1851. DOE d. BLAKISTON V. or children that might be born in his life-time. We are of opinion, therefore, that (notwithstanding the defect of expression in this will) the children born before the testator's death are virtually included in the provision so anxiously made by a parent for his posthumous HASLEWOOD. children; and that, upon the true construction of this will, the plaintiffs Edward and John (a) will be entitled. (from the testator's manifest intent) to take an estate in fee in the premises, at their respective ages of one-andtwenty; and that, in the mean time, the plaintiff Eleanor, their mother, is entitled to hold the said premises, subject to the trust of the said will, for their education and maintenance." The court there considered that the language of the will sufficiently indicated an intention on the testator's part to provide for all his children, whether born before or after his decease, who should attain twenty-one, before his nephew should take any thing under the will. But here, the court cannot, without obscuring the second clause of the will, which is now free from doubt, and making a new one, deprive the nephew of the estate which the first part of the will vests in him. The general principle which governs the courts in the construction of wills, will scarcely be disputed. In Bootle v. Blundell (b), Lord Eldon, referring to Stephenson v. Heathcote (c), observes: "The Lord Keeper (Henley) says, that, in the construction of wills, the court is bound to find out the intention of the testator, if it is possible; but then this must be collected from the words, not from circumstances out of the will; and upon general principles and established rules, not by a liberal power of conjecture upon the supposition of (a) As the case states-"infants of tender years, who were born after the making of the will, in the testator's life-time, and who are still living, and who are not provided for, unless they take by (b) 19 Ves. 494b. 521. 1851. DOE d. BLAKISTON v. what a man would do in the like circumstances." In Driver d. Frank v. Frank (a), Le Blanc, J., says: Supposing we could be satisfied that it was the intention of the testatrix to keep the two estates separate, and HASLEWOOD. that they should never be united in the same son of B. Frank, of which I cannot satisfy myself, still I can find no words in this will sufficient to carry such intent into effect: for, whatever be the intent, if there are not words in the will to warrant it, express or implied, it cannot have effect." And this passage was adopted by Burrough, J., when the same case came before the Exchequer Chamber, on error. (b) (b) In Boreham v. Bignall (c), Sir J. Wigram, V. C., says: "In considering the construction of the will, I am compelled to consider it, not only with reference to the events which actually happened, but to those which might have happened, and are expressly provided for by the will. To this extent, at least, I must go; and, if the construction which would give the annuity to the widow of James, is incompatible with the construction which such other events require, I must, however satisfied I may be that I am disappointing the real intention of the testator by doing so, hold that the case of James's second marriage is a casus omissus from the will, and consequently that the widow of James has no interest in the annuity." Again, in Bird v. Luckie (d), Knight Bruce, V. C., says: "The testator is permitted to be capricious, improvident, and moreover at liberty to conceal the causes and motives by which he has been actuated in his disposition. Many testamentary provisions may seem to the world arbitrary, capricious, and eccentric, for which the testator, if he could be heard, might be able to account satisfactorily: and this (a)73 M. & Selw. 25. 48. (c) 14 Jurist, 265. (d) 14 Jurist, 1015. is one among the reasons which may be and have been judicially given against attributing to men, readily, mistakes in the language that they use in their wills,against departing from the proper sense of their words, without something more than conjecture, without something more than the opinion of the interpreter, however wise he may be, that the language, construed according to the rules of idiom, would make an eccentric or inconvenient provision; reasons which may not always have been adhered to, which may possibly be at variance with some particular rule of construction, now of settled application, in some particular cases, but which, I apprehend, are generally true and sound." The first clause of the will, giving a fee to Gilbert Robson, being in itself clear and unambiguous, the second clause, if it be even doubtful, cannot have the effect of cutting down or derogating from that clear and positive devise. The rule is so laid down by Sir E. Sugden, in his treatise on the Law of Real Property, p. 214, and by the still higher authority of the House of Lords, in Thornhill v. Hall (a), where the Lord Chancellor (Lord Brougham) says: "I hold it to be a rule that admits of no exception, in the construction of written instruments, that, where one interest is given, where one estate is conveyed, where one benefit is bestowed, in one part of an instrument, by terms clear, unambiguous, liable to no doubt, clouded by no obscurity -by terms upon which, if they stood alone, no man breathing, be he lawyer, or be he layman, could entertain a doubt; in order to reverse that opinion, to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a doubt; it is not sufficient that you should shew a possibility; it is not even (a) 2 Clark & Fin. 22. 36. 1851. DOE d. BLAKISTON v. HASLEWOOD. 1851. DOE d. BLAKISTON v. sufficient that you should deal in probabilities; but you must shew something in another part of that instrument which is as decisive the one way as the other terms were decisive the other way; and that the interest first given HASLEWOOD. cannot be taken away, either by tacitum, or by dubium, or by possibile, or even by probabile, but that it must be taken away, and can only be taken away, by expressum et certum." 2. Upon the second question,-as to which the court pronounced no opinion, the following cases were cited,Acherley v. Vernon (a), Barnes v. Crowe (b), Hulme v. Heygate (c), Rowley v. Eyton (d), Doe d. Murch v. Marchant (e), Doe d. York v. Walker (f), and Goodtitle d. Woodhouse v. Meredith. (g) Malins, contrà. 1. It appears from the statements in the case, that the testator was newly married, and that, at the time of making his will, he imagined himself to be near his end. Taking the whole will together, it is quite evident that his primary intention was to provide for his wife, and then for his children, if he should have any; and that his nephew was but a secondary object of his bounty. The argument on the other side attributes to the testator an intention to provide for unborn issue, but to prefer his nephew before children who might be born in his life-time, and who therefore must naturally be expected to be nearer to his affections than those he had never seen,—than which it is difficult to conceive a proposition more monstrous and irrational. If there were an entire absence of authority upon the subject, the court would pause before it came to so improbable a conclusion. The case, however, of White v. Barber, which (a) 3 Bro. P. C. 85. 91. (b) 1 Ves. jun. 486. (c) 1 Meriv. 285. (d) 2 Meriv. 128. (e) 6 M. & G. 813., 7 Scott, N. R. 644. (f) 12 M. & W. 591. (g) 2 M. & Selw. 5. 1851. DOE d. BLAKISTON บ. has never yet been questioned, but which, on the contrary, has always been approved when cited, is expressly in favour of the construction contended for by the defendants; and the court will not now, without good ground, depart from it. It is referred to by all the most HASLEWOOD. approved text-writers,-in Jarman on Wills (a), and in Fearne on Contingent Remainders (b); and it is also relied on by Coleridge, J., in the judgment in Morrall v. Sutton. (c) Speaking of that case, that learned judge says: "The court thought that a father who took such anxious care for posthumous children as to make an express provision for them, could never intend to give them an estate in exclusion of, or to his nephews in preference to, any child or children that might be born in his life-time. They, therefore, not only supplied a devise, but framed it in a special manner to meet the supposed intent, which they gathered from the will, upon moral evidence, highly probable, but falling very far short of demonstration." [Williams, J. It was about the time that White v. Barber was decided, that the courts first held that marriage and the birth of a child operated a revocation of a will. Suppose at the time of the death of the testator there was one child born, and another in ventre sa mere, which would take? Surely the latter might say that he was the person mentioned by the testator. Would he take in exclusion of the elder child?] It is submitted that he would not. In Jaggard v. Jaggard (d), it was held, that, if a father gives a legacy to provide for a child in ventre sa mere, by the term of a "posthumous child," and he happen to survive its birth, it will still be considered a posthumous child within the meaning of the will." [Williams, J. Was the wife in (a) Vol. I., p. 475. (b) 10th edit., Vol. I., p. 513. (c) 1 Phillipps, 533. 551. (d) Prec. Chan. 177, cited in 2 Williams on Executors, 941-2. |