Lord Alvanley says, "If two parts of a will are totally irreconcileable, I know of no rule but by taking the subsequent words as an indication of a subsequent intention. The Court is in a dilemma, and cannot act at all, unless they do that." The same learned Judge, in Constantine v. Constantine (a), adheres to the opinion he had given on this point in Sims v. Doughty, and further lays down the principle that, where it is wholly doubtful in what manner a testator's meaning is to take effect, the will must be declared void for uncertainty. The present case falls within this principle, since it is impossible to say how the provisions of this will can be carried into execution. In Mohun v. Mohun (b), where the testator made a general bequest to all his grandchildren in one part of the will, and to his grandchildren and nieces in another, the will was declared void for uncertainty, and Sir Thomas Plumer observed, that "the Court could not insert or transpose words for the purpose of giving a meaning to instruments which had none." Now in the present case it is sought to transpose not merely words, but whole clauses, in order to give effect to an instrument which is, upon the face of it, unintelligible.

Mr. Bickersteth and Mr. Jacob, for parties interested in the dispositions made by the testator in the latter part of his will.

The case of Doe dem. Leicester v. Biggs (c) was decided by Sir James Mansfield upon the general rule that, where there is a repugnancy, the first words in a deed, and the last words in a will shall prevail; and that rule is recognised by Lord Eldon in Wykham v. Wykham. (d) The case of Coryton v. Helyar (e), before Lord Hardwicke, which

1833.

SHERRATT

ย.

BENTLEY.

1833.

SHERRATT

v.

BENTLEY.

which is noticed with approbation by Lord Eldon in Wykham v. Wykham, and which, since the date of Wykham v. Hykham, has been published by Mr. Cox, was also decided upon the ground of the preference which is to be given to the latter limitations in a will, when repugnant to a prior disposition. In that case Lord Hardwicke held, that an absolute term for ninety-nine years, given in a prior part of the will, was so cut down by a subsequent limitation, that it was not to be deemed an absolute term, but a term determinable on the death of the testator. As to Mohun v. Mohun (a), that case is perfectly distinguishable from the present; for there the thing given was as ambiguous as the persons intended to take, and there being complete uncertainty both in the subject and in the objects of the bequest, it was impossible for the Court to give any effect to the in

strument.

Mr. Tinney and Mr. G. Richards, for the Defendant Bentley.

Taking the whole will together, it appears to have been the general intention of this testator to give to his widow an absolute interest in the whole of his real and personal property. The power of appointment given to her in case she should die in his lifetime, however inoperative, and such a power might certainly be rendered nugatory by any subsequent disposition of the testator tends to confirm the testator's general intention in favour of his widow. Not only is the testator anxious that his widow should possess his whole property after his decease; but he even desires to transfer from himself to his wife the power of disposing of his property, in case she should die in his lifetime. That power of appointment furnishes a clue to explain

(a) 1 Swanst. 201.

the

the inconsistency between the prior and subsequent dispositions of the will; for the testator may well have intended that the pecuniary legacies, and the gift of the residue of his real and personal estate at the decease of his wife, should take effect only in the event of her decease in the lifetime of the testator, and without having made any appointment. The scheme of the will appears to be this:- that the testator meant to give the whole of his property to his widow, subject to the legacies previously given, in case she survived him; to give her a power of disposing of his property, even if she did not survive him; and in case she should not survive him, nor exercise the power he meant to give her, then to dispose of his property in favour of other persons. That construction would be consistent with the testator's general intention, and such particular provisions as are inconsistent with the general intention may be rejected: Boon v. Cornforth. (a) The words, "I further order and direct," after the absolute gift of all his property to his wife, shew that the subsequent provisions were subject to the previous disposition, and that there was no intention on the part of the testator to alter the disposition he had previously made, unless his wife should die before him without exercising the power of appointment. The word further implies a confirmation of the previous direction, and is inconsistent with the supposition of any change or fluctuation of intention.

66

The rule relied upon, that, in cases of repugnancy between the prior and latter parts of an instrument, the prior part of a deed and the latter part of a will is to prevail, has no foundation in reason, nor has it ever been acted upon in the case of a will, where the intention of the

1833.

SHERRATT

v.

BENTLEY.

(a) 2 Ves. sen. 277.

1833.

SHERRATT

v.

BENTLEY.

Dec. 21.

the testator could be collected by the application of more rational principles of construction. In Doe dem. Leicester v. Biggs (a), the Court, it is true, acted upon that rule, but with great reluctance; and because, as Sir James Mansfield observed, it was forced to put a construction upon the will in conformity with that rule, for want of a better reason. Wherever a reason can be found for reconciling clauses apparently inconsistent, the rule is disregarded. Thus in Doe dem. Cotton v. Stenlake (b), where the testator devised an estate to his daughter and her heirs during their lives, the latter words during their lives were rejected, though the daughter had three children living at the testator's death, and the testator might have intended "children" by the word "heirs." But two of these children only were living at the date of the will; and, as the afterborn child could not have taken as a joint tenant for life with the other two children, the Court decided that the prior part of the will must prevail. The reason, therefore, and not the order of the testator's expressions, is the true test by which his intentions are to be tried. So in Smith v. Pylus (c), the concluding words in a will were rejected as repugnant to the intention indicated by a previous disposition.

Mr. Treslove, for the Defendant Slater, the legatee of the 400%.

Mr. Bickersteth, in reply.

The MASTER of the ROLLS.

In this most inaccurate will it is impossible to give effect to every expression used by the testator, several

of

(a) 2 Taunt. 109.

(b) 12 East, 515.

(c) 9 Ves. 566.

of those expressions being necessarily inconsistent with each other. There are, however, two principles of construction upon which it appears to me that a Court may come to a conclusion without the necessity, which, if possible, is always to be avoided, of declaring the will void for uncertainty. First, if the general intention of the testator can be collected upon the whole will, particular terms used which are inconsistent with that intention may be rejected, as introduced by mistake or ignorance, on the part of the testator, as to the force of the words used; secondly, where the latter part of the will is inconsistent with a prior part, the latter part of the will must prevail.

The testator begins his will by directing that his just debts, and a legacy given to his sister by his father's will, should be paid. He then gives a sum of 400l. to Henrietta Slater for her life, and after her death to her lawful children when they shall severally attain the age of twenty-one years; and in case Henrietta Slater should die without leaving lawful issue, he then gives the same sum of 400l. to his wife Margaret Harrison, to dispose of the same as she shall think proper. He next proceeds to give the whole of his real and personal estate whatsoever, and wheresoever, and of what nature or kind soever, unto his said wife, her heirs, executors, administrators, and assigns for ever; and then directs that the legatees before mentioned, by whom must be intended Henrietta Slater and her children, shall not be entitled to the whole or any part of the legacies until the full term of twelve months after the death of his wife.

The will, thus far, therefore, is not altogether consistent. It cannot be consistent that the wife, her heirs, executors, administrators, and assigns, shall take

the

1833.

SHERRATT

V.

BENTLEY.