799 giving him interest from the 1st of January, 1793, to 31st December, 1797. When the money was paid it was invested in American stocks, and placed under the care of Jefferson. By judicious care and management the fund increased to the sum of $17,159.63, which was the subject of the suit in 1852. Before his departure from the country, in 1798, he made his will in his own handwriting, directing this fund to be laid out in the purchase of young negroes, who were to be educated and emancipated. In regard to this, he wrote to Jefferson, September 15th, 1817, as follows:

“We all grow old, and for that reason, my dear and respectable friend, I ask you, as you have full power to do, to arrange it in such a manner, that after the death of our worthy friend, Mr. Barnes, some one as honest as himself may take his place, so that I may receive the interest of my money punctually; of which money after my death, you know the fixed destination. As for the present, do what you think best.”

As the will of 1816 revoked the two previous wills, the disposition of the fund became canceled.

But in the will of 1817, by the second clause, he provided: “Je léque tous mes effets, ma voiture, et mon cheval y comprise à Madame et à Monsieur Zavier Zeltner, les hommes ce dessus.” It was on this clause the dispute arose; because it was claimed that by the words “mes effets,” the property in the United States passed, that it was a residuary devise, and that all went to the two persons named. On the other hand, it was claimed, that as Kosciusko, having been domiciled for fifteen years in France, and was only temporarily sojourning in Switzerland, that the law of France should control, and that the proper interpretation of such a phrase was that it referred to property as belonging at the time and which was attached to his person, and that the subsequent words restricted its meaning, and prevented it having a general signification. It was held that as to this property in the United States Kosciusko died intestate; and that, on the principle that personal property, wherever it may be, is to be distributed, in case of intestacy, according to the law of the domicile of the intestate, that the disposition of this property should be governed by the law of France, the proper domicile of Kosciusko. There was some difficulty to ascertain the domicile, but it was shown that he did not leave Poland compulsorily, which would be an important consideration in determining his intent; but he left voluntarily to obtain a civil status in France, which he conscientiously thought he could not enjoy in Poland whilst it continued under a foreign dominion.

With regard to real estate, a different rule prevails. It would not comport with the dignity or independence of one country to allow real property, which by its nature is fixed and immovable, to be controlled and affected by foreign laws. Hence it is the law of the place where the real estate is situated that governs in its distribution, and as to the proper execution of a will devising it. This is expressed by the formula that the lex locus rei sitæ governs. Thus, a devise of lands in England, though made abroad, must be executed pursuant to the English statute. Thus, where C made his will abroad, devising lands in England, but the same was executed in the presence of two witnesses, (three being necessary, at the time of its execution, to devise lands in England) in accordance with the law where he was domiciled, it was held that the will must be void as to lands in England, which lands can only pass by such a will as the laws of England require, and that the lex rei sitæ should govern.[302]

And if a testator, by his will, direct personal property to be invested, in another State, in certain trusts of real estate there lawful, but not lawful by the law of the State where the testator is domiciled, the trusts will be declared void.

This was the case where a testator, a resident of the State of New York at the time of his death, who, by his will, directed his personal property and the proceeds of his real estate there situated to be invested in real estate in the State of Ohio, upon trusts which were invalid by the law of New York, it was held that the devise in trust was invalid, as it was inconsistent with the law of the testator’s domicile.[303]

Jarman[304] considers that a will of realty is construed according to the law of the country where the land is situated; but Story,[305] Greenleaf,[306] and others are of opinion that this doctrine of the lex rei sitæ does not apply to the construction, as distinguished from the execution, of wills. There are several American authorities on either side, the balance, however, being in favor of the law as stated by Jarman.

A will has always been presumed, in England, to speak only from the death of the testator as to personalty, but before 1838, from its date as to realty. By 1 Vict., Ch. 26, devises and bequests were to be from death of the testator, unless a contrary intention appears. The rules thus settled by this act have long been adopted in most of our States.[307] A will is presumed in the following States to speak only from the testator’s death, as regards the subject-matter (as distinguished from the objects) of the testator’s bounty: California, Maryland, Missouri, New York, and Pennsylvania.

In Virginia, wills of land speak from the making of the instrument, unless it discloses an intention to the contrary.[308] It is so in Massachusetts, New Hampshire, Vermont, Maine, Indiana, Illinois, North Carolina, Connecticut, and Kentucky; though a testator may, in these States, convey by his will any after-acquired land, provided he declares his intention to that effect. The construction, however, on these statutes virtually raises a presumption that wills speak only from the death of the testator, if there is nothing in the context to the contrary.[309]

It seems the better opinion, that the law of the domicile of the testator will govern as to what shall be regarded as personal estate, and what real. Thus, in Kentucky, shares in the capital stock of railroad companies are considered as real property,[310] and, according to this rule, a will made by a person domiciled there must be executed as a will of real estate, to convey such shares.

And the law of the place of domicile must govern as to what ought to be regarded as testamentary capacity.

Thus, in England, administration was granted upon the probate of the will of a married woman, domiciled in Spain, she being also a native of that country, it appearing that by the law of that country a feme covert may dispose of her property by will, with certain limitations, the same as a feme sole.[311]

CHAPTER VIII.

This intention is to be ascertained from the whole will taken together, from a full view of everything contained within “the four corners of the instrument,”[312] and not from the language of any particular provision when taken by itself; and, for the purpose of construction, a will and codicil may be considered together, and construed as different parts of the same instrument.[313] But where several parts are absolutely irreconcilable, the latter must prevail.[314]

The rule as to intention, governing in all cases, is somewhat liable to misconception, because it is susceptible of, and may be taken in, two senses.

For by intention, it may be inferred that we are to seek for some probable purpose as existing in the testator’s mind at the time; or may seek to extract that intention from the meaning of the language which he has used. It is in this latter sense alone in which construction is employed. The will must be in writing, and the only question is, what is the meaning of the words used in that writing? And to ascertain this, every part of it must be considered, with the help of those surrounding circumstances which are admissible in evidence to explain the words, and to put the court as nearly as possible in the situation of the writer.

This was well expressed in Cole v. Rawlinson,[315] by Lord Holt when he said: “The intent of a testator will not do, unless there be sufficient words in the will to manifest that intent; neither is the intent to be collected from the circumstances of his estate, and other matters collateral and foreign to the will, but from the words and tenor of the will itself.” The rule was well illustrated in the case of Doe v. Dring,[316] where a testator, intending, no doubt, to dispose of all his property for the benefit of his family, used these words: “All and singular my effects of what nature and kind soever.” Lord Ellenborough said, that if he were asked his private opinion as to what the testator really meant when he used these words, he would reply, that he must be supposed to have meant that which his duty prescribed to him, to convey all his property for the maintenance of his family; but as a judge, he was not at liberty to collect his meaning from matters dehors, but only from expressions used on the face of the will, and that the expression “effects” had always a meaning, in the absence of anything in the context, which necessarily excluded real estate. However, if the context shows that by the expression, “all my personal estates,” the testator meant to include real property, it will be so held by reason of the clear intention manifested on the face of the will.[317]

An introductory clause expressing a testator’s desire to dispose of all the property he should “leave behind him” may be referred to, to construe the will as passing all lands belonging to the testator at the time of his death.[318]

It is one of the most troublesome questions in law, as to how far parol evidence can be admitted to ascertain the intention of a testator. The principle was early established, that parol evidence should not be admitted to vary, contradict, or enlarge the terms of a will, and this is still rigidly adhered to. This was well established in what is known as Lord Cheney’s Case,[319] where it is said that “otherwise it were great inconvenience that not any may know by the written words of the will what construction to make, if it might be controlled by collateral averment, out of the will.”

Chancellor Kent, in Mann v. Mann,[320] examined this subject with much industry and learning, and declared the result to be: that from Cheney’s Case down to this day, it has been a well-settled rule that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specific cases: 1st. Where there is a latent ambiguity arising dehors the will, as to the person or subject meant to be described; and 2d. To rebut a resulting trust.

What is a latent ambiguity is thus described in the quaint but expressive language of Lord Bacon: “Latens is that which seemeth certain, and without ambiguity for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity; as, if I grant my manor of S to J F and his heirs, here appeareth no ambiguity at all; but if the truth be that I have the manors both of North S and South S, this ambiguity is matter in fact, and, therefore, it shall be holpen by averment, whether of them was that the party intend should pass.”

A patent ambiguity is one that is apparent on the face of the will, and is only to be remedied, by construction of the language, if possible. As, for example, if the devise is to one of the sons of J S, who has several sons, such an uncertainty in the description of the devisee cannot be explained by parol proof.[321]

As a general rule, courts do not admit parol evidence in cases of patent ambiguity; but on this head there is a difference of decision in this country. We have no uniform rule throughout the United States, either by statute or construction, as to the extent to which parol testamentary evidence is admissible. In some States, the English rules will be followed in the main, which is to admit no extrinsic evidence except to explain a latent ambiguity. But in many of the States, undoubtedly, extrinsic evidence of the testator’s circumstances, as distinguished from his intention, will be admitted in aid of the construction of any expression left ambiguous by the context.[322] In New York, the courts adhere to the English rule, and admit no extrinsic evidence, except to explain a latent ambiguity.[323] In Maryland, the strict rules of construction prevail, and no parol evidence is admitted except as in England.[324] The same is the rule in Ohio.[325]

It seems to be a universally received doctrine in the American courts, that extrinsic evidence of the declarations of the testator, made at the time, before or after the execution of the will, cannot be received to show the intention of the testator by the use of particular words therein, or by its general scope; as, that by the use of the word “children” he meant to include step-children;[326] or that a bequest to the parent was intended for the children of such parent, who was known by the testator to have died; or that the term “children” was intended to include illegitimate children;[327] or in any sense to vary the express provisions of the will, or to show in what sense he used a well-settled term of law.[328] Nor are the declarations of the testator admissible to show the existence of a will at the time they were made.[329] But, in a case in Michigan, it was held, where, after the death of the testator, a will twenty-five years old was discovered in a barrel among waste papers, and either torn or worn into several pieces, which were scattered loose among the papers in the barrel, that the declarations of the testator, made after the date of the will, were admissible, not as separate and independent evidence of revocation, but as tending to explain whether the instrument was thus torn accidentally, or with intent to revoke.[330] The code of California has settled this question for that State; it excludes all declarations of the testator’s intention.[331]

To ascertain the intention of the testator from the language of the instrument, certain rules of construction have been established, which have obtained the acquiescence and authority of the courts. If technical words are used by the testator, he will be presumed to have employed them in their legal sense, unless the context contain a clear indication to the contrary.[332] Courts, therefore, have no right or power to say that the testator did not understand the meaning of the words he has used, or to put a construction upon them different from what has been long received, or what is affixed to them by the law.[333] There can be no place for construction, for the discovery of the testator’s intention, when he has used words of an unequivocal, definite sense in law, and, however it may frustrate any presumed worthy designs, the import of the terms as used must prevail.[334]

In Hicks v. Salitt,[335] the court said: “When a testator uses a word which has a well-known, ordinary acceptation, it must appear very certain that he has said, on the face of the will, that he uses it in another sense, before the ordinary sense can be interfered with.... In order to alter the meaning of a word, it must appear, not that the testator might have meant it in a different sense, but that he must have meant it in a different sense.”

The right of every testator to use words in a sense different from the technical legal sense, provided it is apparent, is well established and acknowledged. Thus, in deference to the context, the word “money” has been held to pass stock in the funds;[336] though its technical meaning, according to Coke, only implies gold and silver, or the lawful circulating medium of a country.[337]

This technical meaning of the word was applied in Mann v. Mann,[338] where a testator bequeathed “all the rest, residue, and remainder of the moneys belonging to his estate at the time of his decease,” which was held not to comprehend promissory notes, bonds and mortgages, and other securities, there being nothing in the will itself to show that the testator intended to use the word in that extended sense. And the words “nephews and nieces” have been held to include great-nephews and great-nieces, different from the import of these terms as settled in law;[339] and the word “family” has been held to include a husband.[340]

In the case of Hussey v. Berkeley,[341] Lord Nottingham, upon the question whether the testatrix intended to include great-grandchildren under the term grandchildren, considered the fact that she had, in another part of the will, called a great-grandchild her granddaughter, as conclusive evidence of her intention to include such great-granddaughter in the residuary clause of the will, under the general description of her grandchildren.

The court is bound to give effect to every word of a will without change or rejection, provided an effect can be given to it not inconsistent with the general intent of the whole will taken together.[342] Thus, if one devises land to A B in fee, and afterwards in the same will devises the same land to C D, for life, both parts of the will shall stand; and in the construction of the law, the devise to C D shall be first.[343] But when it is impossible to form one consistent whole, the separate parts being absolutely irreconcilable, the latter will prevail.[344] Thus, where the testator, by one clause of his will, bequeathed a slave to his son, remainder to his issue, remainder over; and by a subsequent clause bequeathed the same slave to his daughter, with like limitations, it was held that the clauses were inconsistent, and the last revoking the first, that the daughter was entitled to the legacy.[345]

If a testator’s intention cannot operate to its full extent, it shall take effect as far as possible.[346] And where a will contains different trusts, some of which are valid, and others void or unauthorized by law; or where there are distinct and independent provisions as to different portions of the testator’s property, or different estates or interests in the same portions of the property are created, some of which provisions, estates, or interests are valid, and others are invalid, the valid trusts, provisions, estates, or interests created by the will will be preserved, unless those which are valid and those which are invalid are so dependent upon each other that they cannot be separated without defeating the general intent of the testator.[347]

Words, in general, are to be taken in the ordinary and grammatical sense, unless a clear intention to use them in another can be collected.[348] Thus, in Young v. Robertson,[349] it is laid down: The primary duty of a court of construction, in the interpretation of wills, is to give to each word employed, if it can with propriety receive it, the natural ordinary meaning which it has in the vocabulary of ordinary life, and not to give words employed in that vocabulary an artificial, a secondary, and a technical meaning. Thus, a testator, in a clause of his will, provided that the share of the estate of any of his children dying without issue should be equally divided among the survivors of his children or grandchildren, and it was held that a step-daughter was not a surviving child of the testator, within the intent and meaning of this clause of the will, so as to entitle her to a portion of the shares of one of the testator’s daughters, who died without leaving issue, even though this step-daughter was acknowledged to be of the family, and treated there as a child.[350]

And the word “children” does not, ordinarily and properly speaking, comprehend grandchildren or issue generally; these being included in that term is only permitted in two cases, viz., from necessity which occurs where the will would remain inoperative unless the sense of the word “children” were extended beyond its natural import, and where the testator has clearly shown by other words that he did not intend to use the term “children” in its proper, actual meaning, but in a more extensive sense. In Osgood v. Lovering,[351] the word was held to include grandchildren, it being apparent from the context, that this was the meaning given by the testator.[352]

This term imports legitimate children only;[353] but if it is notorious that a testator had no such legitimate children, but had others who went by reputation, and were acknowledged as his children, these can take under this term.[354]

In Lord Woodhouslee v. Dalrymple,[355] a legacy was given “to the children of the late C K, who shall be living at my decease”; C K being dead at the date of the will leaving illegitimate children, (of whom three were living at the testator’s death) and not having had at the date of the will, nor having ever had, any legitimate children, the three illegitimate children were held to be entitled.

The word “issue” is a term of more general signification than children; it includes not only children, but all lineal descendants, however remote, for successive generations. It has been called by Lord Holt a nomen collectivum;[356] but this word has frequently been construed to signify children, where it was so apparent from the context.[357]

The phrase, “dying without issue,” in wills, for a long time occasioned much obscurity, and was a fruitful source of litigation. Thus, if an executory devise were limited to take effect on a dying without heirs, or on a failure of issue, or “without leaving issue,” or “without issue,” the limitation was held to be void, because the contingency was too remote, as these phrases being interpreted to mean an indefinite failure of issue, the vesting of the estate would thus be suspended beyond the period allowed by law. But other words used in the will might control this construction, as to show that the testator intended to limit the vesting of the estate to issue living at the time of the death of the first taker. This contrary intent would be inferred by the use of the words “living,” or “leaving issue behind,” or “without children.” Unless such qualifying words, however, were used, the words “dying without issue” were construed as meaning an indefinite failure of issue.[358]

The statute law of New York, and many of the States, has settled the construction of this term, as it is provided under these statutes that it shall be construed to mean heirs or issue living at the death of the person named as ancestor.[359]

Gifts and devises are sometimes made to a “family,” and the decisions have given to the word the same construction as “kindred,” or “relations.”[360]

In Robinson v. Waddelon,[361] a testator gave all the residue of his effects to be equally divided between his two daughters and their husbands and families; the court rejected the words “husbands and families,” and held that the two daughters took the residue equally and absolutely as tenants in common.

Roper has the following observations on devises and bequests to a family: “The word family, when applied to personal property, is synonymous with “kindred” or “relations.” If it be asked, of what family is A, the question will be answered by being informed from what person he is descended, and whoever is related by blood to that stock is related to, and of, the family of A. This being the ordinary acceptation of the word, it may nevertheless be confined to particular relations by the context of wills; or the term may be enlarged by it, so that the expression may in some cases mean children, or next of kin, and in others may even include relations by marriage.”[362]

Personal chattels are not unfrequently described by reference to locality, as where a testator bequeaths the “household goods,” “things,” “property,” or “effects” which are in or about a house. These words, it seems, in general, will not pass cash, bank notes, bonds, notes, or other choses in action being in the house.[363]

In Woolcomb v. Woolcomb,[364] a testator bequeathed to his wife all his household goods, and other goods, plate, and stock, within doors and without, and bequeathed the residue of his estate to J S. It was held that the ready money and bonds did not pass by the word goods, for then the bequest of the residue would be void.

Bequests of “chattels and effects” are clearly adequate to pass the whole personal estate, yet where these words are collocated with household goods, they may be, and frequently are, restrained to articles ejusdem generis.[365]

A testator, after several legacies of bank stock and other stock and money, concluded his will as follows: “The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture, looking-glasses, crockery, etc., I give to my two daughters, etc.; these, with all money of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, etc.” The testator had several shares of bank stock and other stock, not specifically bequeathed. It was held that this bank stock and other stock did not pass under the above bequest.[366]

The courts of equity, even in England, do not seem disposed to apply the rule ejusdem generis with so much strictness as formerly. In the late case of Swinfen v. Swinfen,[367] it was decided that in a bequest particularized by one word, followed by general words, the latter was not to be restricted to things ejusdem generis; as where the bequest was, “all my estate at S or thereto adjoining, also all furniture, or other moveable goods here,” it was held that the live-stock and implements of husbandry in and about the premises passed by the bequest. It was also held that money in the house at the time of the testator’s death passed to the legatee.

In Brown v. Cogswell,[368] where the bequest was of “all my household furniture, wearing apparel, and all the rest and residue of personal property, saving and excepting one feather bed,” it was held to carry the entire residuum of personal property. A bequest of furniture in a particular house (except plate) will include plated articles in use in the house, the word “plate” meaning solid plate only. Such a bequest embraces only the articles permanently in use in the house.[369]

Words, however, in a will, which if allowed to stand would produce repugnant and inconsistent results, may be rejected.[370] Others may be supplied where there is no doubt in regard to the words intended, and others may be transposed and changed to carry out the sense and intention of the testator.[371]

The will must be most favorably and benignly expounded to pursue and effectuate, if possible, the intention of the testator,[372] and of two modes of construction, that is to be preferred which will prevent a total intestacy.[373] The strict rules of construction adopted in England, when strictly and unflinchingly applied, had often the effect of invalidating wills; but there has, of late, been evinced a tendency to relax this stringency of construction, and the proportion of wills and bequests which have been declared void for uncertainty has been constantly diminishing; and, at present, it is becoming more rare, unless through some fatal accident or miscarriage in the preparation of the instrument. The same tendency is observable in the decisions of the American courts.

Construction with the aid of precedents and analogies is only resorted to to ascertain the intention of a testator; all construction is subordinate to that single purpose; and analogy and precedent should have no further influence when they lead one side of the intention. They should only be used as our assistants to this end.

It will be found useful and appropriate, at the conclusion of this chapter, to give the seven propositions of Sir James Wigram, in his approved and reliable work respecting the admission of extrinsic evidence in aid of the interpretation of wills. He divided the subject into seven propositions, as follows:

Proposition I.—A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.

Proposition II.—Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words, so interpreted, are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they maybe capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.

Proposition III.—Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circumstances, they are capable.

Proposition IV.—Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, or to inform the court of the proper meaning of the words.

Proposition V.—For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator’s words.

Proposition VI.—Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases in Proposition VII) will be void for uncertainty.

Proposition VII.—Notwithstanding the rule of law which makes a will void for uncertainty where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, courts of law, in certain special cases, admit extrinsic evidence of intention, to make certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: Where the object of a testator’s bounty, or the subject of disposition, (i. e., the person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator.