2 Duke of Northumberland v. Errington, 5 T. R. 526; Rich v. Rich, Cro. Eliz. 43. See also Gervis v. Peade, Cro. Eliz. 615; Woodyard v. Dannock, Cro. Eliz. 762; Broughton v. Conway, Dyer, 240. An agreement to pay an annuity to a husband and wife " during their natural lives " binds the party to pay not only during their joint lives, but also during the life of the survivor. Douglas v. Parsons. 22 Ohio St. 526 (1872).
3 Solly v. Forbes, 4 Moore, 448; Hotham v. East India Co., 1 T. R. 638.
§ 809. But whenever one portion of a contract is wholly repugnant to the rest of it, and is irreconcilable with the manifest intention of the parties, as apparent upon a consideration of the whole instrument, it will be stricken out, and effect will be given to the instrument cy pres.1 If, therefore, a thing be granted generally, with a proviso which annuls the grant, the proviso will be considered as a nullity. Thus, if there be a demise of a parsonage, with the lands and woods, except the woods, the exception is void. So, also, if a lease be made for ten years certain, with the condition that the term shall be at the will of the lessor, the condition is void.2
1 Stukeley v. Butler, per Lord Hobart, Hob. 172; Butler v. Duncomb, 1 P. Wms. 448; Throckmerton v. Tracy, Plowd. 156; 2 Black.Comm. 379.
2 Child v. Ficket, 4 Greenl. 471. See also Willard v. Moulton, 4 Greenl. 14; Jackson v. Stevens, 16 Johns. 110; Saward v. Anstey, 2 Bing. 519; Co. Litt. 146 a.
3 Parsons, C. J., in Worthington v. Hylyer, 4 Mass. 196, 205.
1 Cleaveland v. Smith, 2 Story, 287. In this case, which was a case of a sale of a lot of land the boundary of which was raisdescribed through mistake, the intent of the parties being perfectly clear; Mr. Justice Story said: "It is the common case of a latent ambiguity; and the real question is, what, in a case of mutual mistake in the descriptive words of the instrument, is to be done ? Now, there can be but one of two courses adopted by a court of justice, under such circumstances; one of which is to set aside the instrument as inoperative, on account of the mistake, which would, in this case, be to defeat the object of both parties; the other is, to ascertain the real intention of the parties from the words of grant taken altogether, ex visceribus concessionis; and to give effect to that intention, notwithstanding the misdescription, if I may so say, cy pres, rejecting such of the descriptive words as are inconsistent with that intention, or are properly to be deemed subordinate, as accidents, and not as incidents thereto. This latter doctrine is the doctrine adopted by courts of law, upon the ground of the well-known maxim, Ut res magis valeat, quam pereat. There is no magic in particular instruments; the doctrine is equally applicable to all instruments, where the intention is sought for, and is to be executed. Thus, in a will, if there be a general intention expressed, and a particular intention repugnant to the former, the rule of interpretation is, that the particular intention is to be rejected, and the general intention is to be carried into effect, as the predominant intention of the testator. So if there be a partial misdescription in a will of the devisee or legatee, or of the thing devised or bequeathed, and yet the party or the thing can, by reasonable interpretation, be ascertained with reference to the extrinsic evidence, creating the doubt, courts of law, as well as of equity, will reject such part of the misdescription as is manifestly unessential, and give full effect to the main intention, deductible from the words. Now, precisely the same doctrine is applied to the interpretation of deeds and other written instruments. If the descriptive words are, with reference to the actual facts, repugnant or inconsistent with each other, and yet the intention of the parties can be ascertained, the misdescription will not vitiate the instrument; but it will yield to the clearly ascertained intention. And it is only when the language, with reference to proferentem.1 Or, as elsewhere expressed, if it is uncertain, in view of the general tenor of an instrument and the apparent in an indenture, jit will be construed most strongly against him; and, generally, exceptions in deeds and other instruments are to be construed most strongly against the party for whose benefit they are introduced. Thus, words of exception used by underwriters in a policy of insurance, to exempt them from a general liability, are to be construed most strongly against the underwriters.1 So, also, exceptions or reservations in a deed or lease are to be interpreted in favor of the grantee or lessee; and if uncertain or indefinite in their terms, the grantee and lessee are to receive the benefit accruing therefrom.2
2 Bac. Abr. Grants, L. 1; Stukeley v. Butler, Hob. 172, 173; Moore, 881; Jackson v. Ireland, 3 Wend. 99.
§ 810. Yet if the condition be only explanatory, and not repugnant to the rest of the contract, it will operate as a limitation ; as, if one lease be made of two houses, the term as to one being limited to five years, and that of the other to ten. So, also, if a feoffment be made of two acres, one to be held in fee and the other in tail, effect will be given to the condition, for the habendum only explains the manner of taking, without restraining the gift.1 Indeed, wherever a general and indeterminate stipulation, occurring in a previous part of a contract, is limited by a subsequent clause, effect must be given to both clauses. But if the subsequent stipulation contradict and restrict what was distinctly stated, and constituted a principal inducement to the contract, it will be of no effect.2
§ 811. The last rule of interpretation is, that terms which are doubtful or ambiguous are to be taken most strongly against the person engaging; unless some wrong is thereby done.3 Verba ambigua chartarum fortius accipiuntur contra the actual facts, involves such fatal errors and mistakes, as leaves the court without reasonable means of ascertaining the real intention, that the instrument will be treated as a nullity."