the words "such issue" would seem in strict construction to apply *exclusively to the issue living at the death of the devisee or legatee. But here, also, a liberal construction [has been] adopted, (k) by considering the word "issue" to be used as nomen collectivum, namely, as including every generation of issue, and not merely as designating the particular individual or individuals living at the death of the legatee; so that the existence of any person belonging to the same line of issue at the death of the testator will suffice to prevent the lapse. Enactment does not apply Of course the application of both these sections is excluded where the devise in tail or the gift to the testator's child or issue is expressly made contingent on the event of the devisee or legatee surviving the testator; for in such a case to let in the heir in tail under section 32 would be something more than substitution: it would be to give the property to the heir in tail in an event upon which the testator has not devised it to the ancestor; and in such a case to hold the child or other descendant of the testator to be entitled under section 33, would be in direct oppo- . sition to the language of the will. Nor, it is conceived, does the statute touch the case of a gift to one of several persons as joint tenants; for as the share of any object dying in the testator's lifetime would survive to the other or others, such event occasions no "lapse,' to prevent which is the avowed object of both the clauses under consideration. The same reasoning applies to a gift to a fluctuating class of objects who are not ascertainable until the death of the testator, though made tenants in common. Thus, suppose a testator to bequeath all his personal estate to his children simply in equal shares, the entire property will, as before the statute, belong to the children who survive the testator, without regard to the fact of any child having, subsequently to the date of his will, died in the testator's lifetime leaving issue who survive him. () As gifts to the testator's children as a class are of frequent occurrence, their exclusion from this provision of the statute will greatly narrow its practical operation. Under section 33, issue of child dying in testator's lifetime not substituted. The reader will perceive that section 33 does not substitute the surviving issue for the original devisee or legatee; but makes the gift to the latter take effect, notwithstanding his death in the testator's lifetime, in the same manner as if his death had happened immediately after that of the testator, [and (k) In re Parker, 1 Sw. & Tr. 523, 6 Jur. (N. S.) 354. 392. But see Sugd. R. P. S. (1) Olney v. Bates, 3 Drew. 319; Browne v. Hammond, Johns. 210. whether it happened be*fore (m) or after (n) the date of the will, though not if it happened before the act came into operation.] (0) The subject of gift, therefore, will, to all intents and purposes, constitute the disposable property of the deceased donee, and as such [will either devolve on his representatives, (p) or] follow the dispositions of his will so far as that will, according as it may be regulated by the new or the old law, is capable of disposing and does dispose of after-acquired property. (1) Hence occurs this rather novel result, that it cannot be predicted of any will of a deceased person, whose parent or any more remote ancestor is living, what may be the extent of property which it will eventually comprise, and no final distribution can be made pending this possibility of accession. [The effect of the section is to prolong the original testator's life by a fiction for a particular purpose; that purpose is to give effect to the will in which the gift which would otherwise lapse occurs, and it only points out the mode in which that effect is to be given. Thus the subject of gift devolves with any obligation to which, under that will, it would have been subject in the hands of the deceased donee if he had actually survived; as, an obligation to compensate other legatees under the same will, disappointed by his assertion of rights that defeat their legacies. (r) But the fiction does not prolong the life generally for other purposes. Thus, an agreement to settle property which should come to the deceased donee (testator's daughter) "during coverture,” was held not to include property which had so come to her only by this fiction. (8) And if the deceased donee was a married woman, whose husband also died before the testator, her will made during coverture would not, it should seem, by virtue of such fictitious prolongation of life, acquire any validity which did not otherwise belong to it. (t) (m) Mower v. Orr, 7 Hare 473; Winter v. Winter, 5 Hare 306; Wisden v. Wisden, 2 Sm. & Gif. 396; Barkworth v. Young, 4 Drew. 1. (n) Johnson v. Johnson, 3 Hare 157; Skinner v. Ogle, 4 No. Cas. 74, 9 Jur. 432. (q) Mower v. Orr, Johnson v. Johnson, supra. (r) Pickersgill v. Rodger, 5 Ch. D. 163; see further as to this case, post ch. XIV. (s) Pearce v. Graham, 32 L. J., Ch. 359. But the subject of bequest has been held liable to probate duty as part of the de (0) Wild v. Reynolds, 5 No. Cas. 1; ceased donee's estate, Perry's Executors Winter v. Winter, 5 Hare 314. (p) Winter v. Winter, Wisden v. Wisden, supra. v. The Queen, L. R., 4 Ex. 27. (t) See the doubt expressed, In re Mason's Will, 34 Beav. 497, 498. not apply to It has been decided that section 33 does not prevent the lapse of Section 33 does property appointed by will under a power to appoint in appointments favor of particular objects, where, by the instrument creating the power, the property is disposed of in default of any appointment being made; (u) but that it does prevent lapse where the power is general, although there may be a disposition in default of appointment.] (x) under a special power. (u) Griffiths v. Gale, 12 Sim. 327, 354. (z) Eccles v. Cheyne, 2 K. & J. 676. [*355] shown to tee tators in the of wills. construction I. In the construction of wills the most unbounded indulgence has been shown to the ignorance, unskillfulness, and negligence Indulgence of testators: no degree of technical informality, or of grammatical or orthographical error, (a) nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together; (b) but if, after every endeavor, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence.1 Conjecture is not permitted to supply what the testator a) See 3 Keb., pl. 49, 23; [Henniker . Henniker, 12 Jur. 618; but see Jackson v. Craig, 20 L. J., Ch. 204, 15 Jur. 811; Baker v. Newton, 2 Beav. 112; Langley v. Thomas, 6 D., M. & G. 645. (b) See Minshull v. Minshull, 1 Atk. 410.] 1. In the language of Lord Brougham, in Doe d. Winter v. Perratt, 6 Mann. & Gr. 359: "We ought not, without absolute necessity, to let ourselves embrace the alternative of holding a devise void for uncertainty. Where it is possible to give a meaning we should give it, that the will of the testator may be operative; and where two or more meanings are presented for consideration, we must be well assured that there is no sort of argument in favor of one view rather than another, before we reject the whole. It is true, the heir-at-law shall only be disinherited by clear intention; but if there be ever so little reason in favor of one construction of a devise rather than any other, we are at least surer that this is nearer the intention of the testator, than that the whole should be void and the heir let in. The cases where courts have has failed to indicate; for as the law has provided a definite successor in the absence of disposition, it would be unjust to allow the right of this ascertained object to be superseded by the claim of any one not refused to give a devise any effect on the ground of uncertainty, are those where it was quite impossible to say what was intended, or where no intention at all had been expressed, rather than cases where several meanings were suggested and seemed equally entitled to the preference. On this head it may further be observed, that the difficulty of arriving at a conclusion-even the grave doubt which may hang around it certainly the diversity and the conflict of opinions respecting it, and the circumstances of different persons having attached different meanings to the same words, form no ground whatever of holding a devise void for uncertainty. The difficulty must be so great, that it amounts to an impossibility: the doubt so great, that there is not an inclination of the scales one way, before we are entitled to adopt the conclusion. Nor have we any right to regard the discrepancy of opinion as any evidence of the uncertainty, while there remains any reasonable ground of preferring one solution to all the rest. The books are full of cases, where every shift, if I may so speak, has been resorted to rather than hold the gift void for uncertainty." See, too, the language of Hornblower, C. J., in Den v. McMurtrie, 3 Green (N. J.) 276: "It must be an extreme case before we can relieve ourselves of the duty of giving a construction to the instrument by declaring it void for uncertainty." See also Kelly v. Kelly, 25 Penna. St. 460. And in Church Soc. v. Hatch, 48 N. H. 393, Bellows, J., says: "A devise is held to be void for uncertainty only when after a resort to oral proof it still remains matter of mere conjecture what was intended by the instrument." See also Townsend v. Downer, 23 Vt. 225. But where the will is so obscure that court cannot discern the intention of the testator, the legacy must fail, and the property pass under the residuary clause. Rothmalter v. Myers, 4 Desaus. 215; Wooten v. Redd, 12 Gratt. 196. The degree of certainty required in wills making devises is only so much that the court may be enabled, by fair and reasonable intendment, to ascertain the meaning, Swift v. Lee, 65 Ill. 336. And the intention of the testator is the first consideration, Johnson v. M. E. Church, 4 Iowa 180. Uncertainty is sometimes the result of the improper use of "or" for "and," or vice versa. The general rule in such cases is that the one word will be construed to have been used for the other, where the plain intent of the testator will be defeated without such substitution, but such construction is not admissible unless it be necessary to carry out the manifest design of the will. Harrison v. Bowe, 3 Jones Eq. 478; Dallam v. Dallam, 7 Harr. & J. 220; Sayward v. Sayward, 7 Greenl. 210; Janney v. Sprigg, 7 Gill 97; Neal v. Cosden, 34 Md. 421; Van Vechten v. Pearson, 5 Paige 512; Holcomb v. Lake, 1 Dutch. 605. Where the devise was to A, "but if he should die before he is of age or has lawful issue," then over, " or " was construed "and," and A took the fee upon attaining full age, and the limitation over was defeated, though he died subsequently without issue, Scanlan v. Porter 1 Bailey 427; so, too, in Sayward v. Sayward, ubi supra; Brewer v. Opie, 1 Call 212; Shands v. Rogers, 7 Rich. Eq. 422 ; Witsell v. Mitchell, 3 Rich. 289; Ward v. Waller, 2 Spears 786. Where the provision was, "but should my niece die unmarried and without leaving children, and should she die leaving children and such child or children die before twenty-one years or without having married previousto the attainment of such age," "and," between "unmarried" and "without leaving," &c., was construed "or," and "or," between years" and without," &c., " |