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the testator, at the close of his will, suddenly changed his mind, and intended the last line as a revocation of the preceding dispositions; and yet, after having discovered so much skill and accuracy in the preceding parts of his will, was at a loss how to express his intention clearly in this critical line. Nor could it be supposed, that he went through the solemnity of executing, and afterwards kept by him for five years and upwards an instrument as his will, five-sixths whereof were not his will? In the case of Pain v. Ridout, the words of the residuary clause were express, comprehensive, and proper; and the real estate being added to the chattels and personal estate, by means of the words [404] together with, left no doubt upon the matter. Besides, there was no express restriction from waste annexed to the estate for life; and the testator, in that case, gave to his heir at law and his issue, the inheritance of part of the lands devised to the wife for life; thereby ascertaining expressly, how much of those lands should go to his heir. It was also observable, that in that case, the heir at law was expressly and amply provided for out of the real estate. But all these circumstances were diametrically the reverse of what the present case afforded, therefore the authority of that case was not presumed to be applicable here; and though a subsequent express devise may destroy a preceding one, it was submitted, that a preceding express devise could not be destroyed by an unnecessarily implied one.

IV. The inconsistency of the testator's giving his mother an express estate for life, without liberty of committing waste, if his intention was that she should take the same lands in fee, was insuperable. Could it be supposed, that he confined her to an estate for life in one line, for no other use than to destroy it by giving her the fee in the next? Could any thing be more absurd than to restrain her from waste, and then immediately to undo that restriction by giving her the inheritance? His expressly denying her the powers incident and belonging to the inheritance, amounted to an express denial of that inheritance. The testator had been extremely particular, express, and guarded in the devise of the two denominations to his mother, for her life, without power of waste; if he had intended her any thing in the other two denominations, he certainly would have been no less explicit as to them; they were of much greater value, and were equally under his contemplation, for he expressly charged them with the legacies to his brother's natural children. It was inconceivable therefore, that he should be so minute and particular in ascertaining which of the denominations his mother should have, and limiting and circumscribing her interest therein, if he intended she should take all the denominations, and the whole unlimited estate in them.

But it is said, that the restriction from waste was intended only as an admonition to the mother, and to prevent her from prejudicing the fund out of which the legacies were to be paid; and that the express estate for life was by way of giving her a proference, and a clear income during the subsisting charges.

To give the fee to his mother would destroy the preference so said to be intended for her, by letting in the legacies immediately on her estate for life; and by removing the restriction of waste, the whole fund would be put into her power, contrary to his intention, and she might prejudice it as she thought proper. Besides, it would be a singular expedient for securing the lands from prejudice, to restrain waste to the amount of £200 in part of the lands, that being the value of the timber on the lands devised to the mother for life, and at the same time to leave full power of waste, to the amount of £4500 and [405] upwards, on other part of the lands, that being the value of the timber on the lands not devised to her.

Upon the whole it was submitted, that if there was a doubt, the title of the heir at law must preponderate. This is a rule of law established beyond dispute, a rule which is universally admitted, and was recognised and affirmed by the express opinion of the Court of King's Bench, as delivered by Lord Mansfield, in a late case of Loveacre v. Blight, heard in Hilary term 1775 (Cowp. 352), when his Lordship declared, that where the court cannot find words in a will expressive of the testator's intention, beyond the possibility of a doubt, the rules of law must take place. Now it was impossible to deny, that the different opinions delivered by the several courts before which this cause had been heard, proved at least that those courts were so far from finding in the residuary clause of George Jackson's will words expressive of the testator's intention, beyond the possibility of a doubt, that they had not only doubted, but actually disputed about his intention; for, as all agreed, that certainty of intention would disinherit an heir at law, those judgments, which in this case denied the heir at law to be disinherited, of