right of election, fuch right defcends to his heirs or executors. Vide ante § 25. Lord Hobart fays, if an act will work two Hob. R. 159. ways, the one by an intereft, the other by an authority or power, and the act be indifferent, the law will attribute it to the intereft, and not to the authority; and so it must be taken, for fictio cedit veritati. But where interest and authority meet, if the party declare clearly that the act fhall take effect from his authority, or power, there it fhall prevail against his intereft, for modus et conventio vincunt legem. In what Cafes are admitted. § 26. Since the ftatute of frauds, no averment can be made in contradiction to a written agreement: and, even in the cafe of an ambiguitas patens, that is, an ambiguity which appears upon the face of the inftrument, no averment is allowed. But, in the cafe of an ambiguitas latens, an averment fupported by parol evidence is admiffible. Hence Lord Bacon's maxim, 23. Ambi- Bacon's Tra. guitas verborum latens verificatione fuppletur; nam quod ex facto oritur ambiguum, verificatione facti tollitur. Thus, if a feoffment be made of the manor of S., and the feoffor has a manor called North S., and another called South S., parol evidence will be admitted to fhew, which manor was meant. § 27. Where the words of a deed are fo uncertain, that the intention of the parties cannot be discovered, the deed will have no effect. Thus, a gift to A. or 101. Videt Bro. R. 338. Where a Deed is un certain, it has no Effect. B., or to one of the children of 7. S., he having four, 2 And. R. is void for the uncertainty. 103. § 28. Lands Windfmore, v. Hobart, Hob. R. 313. Conftruction of Convey Cro. Eliz. 208. Leigh v. § 28. Lands were demised to Thomas Hobart, ha, bendum to the faid Thomas and to three others perfons fucceffive. It was resolved, that no one could take immediately, but Thomas Hobart, because he was the only party to the deed, and the reft were only named in the habendum; and that the others could not take by way of joint remainder on account of the word fucceffive, and that they could not take in fucceffion for the uncertainty who fhould take firft, and who fhould follow. § 29. It was formerly held, that conveyances to ances to Ufes, ufes fhould be conftrued like wills, that is, according to the intention of the parties, though not expreffed in the proper, legal, and technical words. In the cafe of Rigden v. Vallier, where the question was, whether in a covenant to stand feifed the words were to be con ftrued ftrictly, Lord Hardwicke faid-" It is objected "that there is no warrant to conftrue a deed to uses ઃઃ as to the limitations and words of it in a greater "latitude than a conveyance at common law; and if "conftrued in a different manner would caufe great "confufion, which I hold to be true in general, for "the ftatute joining the estate and the ufe together, "it becomes one entire conveyance, by force of the "ftatute, and the words are to be conftrued the fame. 1 Wilf. 301. 2 Vef. 252. 3 Atk. 734. way; but this is to be taken with some restriction, "As to the words of limitation in a deed, they are, "to be fure, to be conftrued in that manner, viz. in "the fame fenfe; but where they are words of regu"lation, or modification of the estate, and not words "of limitation, I think there is no harm in giving "them "them greater latitude in deeds on the ftatute of uses, "which are trufts at common law, than in feoffments, "which are ftrict conveyances at common law." § 30. If it fhould be established that conveyances to uses, which are now become the common affurances of the realm, were to be construed in the fame manner as wills, even with respect only to the words of regulation, or modification of the eftate, fuch a doctrine would in fome degree tend to introduce all that latitude and uncertainty, which now prevail in the conftruction of teftamentary difpofitions. Of this opinion was the late Mr. Booth, the most able conveyancer of the laft century, who fays in one of his opinions:-" If deeds of ufes must be governed by "the fame rules, as prevail with respect to wills, then "a limitation to a man's male defcendant, or male "children, may create an estate tail; and an abfolute "inheritance may pafs by a limitation to the use of "the grantee for ever; which will produce infinite "confufion." $ 31. Mr. Booth's opinion is fully confirmed by the late Lord Chief Juftice Willes and his brethren, in the Cafes and Opinions, v. 2. 279. 180. cafe of Tapner v. Marlott, where his Lordship fays;- Willes Rep. "As to what was infifted upon, that a conveyance to "ufes is to be conftrued as a will, and in a different "manner from other conveyances, we are all clearly "of a contrary opinion: for, fince the ftatute of "ufes, an ufe is turned into a legal eftate to all intents "and purposes. It must be conveyed exactly in the "fame manner, and by the fame words; and, if it 66 were 2 Bro. R.233. 765. 3 Term R. Conftruction of Declara Perne Cont. Rem. 218. "were otherwife, as moft conveyances are now made by way of ufe, endlefs confufion would enfue.” Lord Thurlow and Lord Kenyon have fully affented to this doctrine. § 32. Declarations of trufts are conftrued in the tions of Truft. fame manner as other conveyances, where an estate is finally limited by a deed, without any kind of reference to a further execution of the truft, by a conveyance directed to be made: for, in fuch cases, any occafional conveyance, that may at any time be required of the legal eftate from the trustees, may well be deemed a matter of form only; and not otherwife requifite than for the mere purpose of invefting the fubfifting trufts, whatever they may be, with their commensurate legal estates. Idem. Conftruction of Articles. S 33. But a declaration of truft, whofe effect is referred to another conveyance, directed to be made for its establishment, may reasonably be confidered as left to fome degree of modification, by that fupplemental part of the deed, viz. the conveyance to which the completion of the trufts is referred: and fuch conveyance may be directed to be made, fo as to effectuate the intentions of the perfon creating the truft, with lefs regard to the ftrict rules of conftruction, than in a case of a trust executed. § 34. With refpect to the conftruction of articles or agreements, it is different from that of regular conveyances: for articles are only confidered by courts of equity as preparing fomething to be after . Deed wards completed. And it is the constant rule to look upon them as merely the heads of the points agreed upon between the parties, and as minutes drawn by them to lay before counsel, in order to direct and guide them to carry the intent and fcheme of the parties into execution: and, when application is made to the Court of Chancery for that purpose, it will mould them in fuch manner as to comprehend what appears to be the manifeft intent and defign of the parties; not paying a nice adherence to the legal fenfe or operation of the words, which may be made use of in framing the articles. Collect. Jur. 2 Atk. 545. v. 2. 374. § 35. Having premised these general rules, we will Particular proceed to the expofition of the feveral parts of a deed Rules. in their order. Shep. Tou. 81. § 36. With respect to the parties, if several perfons Parties." join in a deed, fome of whom are capable of conveying or taking, and others incapable; it fhall enure and be conftrued as the deed of thofe only, who are capable of conveying, and to thofe only who are capable of taking: and the incapacity of fome of the parties, will not render it invalid as to those who are capable. § 37. Although a tenant for life can only grant his own life eftate; yet, if he is joined in the conveyance by the remainder-man or reverfioner, they may grant the whole inheritance. Thus, if a tenant for life, and the perfon in remainder or reverfion, join in a feoffment in fee, it will be good: for each paffes his own i Inft 42 a. 45 a. 6 Rep. 146. 1 Rep. 76 a. |