certainty has been attained by which the facts and circumstances in a certain class of cases may be settled by precedents, while others, however, closely they may resemble or be analogous to other cases, they cannot be determined by precedents. The rule is universal and well settled that the whole will is to be taken together, so as to give effect, if it be possible, to the whole; and cases in the form of precedents are of little value to the courts unless they substantially agree in their facts with the case under consideration, -a circumstance of rare occurrence. Extraneous circumstances are sometimes proper for consideration2. or rejected, where warranted by the immediate context, or the general scheme of the will; but not merely in a conjectural hypothesis of the testator's intention, however reasonable in opposition to the plain and obvious sense of the language of the instrument. XX. That words, which it is obvious are mis-written (as dying with issue, for dying without issue), may be corrected. XXI. That the construction is not to be varied by events subsequent to the execution; but the courts, in determining the meaning of particular expressions, will look to possible circumstances, in which they might have been called upon to affix a significance to them. XXII. That several independent devises, not grammatically connected, or united by the ex pression of a common purpose must be construed separately, and without relation to each other; although it may be conjectured, from similarity of relationship, or other such circumstances, that the testator had the same intentions in regard to both. There must be an apparent design to correct them. XXIII. That where a testator's intention cannot operate to its full extent, it shall take effect as far as possible. XXIV. That a testator is rather to be presumed to calculate on the dispositions in his will taking effect, than the contrary; and, accordingly, a provision for the death of devisees will not be considered as intended to provide exclusively for its lapse, if it admits of any other construction. 2. Thurber v. Battey, 105 Mich. 718, 63 N.W. 995. §276. Intention of the Testator. "The intent of the testator is the cardinal rule in the construction of wills, and, if that intention can be clearly conceived, and is not contrary to some positive rule of law, it must prevail3." In other words a will should be interpreted and construed in accordance with the intention of the testator as expressed in or implied from the language used by him. It is the substance and not the form which must be considered in construing wills. In a case where the subject matter of a devise in a will had been omitted, the devise was not one for interpretation but one for construction, because there was nothing on which the power could be exercised; and as there was no subject-matter to be construed or interpreted, there was no call for intrinsic facts to aid the office of interpretation or construction. In other words the devise is a complete blank and in regard to the property the will is dumb. In this devise there was nothing whatever on the face of the instrument to denote what real estate the testator had in view, nor anything to incline the intention one way rather than another in search of it. Thus the primary object in the construction of a will is to ascertain, if possible, from the context of the will, the intentions of the testator®. $277. How the Intention is Ascertained. The general rule is that the intention must be collected from the whole will, founded on the writing itself, for to 3. Chief Justice Marshall in Finlay v. King, 3 Pet. (U. S.) 346; Foster v. Stevens, 146 Mich. 131, 109 N. W. 265. 4. Toms v. Williams, 41 Mich. 552, 2 N. W. 814. 5. Crooks V. Whitford, 47 Mich. 283, 11 N. W. 159. 6. Gregory v. Thompkins, 132 Mich. 205, 93 N. W. 245. 7. That the intention of a tes determine the intention it is natural that we must look to the will in order to give it effect-according to its intent, as far as that can be lawfully dones. It is manifest that the will is to carry out the intention of the testator, but the intention must not contravene any positive rules of law10. A codicil is always looked upon as a part of the will, and the intent is to be gathered from the whole, i. e., both from the will and codicilia. There is no question that since the statute of wills as well as before, a will may construed in connection with another instrument in writing to which it refers. "An extraneous unsigned writing," said the court, "may, by force of a clearly expressed intention in the body of the will, constitute part of the will itself. The reference in the will must be complete and unambiguous. It cannot be aided by extrinsic proof, but the identification of the writing referred to may be the subject of extrinsic parol testimony11." In order to understand the language of the testator Mr. Justice North said, "I must put myself in his position, and look at the surrounding circumstances." $278. How the Intention is Ascertained From the Words of the Will. "All words," said Lord Bacon, "whether they be in deeds tator is to be collected from the whole of the will, ir visceribus testamenti is manifest so as to leave the mind quite satisfied about what the testator meant. Ireland v. Parmenter, 48 Mich. 631, 42 N. W. 883; Tewkesbury v. French, 44 Mich. 100, 6 N. W. 218; Thurber v. Battey, 105 Mich. 718, 63 N. W. 995. 8. Jameson et al., appellants, etc., 1 Mich. 99; Jones v Jones, 25 Mich. 401; Kinney v. Kinney, 34 Mich. 524; Toms v. Williams, 41 Mich. 565. 9. Cummings V. Corey, 58 Mich. 494, 25 N. W. 481. 10. Tracy v. Murray, 49 Mich. 35, 12 N. W. 900. 10a. Dexter v. Gordon, 136 Mich. 235, 98 N. W. 1016. 11. In re Blake Appeal, 117 or statute or otherwise, if they be general, and not express and precise, shall be restrained into the fitness of the matter and the person." The rule is universal that general words are interpreted in their usual sense, and they are strengthened by exceptions and weakened by enumeration, and it is clear that in order to avoid an obvious absurdity or inconsistency with the declared intention of the testator as gathered from the whole instrument, the ordinary and grammatical sense of the words employed may be modified, extended, or abridged to that extent, but no further, for no construction can be implied which is in conflict with the intentions of the testator as expressed in his will. In construing a will the general intent, if it can be gathered from the whole instrument, will govern; and neither the usual sense of technical language nor the order of clauses, will be allowed to disappoint the apparent and real purpose of the testator12, for the general corollary is that technical words and expressions must be taken in their technical sense, unless a clear intention can be collected to use them in another sense. It is said that in all cases where a difficulty arises in applying words of a will or deed to the subject-matter of a devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the productions of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be granted or devised13. The intention of the testator which can be collected with reasonable certainty from the entire Pa. St. 301. 12. Jones v. Jones, 25 Mich. 401; Tewkesbury v. French, 44 Mich. 103; Toms v. Williams, 41 Mich. 552; Kelly v. Reynolds, 39 Mich. 464; Goodell v. Hebbard, 32 Mich. 47; Jamison's Appeal, 1 Mich. 99. 13. Miller v. Travers, 8 Bing. 244. will with the aid of extrinsic evidence of a kind properly admissible must have effect given to it beyond, and even against the literal sense of particular words and expressions, and when the intention is legitimately proved, it is competent not only to determine and settle the meaning of ambiguous words, but to control the sense, even if clear and to supply the place with express words in case of difficulty and ambiguity. There are two ways in which a latent ambiguity may be removed by extrinsic evidence. The first may arise either when it names a person or the subject of a gift or a thing as the subject of it, and there are two persons or things that answer such name or description. The second may arise when the will contains a misdescription of the object or subject as where there is no such person or thing in existence, the person is not the one intended, or the thing does not belong to the testator11. In conclusion it may be said that in the construction of a will, the intention should be gathered from the four corners of the instrument15, and the intention must govern16, provided the ambiguity is not irreconcilable17. §279. How Intention to be Ascertained From Situation and Circumstances. The general rule in cases of this kind is to collect the intention of the testator from the words which he has used in his will, and not from conjecture, for it cannot be de 14. Kinney v. Kinney, 34 Mich. 250. 15. Wales v. Templeton, 83 Mich. 177, 47 N. W. 238; Stebbins v. Stebbins, 86 Mich. 474, 49 N. W. 294; Kinney v. Kinney, 34 Mich. 250; Jones v. Jones, 25 Mich. 401. 16. Wales v. Templeton, 83 Mich. 177, 47 N. W. 238. 17. Wheeler V. Wood, 104 Mich. 414, 62 N. W. 577. |