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brother's natural children, out of his real estates, showed the improbability of his intending to give the inheritance of those estates to his mother. She was old, she was fond of those children, and he well knew her affection for them was such, that the leaving her the estate would, as the event had verified, be leaving it, through her, to those very children. Such a step was inconsistent with the care and pains he had taken in limiting and ascertaining the provisions he intended for them; because it would of course supersede and render those provisions nugatory; nay, the testator had expressly declared, that these children should have only £100 a-piece upon their coming of age, if they were not educated in the Protestant religion, or should not marry Protestants. Could anything be more idle or fruitless than this restriction, if he intended to leave his estates in a channel through which he could not but foresee it would come to those children in all events? Besides, the express restriction from waste, with which the testator had circumscribed the estate for life given to his mother, marked his solicitude to prevent her from prejudicing in favour of his brother's natural children, the objects of her fondness, that inheritance, which, as a conscientious and well-intentioned man, he designed should come to his heir [401] at law, by that same channel of legal descent, through which he himself became entitled to it.

But it was said, that the testator's mother was the first object of his bounty, as appeared by the affectionate terms in which he spoke of her; that a testator is presumed not to die intestate as to any part of his estate; and that if the residuary clause was inconsistent with the preceding parts of his will, it must controul those preceding parts, for cum duo inter sepugnantia reperiuntur in testamento ultimum ratum est.

The testator's mother was certainly so far, the first object of his bounty, as the securing to her a competent income during her life; but he expressly denied her more in his freehold estates, when he restrained her from the power of committing waste; nor was it probable that he thought her an object of any farther bounty out of those estates, for she was an old woman, and incapable of having children to call for the inheritance; a gift of the inheritance to her, would have been bounty not so much to her, as to those whom she might think proper to bestow it upon. Where there is a doubt, the general feelings of mankind must turn the scale; and surely those general feelings would never say, that the testator intended to give his estate from the heir, who was a near relation, to any stranger whom his mother, an old woman, should be pleased to name, As to the position, that a testator is presumed not to die intestate as to any part of his estate, it amounts to this, that a man cannot make a will without resolving to disinherit his heir at law of every foot of land; for so far as he does not disinherit him, he really dies intestate; because every devise to an heir at law, in fee, either immediate, or in reversion, is void, and the heir takes by descent, and not by the will. The technical skill which the testator had shown in other parts of his will, afforded ground to presume, that he was not ignorant of this point of law; and this skill might lead him to be silent, where he knew the estate would equally descend to his heir, whether he inserted or omitted a devise to him. And as to the maxim respecting the repugnancy in a will, it was inapplicable in this case, because the residuary clause was not repugnant to the preceding parts of the will; if the words of that clause were understood in their usual and proper signification, by considering the words effects real, as synonymous to chattels real. But the real force of this objection became most conspicuous, by stating the objection itself in its true light, thus: the testator had spoken so affectionately of his mother, that it was impossible he could intend to leave a foot of land to his heir at law; and therefore, notwithstanding he had in the most express words confined her to an estate for life, without power of waste, in two denominations, yet it must be concluded, that he intended her the whole fee in all his lands. And to support this conclusion, we are to persuade ourselves that a testator can never devise part only of his real estate, without intending at the same time to dispose of the whole; although his express words import the contrary; and [402] upon that ground we are to introduce a presumed repugnancy between the express tenor of the preceding parts of the will, and the ambiguous meaning of some irregular words in the residuary clause, to warrant the application of a rule, by which the latter may be allowed to extirpate the former; and the result of this reasoning we are to call the testator's intent. It is extraordinary indeed, when a testator expressly says, that his mother shall be tenant for life, and shall not have power of committing waste, to find it seriously insisted upon, that the testator intended she should not be tenant for life, and that she should