tion on that point is needed in order to give practical effect to other parts of the will. (q) Where the amount is dif A bequest of a sum "not exceeding" £100, (r) or of "£50 or £100," (8) will be construed in a manner most beneficial ferently stated. to the legatee, and is, therefore, a good gift of the whole £100; and a bequest will not be void for uncertainty, merely because the amount is differently stated in different parts of the will, if the court can collect that one statement was evidently a mistake, even though the mistake be contained in the very words of gift.](t) devisee is to take. An instance of uncertainty in the subject of gift occurred in Jones d. Uncertainty as Henry v. Hancock, which underwent much discussion. (u) to the share the The testator devised lands to his daughter, Ann Henry, for life, with remainder to her first and other sons in tail male, remainder to his other daughter Frances. The devise to Ann was upon condition that she married a man possessed of a property at least equal to, if not greater than, the one he left her. The testator then proceeded as follows: "And if she marries a man with less property than that, in that case I leave her only as much of mine as shall be equal to the property of the man she marries; and all the remainder of my property shall immediately pass over and be given up to my second daughter Frances Henry, to whom, in that case, I bequeath it.” It was held in D. P., that the devise over was void for uncertainty, as the specific portion or share so given over did not appear in the will itself. On delivering the opinion of the judges, Gibbs, C. J., said, “The will gives over an uncertain part, not specifying the lands if to be held in severalty; or, if this should be considered as an undivided portion in the whole, it cannot be discovered from the will what that portion is. It has hardly been contended, that anything was given over in severalty; but it was contended, with more color, that the person to take the excess, beyond the husband's property, would be tenant in common with Ann, of a moiety or some other given share. It is impossible to put the case upon any other ground than this: a portion is given over, and it cannot be a In what the uncertainty consists. (q) See Chapman v. Brown, and other cases presently stated. (r) Thompson v. Thompson, 1 Coll. 395; Cope v. Wilmot, 1 Coll. 396, n.; Gough v. Bult, 16 Sim. 45. (t) Philipps v. Chamberlaine, 4 Ves. 50.] (u) 4 Dow 145. See Gibbon v. Harmer, 2 Roll. Rep. 425; Hoffman v. Hankey, 3 My. & K. 376, post; [Rickards . (8) Seale v. Seale, 1 P. W. 290; and Rickards, 2 Y. & C., C. C. 419.] see Haggar v. Neatby, Kay 379. If it Our Unless the speshare is dis cific interest or tinctly pointed out, devise not sufficient to create a tenmon. ancy in com portion to be held in severalty. The only way then is, that the person to take the excess shall have some undivided portion of the whole; and if the devise defines what that interest is, it will be sufficient to give its objects the benefit of it. But we think that the devise does not define any specific interest which the object of it can take. The only ground upon which this can be contended to be a tenancy in common, which supposes some specific share, is, that it may be left to a jury to decide according to the values. The inconvenience and confusion which would result from this is obvious; different juries would set different values on the respective properties of the husband and wife: and the valuation must be made too at the period of the marriage, and at any distance of time a jury might be called upon to say what was the value of the property. It would not only be difficult, but in some cases impossible, to ascertain the value in this way. opinion, however, does not rest on the inconvenience and confusion, but on the principle of law, that such a devise is not sufficient to create a tenancy in common. were so, it must be upon the marriage of Ann; and all the consequences of a tenancy in common must then have taken place." "They must have been capable of being separately sued in all real actions, and in actions of ejectment, a modern proceeding which has come in the place of real actions. Now, in every real action, though we do not know from the writ, it must appear in the declaration what is the specific interest in question, how the title is derived, and what the precise interest is; but here there is no such thing. At the time of Ann's marriage it could not be collected from the will what the specific interest was. If they were in the situation of tenants in common, see how they could answer: a creditor, who has a demand against one of them, institutes his suit, and proceeds to get the lands by elegit. He has judgment for a moiety of the share, and the sheriff is directed to deliver a moiety. But the share must appear in order to enable the sheriff to deliver the moiety; and no case has ever occurred where the difficulty has been cast on the sheriff to ascertain the share. And there is no instance of a tenancy in common where the extent of the interest could not be ascertained from the instrument creating it. This difficulty, too, presents itself: tenants in common have each a right to a writ of partition. The writ does not state the share, but in the declaration the precise interest is stated." [But a devise to two persons in such shares as should be determined by (blank), would make them tenants in common in equal shares. (x) On the same principle an equal division is made where the donee of a power of distribution fails to exercise the power; (y) or where the gift consists of a general direction that the legatees should "participate."](z) Devise in shares to be determined by person omitted to be named. And (a) where the gift comprises a definite portion of a larger Gift of part of a larger quantity not uncertain, is entitled to select. quantity, it is not rendered nugatory by the omission of the testator to point out the specific part which is to form where devisee such portion, the devisee or legatee being in such case entitled to select; by which means the subject of the gift is reducible to certainty; and id certum est quod certum reddi potest is a settled rule in the construction of wills. Thus, if a man devise two acres out of four acres that lie together, it is said that this is a good devise, and the devisee shall elect. (b) So, if a testator devise a messuage, and ten acres of land surrounding it, part of a larger number of acres, the choice of such ten acres is in the devisee. (c) Gift of any part or of so tee shall select. [Again, where a testator devised the residue of his property to his wife for life," reserving to her power to will away any much as lega- part" of it at her death, with a gift to his daughter of what his wife *should not dispose of; it was argued that it was clear the testator did not intend the power to extend to the whole, and so to disinherit his daughter, and that no limits being defined, the power was void for uncertainty; but it was held that the power extended to the whole estate. (d) So a trust to permit the testator's wife "to appropriate absolutely to herself such parts" of his plate as she should desire to possess, has been held to give the widow the whole of the plate. (e) But where a testator bequeathed his household property on trust for sale, "except such articles as his wife should wish to retain for her own use, which he thereby empowered her to appropriate," it was said that this intimated a confidence that [(x) Robinson v. Wheelwright, 21 Beav. 214. (y) Salusbury v. Denton, 3 K. & J. 529. (2). Liddard v. Liddard, 28 Beav. 266. See also Greville v. Greville, 27 Beav. 594.] (a) Peck v. Halsey, 2 P. W. 387. (c) See Hobson v. Blackburn, 1 My. & K. 574; [Jacques v. Chambers, 2 Coll. 441; Duckmanton v. Duckmanton, 5 H. & N. 219; Millard v. Bailey, L. R., 1 Eq. 378. (d) Cooke v. Farrand, 7 Taunt. 122. (b) Grace Marshall's Case, Dy. 281, a, p. 93. n., 8 Vin. Abr. 48, pl. 11. the wife would make some selection, and would not take the whole; though to what extent short of that is not very clear.] (f) A, testator having two of that name, is void. But, if a testator having two closes called Whiteacre, devises (not one of his closes, but) his close called Whiteacre, this does Gift of close not entitle the devisee to take either of the closes at his pleasure, but the uncertainty as to which is intended, renders the devise void; (g) [and if he make a general devise of all except the close called Whiteacre, there being two of that name, the exception is uncertain, and the general devise will be read as if it contained no exception. (h) But where a testator bequeathed all his property in the Austrian and Russian funds, " and also that vested in a Swedish mortgage," the testator having several Swedish mortgages, they were all held to pass. (¿) And where a testator having five leasehold messuages in L., comprised in four leases, bequeathed "his four leasehold messuages in L.," it was held that all five messuages passed upon a context somewhat favoring that construction.] (k) A bequest of what shall remain or be left at the decease of the prior legatee, (l) [or of what the legatee is possessed of at *the time of death, (m) or of what he does not want, (n) or does not spend, (o) or of what he can transfer, (p) or what he Gift over of has not dis what legatee posed of, held too indefinite. can save out of his yearly income, (g) or of what remains undisposed of, or is not disposed of by deed or will, (r) or of the "bulk" of (ƒ) Kennedy v. Kennedy, 10 Hare 438. In Davis v. Davis, 1 H. & M. 255, the donee of a power to distribute plate, &c., being also one of the objects, allotted the largest share to himself, and this was upheld. See also Reid v. Reid, 30 Beav. 389.] (g) Richardson v. Watson, 4 B. & Ad. 798; but evidence is admissible to remove such an ambiguity; see next chapter. [(h) Blundell v. Gladstone, 14 Sim. 83, better reported 8 Jur. 301. But the devise was, in fact, of all (except W.), "including trust estates," and W. was given to A.; and the decree was reversed, 3 M. & Gord. 692, on the ground that one of the two properties called W. being vested in the testator as trustee, it was to be presumed that he meant the other to pass by the particular devise. (i) Richards v. Patteson, 15 Sim. 501. (k) Sampson v. Sampson, L. R., 8 Eq. 479. (1) Bland v. Bland, 2 Cox 349;] Wynne v. Hawkins, 1 B. C. C. 179; Pushman v. Filliter, 3 Ves. 7; Wilson v. Major, 11 Ves. 205; [Perry v. Merritt, L. R., 18 Eq. 152. (m) Att.-Gen. v. Hall, 1 J. & W. 158, n., 2 Cox 355; Pope v. Pope, 10 Sim. 1. (n) Sprange v. Barnard, 2 B. C. C. 587; Hudson v. Bryant, 1 Coll. 631; it seems that Upwell v. Halsey, 1 P. W. 651, cannot now be considered law; see per Lord Loughborough, 2 Ves., Jr., 532, and per Sir E. Sugden, 1 Ll. & G. 298. (0) Henderson v. Cross, 29 Beav. 216. (p) Flint v. Hughes, 6 Beav. 342. (q) Cowman v. Harrison, 17 Jur. 313, 22 L. J., Ch. 993. (r) Bourn v. Gibbs, 1 R. & My. 614; Whether the as to specific chattels. certain property, (8) or a gift over of the whole legacy in case of the death of the prior legatee intestate, (t) is void for uncertainty.] Some of these cases certainly had special circumstances, and the indefiniteness seems not to have been invariably considered same rule holds to be such as to invalidate the gift. (u) At all events expressions of this nature are capable of explanation, where the property, or part of it, consists of household furniture, or other articles of a perishable nature, by considering these words as referring to the expected diminution of the property by the use and wear of the first taker. [Neither would there be any uncertainty as to the subject of the gift over in any bequest of specific chattels capable of identification. The point, however, is unimportant; for the gift over would be void on another ground, namely, its repugnancy to the prior gift. (x) Gift of what remains at the decease of A good where A takes for life only. But where] property (whatever be its nature) (y) is expressly limited to the first taker for life, there is not, it is believed, any case in which such expressions have been held to render the ultimate gift void, [comprising as they then do the whole corpus.] Thus, in Cooper v. Williams, (z) [the testator gave personal property to his wife for life, and what she had left at her death to his next of kin, and it seems to have been thought that the gift over was good.] So in Gibbs v. Tait, (a) where a testator bequeathed a residue to his wife and her assigns, and directed her to apply the interest and proceeds thereof for her own use and benefit, and after her decease or marriage he gave what should be remaining of such residuary moneys to other persons, no objection *seems to have been advanced to the validity of the gift on the ground of uncertainty. Gibbs v. Tait. Ross v. Ross, 1 J. & W. 154; Bull v. Kingston, 1 Mer. 314; Grey v. Montague, 2 Ed. 205, 3 B. P. C. Toml. 315; Phillips v. Eastwood, 1 Ll. & G. 270; Watkins v. Williams, 3 M. & Gord. 622; In re Yalden, 1 D., M. & G. 53; Bowes v. Goslett, 27 L. J., Ch. 249, 4 Jur. (N. S.) 17; but see Borton v. Borton, 16 Sim. 552. (8) Palmer v. Simmonds, 2 Drew. 221. (t) Cuthbert v. Purrier, Jac. 415; Green c. Harvey, 1 Hare 428; Eade v. Eade, 5 [*364] Mad. 118; Lightbourne v. Gill, 3 B. P. C. Toml. 250; Weale v. Ollive, 32 Beav. 421.] (u) Duhamel v. Ardovin, 2 Ves. 162; Hands v. Hands, 1 T. R. 437, n. [(x) See ch. XXVII. (y) Except "consumable" articles, see Andrew v. Andrew, 1 Coll. 690; and ch. XXVI., ad fin.] (2) Pre. Ch. 71, pl. 64. |