(z) Sect. 21.
The above are the only means by which a will can now be revoked; unless, of course, the testator choose afterwards to part with any of the property comprised in his will, which he is at perfect liberty to do. In this case the will is revoked, as to the property parted with, if it does not find its way back to the testator, so as to be his at the time of his death. Under the statute of Hen. VIII. a will of lands was regarded in the light of a present conveyance, to come into operation at a future time, namely, on the death of the testator. And if a man, having made a will of his lands, afterwards disposed of them, they would not, on returning to his possession, again become subject to his will, without a subsequent republication or revival of the will (c). But, under the Wills Act, no subsequent conveyance shall prevent the operation of the will, with respect to such devisable estate or interest as the testator shall have at the time of his death (d). In the same manner, the old statute av;is not considered as enabling a person to dispose by will of any lands, except such as he was possessed of at the time of making his will: so that lands purchased after the date of the will could not be affected by any of its dispositions, but descended to the heir at law (e). This also is altered by the Wills Act, which enacts (f), that every will shall be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. So that every man may now dispose, by his will, of all such landed property, or real estate, as he may hereafter possess, as well as that which he now has. Again, the result of the old rule, that a will of lands was a present conveyance, was, that a general devise by a testator of the residue of his lands was, in effect, a specific disposition of such lands and such only as the testator then had, and had not left to any one else (g). A general residuary devisee was a devisee of the lands not otherwise left, exactly as if such lands had been given him by their names. The consequence of this was, that if any other persons, to whom lands were left, died in the lifetime of the testator, the residuary devisee had no claim to such lands, the gift of which thus failed; but the lands descended to the heir at law. This rule is altered by the act, under which (h), unless a contrary intention appear by the will, all real estate comprised in any devise, which shall fail by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in the will.
By writing duly executed.
By subsequent will.
(a) Stat. 7 Will. IV. & 1 Vict. c. 26, B. 20.
(b) 1 Jarman on Wills, 160, 1st ed.; 146, 2nd ed.; 162, 3rd ed.
(c) 1 Jarman on Wills, 130, 180, 1st ed.; 122, l64, 2nd ed.; 136, 183, 3rd ed.
(d) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 23.
This failure of a devise, by the decease of the devisee in the testator's lifetime, is called a lapse; and this lapse is not prevented by the lands being given to the devisee and his heirs; and in the same way, before the Wills Act, a gift to the devisee and the heirs of his body would not carry the lands to the heir of the body of the devisee, in case of the devisee's decease in the lifetime of the testator (i). For, the terms heirs and heirs of the body are words of limitation merely; that is, they merely mark out the estate, which the devisee, if living at the testator's death, would have taken, - in the one case an estate in fee simple, in the other an estate tail; and the heirs are no objects of the testator's bounty, further than as connected with their ancestor (k). Two cases have, however, been introduced by the Wills Act, in which the devise is to remain unaffected by the decease of the devisee in the testator's lifetime. The first case is that of a devise of real estate to any person for an estate tail; in which case, if the devisee should die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (l). The other case is that of the devisee being a child or other issue of the testator dying in the testator's lifetime and leaving issue, any of whom are living at the testator's death. In this case, unless a mere life estate shall have been left to the devisee, the devise shall not lapse, but shall take effect as in the former case(m).
A will now speaks from the death of the testator.
General residuary devisee.
(e) 1 Jarman on Wills, 587,1st ed.; 548, 2nd ed.; 610, 3rd ed. (f) Sect. 24.
(g) 1 Jarman on Wills, 587,1st ed.; 548, 2nd ed.; 610, 3rd ed. (h) Sect. 25.
No lapse now in two cases.
Devise to issue of testator.
(i) Hodgson and Wife v. Ambrose, 1 Dougl. 337.
(k) Plowd. 345; 1 Rep. 105; 1 Jarm. Wills, 293, 1st ed.; 277, 2nd ed.; 314, 3rd ed.
(l) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 32.
(m) Sect. 33. See Principles of the Law of Personal Property, p. 291, 4th ed.; 324,5th ed.; 330, 6th ed.; 351, 352, 7th ed.; Johnson v. Johnson, 3 Hare, 157; Eeeles v. Cheyne, 2 Kay & J. 676; Griffiths v. Gale, 12 Sim. 354.
The construction of wills is the next object of our attention. In construing wills, the Courts have always borne in mind, that a testator may not have had the same opportunity of legal advice in drawing his will, as he would have had in executing a deed. And the first great maxim of construction accordingly is, that the intention of the testator ought to be observed (n). The decisions of the Courts, in pursuing this maxim, have given rise to a number of subsidiary rides, to be applied in making out the testator's intention; and, when doubts occur, these rules are always made use of to determine the meaning; so that the true legal construction of a will is occasionally different from that which would occur to the mind of an unprofessional reader. Certainty cannot be obtained without uniformity, nor uniformity without rule. Rules, therefore, have been found to be absolutely necessary; and the indefinite maxim of observing the intention is now largely qualified by the numerous decisions which have been made respecting all manner of doubtful points, each of which decisions forms or confirms a rule of construction, to be attended to whenever any similar difficulty occurs. It is, indeed, very questionable, whether this maxim of observing the intention, reasonable as it may appear, has been of any service to testators; and it has certainly occasioned a great deal of trouble to the Courts. Testators have imagined that the making of wills, to be so leniently interpreted, is a matter to which any body is competent; and the consequence has been an immense amount of litigation, on all sorts of contradictory and nonsensical bequests. An intention, moreover, expressed clearly enough for ordinary apprehensions, has often been defeated by some technical rule, too stubborn to yield to the general maxim, that the intention ought to be observed. Thus, in one case (o), a testator declared his intention to be, that his son should not sell or dispose of his estate, fox-longer time than his life, and to that intent he devised the same to his son for his life, and after his decease, to the heirs of the body of his said son. The Court of King's Bench held, as the reader would no doubt expect, that the son took only an estate for his life; but this decision was reversed by the Court of Exchequer Chamber, and it is now well settled that the decision of the Court of King's Bench was erroneous (p). The testator unwarily made use of technical terms, which always require a technical construction. In giving the estate to the son for life, and after his decease to the heirs of his body, the testator had, in effect, given the estate to the son and the heirs of his body. Now such a gift is an estate tail; and one of the inseparable incidents of an estate tail is, that it may be barred in the manner already described (q). The son was, therefore, properly entitled, not to an estate for life only, but to an estate tail, which would at once enable him to dispose of the lands for an estate in fee simple. In contrast to this case are those to which we have before adverted, in the chapter on estates for life (r). In those cases, an intention to confer an estate in fee simple was defeated by a construction, which gave only an estate for life; a gift of lands or houses to a person simply, without words to limit or mark out the estate to be taken, was held to confer a mere life interest. But, in such cases, the Courts, conscious of the pure technicality of the rule, were continually striving to avert the hardship of its effect, by laying hold of the most minute variations of phrase, as matter of exception. Doubt thus took the place of direct hardship; till the legislature thought it time to interpose. A remedy is now provided by the act for the amendment of the laws with respect to wills (s), which enacts (t), that where any real estate shall be devised to any person, without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest, which the testator had power to dispose of by will, in such real estate, unless a contrary intention shall appear by the will. In these cases, therefore, the rule of law has been made to give way to the testator's intention; but the case above cited, in which an estate tail was given when a life estate only was intended, is sufficient to show, that rides still remain which give to certain phrases such a force and effect, as can be properly directed by those only who are well acquainted with their power.