Page:The English Reports v1 1900.pdf/732

was express, that the daughters should take severally, and not jointly, i.e. that they should take distinct moieties as tenants in common, and not that upon the death and failure of the issue of one, her moiety should survive to the other, by way of cross remainders, for such issue must be construed the issue of such tenants in common respectively; and therefore the surviving sister could not take any estate upon the death of the deceased sister: so that either the heir of the body of the surviving sister must take by purchase in her life-time, if that could be in law; or the remainder to the heirs of the testatrix must take effect. But the words heirs of the body in the will, were words of limitation and not of purchase; and therefore, upon the death of Constantia, the remainder in fee of her moiety vested in the appellant.

On the part of the respondents Lord Cadogan and Sir Henry Englefield, it was argued (F. Norton, A. Wedderburn, R. Jackson), that the words additional and more, do not signify increase, in the sense contended for by the appellant; for there were two things, or two yearly sums given, one of £200 per ann. by the will, an additional one of £100 per ann. by the codicil, but neither of these were increased, they were two distinct yearly sums. It is true, the benefit intended by the will for the legatee is increased by the codicil, and the testator's bounty or good-will towards him may be said also to be increased; but the gifts were several and distinct. That although it was possible the testator might intend the £100 per ann. given by the codicil, should come out of the same fund as the £200 per ann. given by the will, yet Courts will not upon possibilities, nor even upon probabilities, make acts of this solemn nature absolutely void. But on the other hand, nothing was more clear, than that the testator might possibly intend that the additional sum of £100 per ann. should come out of the personal estate, because he had not any where in his codicil said expressly to the contrary, viz. that it should come out of the real estate. He had not used one expression, from whence it might by necessary implication be collected, that he meant it to come only out of the real estate, exclusive of the personal estate; for in case that was necessarily the meaning of the words, these words could not possibly stand with the very opposite words, payable out of my personal estate, if actually inserted; and yet if these words, payable out of my personal estate, were inserted, nobody could contend that the whole was not good sense, or say that it was unnatural, irrational, unintelligible, or inconsistent. A testator who has by his will given his friend a life annuity of £200 per ann. issuing out of his real estate, may certainly, without inconsistency or absurdity, make a codicil, and thereby give that friend another annuity of £100 per ann. to be issuing out of his personal estate. A testator when he [500] makes his codicil, may justly think his personal estate likely to be larger than he judged it to be when he made his will; events frequently increase a personal estate; and this testator had before his death actually contracted for the sale of a great part of his real estate, he had vested more in trustees upon trust to sell, and had he lived longer, might have seen more of his real estate sold than would have paid all his debts. It was therefore on conjecture only, and not on necessity, that the appellant would ground a conclusion, that the testator meant the annuity of £100 per ann. to come out of his real estate; and such conclusion was the more extraordinary, when drawn by those who insisted, that this was the true construction of an instrument, which they admit cannot possibly affect any thing but the personal estate. This conclusion so grounded, was totally to frustrate an intention of the testator, clearly and most indubitably expressed; and the legatee must be deprived of an additional legacy, and have no more than the testator first intended him, only because the testator had expressly declared his intention, that he should have £100 a year more. That although Courts, in expounding sentences and expressions which are really doubtful, often ground themselves on little hints, and sometimes on conjectures and trivial circumstances, fetched from and drawn out of different parts of the instrument which is to be by them expounded; yet that must always be where there is no obvious expression to indicate, what is or may be the intention of the party: the true maxim is, that no construction of an intent shall be received against express words; and as here was a will attested by two witnesses only, it was virtually a declaration, that all the bequests therein contained should affect the personal estate only; and if so, that exposition ought to be taken, which supports the natural intention of the testator.