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r. O'Lcary, L. K. 7 Ch. 448 ; 41 L. .1. C'li. ;112 ; 2(; L. T. K;:?;

20 W. H. 501 i;t4

Wintlc, /.V, Tucker r. Wiiitli', [18'J(!] 2 Cli. 711; 7:> L. T. 207 ;

(i5 L. J. Ch. 863 ; 45 W. K. !»! 2Mi

Wise V. Piper, 13 Ch. I). 848; 41 L. T. 7iil ; i'.i L. .1. Ch. C-ll ;

28 W. K. 442 353

Withers r. Kennedy, 2 My. & K. G07 ; 3 L. J. Ch. 29 ; 3'J K. K. 310 : 334
Withy r. Mangles, "lO CI. & F. 215 ; 8 Jiir. (o.s.) G'.) ; 59 K. R. 95 : 393
Wolverton's Mortgaged Estates, Be, 7 Ch. 1). 197; 37 L. T. 573 ;

47 L. J. Ch. 127 ; 2t; W. K. 138 45

Wood, 7iV, Att.-Gcn. i Anderson, [18fl(i] 2 Ch. 596 ; 65 L. J. Ch.

814 ; 75 L. T. 28 ; 44 W. K. 685 191

■ , i.V, Ward r. Wood, 32 Ch. D. 517; 55 L. J. Ch. 720;

54 L. T. 932 ; 34 W. H. 788 14,322

, L'r, Wood r. Wood, [1902] 2 Ch. 542 ; 71 L. J. Ch. 723 ;

50 W. K. 695 ; 87 L. T. 316; 18T. L. H. 710 82

Woodin, lir. Woodin r. Glass, [1895] 2 Ch. 309 ; 72 L. T. 740 ;

64 L. J. Ch. 501 ; 43 W. K. 615 ; 12 H. 302 327

Woods, lie, Cabellini r. Woods, [1904] 2 Ch. 4 ; 74 L. J. t:h. 204 ;

90L. T. S 193

Woolley, lie, Worniald r. Woulley, [1903] 2 Ch. 206 ; 72 L. J. Ch.

602 ; 89 L. T. 16 270,312,314,320

Worniald v. Muzeen, 45 L. T. 115 ; 50 L. J. Ch. 776 : 29 W. K.

795 346

Wrangham, He, 1 Dr. & Sm. 358 ; 3 L. T. 722 ; 30 L. J. Ch. 258 ;

7 Jur. 15 ; 9 W. K. 156 269

Wrey, He, Stuart r. Wrey, 30 Ch. 1). 507 ; 51 L. J. Ch. 1098 ;

53L. T. 334 268

Wright r. Callender, 2 De G. M. .<s: G. 652; 21 L. J. Ch. 787;

16 Jur. 647 344

r. Wright, [1904] 1 I. K. 360 353,3.58

Wrightson. Jle, Battie-Wrightson r. Thomas, [IHOI] 2 Ch. 95;

73L. J. Ch. 742; 90L. T. 748 Ill

Wroe, i?r. Firth r. Wilson, 74 L. T. 302 34

Wynch, Kr parte. 5 D. M. & G. 188; 23 L. .J. Ch. 930; 18 Jur.

659 ; 2 W. R. 570 ; 2 Eq. I{. 1025 220



Yates, Ite, Bostock r. D'Eyncourt, [1891] 3 Ch. 53 ; 64 L. T. 819 ;

39 W. K. 573 234

, Re, Yates v. Wyatt, [1901] 2 Ch. 438 ; 70 L. J. Ch. 725 ;

85 L. T. 398 ; 49 W. K. 646 209,. 392

Yates's Trusts, He. 16 Jur. 78 ; 21 L. J. Ch. 281 284, 286, 288

Yeats c. Yeats, 16 Beav. 170 100

York r. Stone, 1 Salk. 158 233

Youman's Will, He, [1901] 1 Ch. 720 ; 70 L. J. Ch. 430 ; 84 L. T.

201 ; 49 W. R. 509 214



TABLE OF STATUTES CITED.



PAGE

27 Hen. 8, c. 10. (Statute of Uses) 211. 242. 2Sl\ l>s:{

2;» Car. 2, c. 7. (Lords Day Act, 1G77) 2")

Hit i: 40 Geo. 3, c. 98. (Thellussun Act, KSOU) :{24

11 (;eo.4A:l Will.4.c.4u. (Kxecuturs Act, 18:i0) 41, 1!U

:i A: 4 Will. 4. c. 10(5. (luheritaiice A( t, 1833), .s. 3 2U2. 233

1 Viet. c. 20. (Wills Act, 1837) ... 143, IGiJ, 166, lity, 227,

228, 229, 243, 249, 377

ss. 9, 10 148

s. 23 l.-il

s. 24 117,118,120—122

s. 2.-. 1.-.3, l.-.S

s. 26 1(;.-,_1(;7

8.27 13S. 142, 143, 14.S— l.-,l

s. 28 1119, 2IHI

s. 29 229

ss. 30. 31 249

s. 32 314

16 & 17 Vict. c. 137. (Charitable Trusts Act, 18r,3), s. 66 24

17 .t 18 Vict. c. 113. (Locke Kiii<,''s Act, 1854) 332, 3;{:{

22 A: 23 Vict. c. 3."). (Lord St. Lconanls' Act, 18.->!») ;{:i4

24 & 2.j Vict. c. 114. (Lord Kiiigsdown's Act. 1S61) 148, 14:t

30 i: 31 Vict. c. 69. (Locke King's Act, lSt;7) 332, 333

36 A; 37 Vict. c. 66. (Judicature Act, 1S73) 241

40 A: 41 Vict. c. 33. (Contingent Hemainders Act, 1877) 272

c. 34. (Locke Kings Act, 1.S77) 332.333

44 A; 4."i Vict. c. 41. (Conveyancing and Law of rroperty Act. IMHI) 201

6. 6 12.-.

H. 43 H27

H. 51 1'.I9. 201,203

H. 61 23.->

s. 62 371

4.", A: 46 Vict. c. 3H. (Settled Land Act, 18M2)—

KH. .-*M (1) (ii), .->9, 60 2:)1

c. 39. (Con vevancing Act, 1882^ 313

s. Ill' 230

0.75. (Married Women's rrfiperty Act, 1MH2) ... 232,

211.366—368, :i7H

8, 5 ;J67

H. II 72

H. 19 363. 366—368, 378

47 A: 48 Vict. r. 71. (Intestutes KHtafen Act, 18«4) 191

<;<» Ac 6! Vict. c. 65. (Ijind 'I'ran-fcr Act, 1H97) XU

s. I 239

62 ii 63 Vict. c. 2<J. (Hodies Cor|ifirate (Joint Teniincy) Ait, Isyj)

-. 1 ' 232



COEEIGENDA.



Tano CiO, (Jriiinmil /•. (irinidiid. For " (;:]0 " read '-CO.'?."

72, Crofts r. IJcamish. For "[l!)Or,J 2 I. \\. :{»!»" read '[ItK),-)]

1 1. K. :?4'.)."
•)t, Dimnnd r. Hostock. For •' 10 Ch. D." rrad " 10 V\\. Ap|..'"
IGO, Johns /■. Wilson. For " 190r>" rrad " I'.tOO."
379, in second paniynipli, al'ti-r Ih Clinton's Trust, add "and see also
Rr Bland's Settleniint, Bland c. I'erkins, [l'JO">] 1 Ch. 4. '



THE

inilXriPLES OF THE INTERPRETATION

OF

tDlillji and ^cttlementji.



PAE.T I.

GENERAL PRINCIPLES.

ART. PAGE

1. Words presiiiiied tu h<tir their iismd laenniiKj - - - 1

2. Cirrumstances irhich inll rebut the /jresii nipt 11)11 - - 8
/^-^ '.i. Direct extrinnic evidence of intention, irhen (idmisaible - 42

4. Presumption in favour of yrantee or benejicianj - - 48

5. Repmjnant clauses - - - - 53

G. Ej/jress prorisions exclude implied ones - - - - 54

7. Rides (IS to ^^ ftlsu deiiwnstrntio" - - - 56

8. Failure for uncerlainti/ and cliarities - - - - 58

9. Expressed intention assumed to be the aclmtl inteutiint - t>3



AuT. 1.- Words prcsinnrd tn liarc t/teir itsual
Mr(( iii/Kj.

The object of the court, in construing' a will or deed, is
to ascertain tiic intention liy rtadin;^ tlic wctrds ol' tin-
will or deed in tli<: sense in which the testator or the
parties used them. In doni;^' so it ;i)i|)lies the fol|()win<^'
principles :

1 1 ) 1 1, piesnmes that ordinary and tecliinc:il or lorei^n
words are used mi llieM° usual nieanni^ (tinlcHS

w. • 11



2 ]*ai:t I. — Gknkhal Principles.

Art. 1. tho presumption is rebutted as explained in

the next article). This presumption is
stronpjer in the case of deeds than in that
of wills, and in the case of technical legal
terms than in that of ordinary or foreign
words, or words of art.

(2) Where a word is us(!d in a clear and definite

meaning in one part of a will or deed then
the presumption is that it means the same
thing where, when used in another part, its
meaning is not clear.

(3) To ascertain the usual meaning of a word, the

court may, where it is an ordinary word, con-
sult a dictionary ; and where it is a technical
or foreign word, hear expert evidence, unless
the word is a technical term of English law.

Paracjraph (1).

Authorities " The first duty of the court expounding the will is to

on tins main j^j^^ertain what is the meaning of the words used by tlie
principle. _ T .

te.stator. It is very often said that the intention of the

testator is to be the guide : but the expression is oa|i;ibl('

of being misunderstood, and may lead to ;i speculation as

to what the testator may be su))])Osed to have iiiteiulod

to write, whereas the only and piopcr inipiiry is. What is

the meaning of that wliicli lie has actually writt(Ui ? That

which he has written is to be construed by every part

beius taken into consideration according to its frram-

matical construction, and the ordinary acceptance of the

words used, with the assistance of such jiarol evidence of

the surrounding circumstances as is admissible to place

the court in the jiosition of the testator" (^j^y Lord



Words Presumed to have theiu Usual Meaning. 3

Wensleydale in lunhh/ v. Fitzgerald (185^^), (! 11. L. Art. 1.

'• The true rule is that laid down by Vice-Chancellor
KiNDEKSLEY, in Low V. Smith (1856), 2 Jur. (n.s.) 344,
where he says, referring to Lord St. Leonards' deci.sion
in l>e Beaucoirx. De Beauvoir (1852), 3 H. L. Cas. 524 :
* There was no peculiarity in this particular question; it
was a mere application of what was the ordinary elementary
rule of construction, that for the purpose of construing
any word in auv will that ever was executed, such word
must receive its ordinary and primary meaning, unless the
court is satisfied that the testator intended to use it in a
secondarv ami less proper sense." Tin's ;i])]ilie'- to all wilN.
and not the less so when any })articular word used l»y a
testator is a technical word and a word of art. wiiich i>
less diflScult to construe" (per Jessel. M.K.. in ■Smil/i v.
Butrher (1878). 1(» eh. 1). 1 i;?. at p. 115).

•* AVhere language is used in a deed which in its primarv Ordinary ami

1 • 1 I . • • ' technical

meannig is unambiguous and m wlncli tliat meaning is not \v,„(is,
excluded by the context, and is sensible with reference to
the extrinsic circumstances in which the writer was pl:ice(|
at the time of writing, such primary meaning must be
taken, conclusively, to be that in which tiie writer used
it ; such nieaiiing. in that ease, conelusixcly states the
writer's int<'ntion. and no evidence is receivable to show
that in fact the writer used it in any other sense, or had
anv other intention. Tlii- ride, as 1 slate it, reipiire>
jterhajts two exjilanatorv observalions ; the lirst, that if
the language be tecdniieal or -eientilic, and it is used in a
matter relating to the art or xienee to wliieli it l)eion;;s.
its technical or >eientijie mu>t be con^ideicij it> |irimarv
meaning: the second, that l»eing 'sensible with refi-rence
to the (fxtrinsic ciremnstjinces ' i.s not ineani that tlie
extrinsic circumstances make if more or less rea>onab|e
or probable [(^^y//.) that t/u- firinKiri/ niritiiiiiii\ is what
the writer should havi; intended ; it is enough if tho.»e



4 Part I. — Generai, I'niNcirLEs.

Art. 1. (.•ircinustanccs do not exclude it. that is, dejti-i\-e the woi-d-
I'anTTl) **^ ''^^ reiisonahlo a}»})lieatiou aeeordine- to such |>rimary

meanine" {per CoLElUixiK, J., in Shoic v. Wilson (li542).

1> 01. k F. 355, at p. 525).

"■ \\ hen technical words or phrases ai'c made use ol'.
the strong i)resuniption is that the |)aity intend<Ml to use
theni accordino- to their correct technical nieanin;^. l)ut
this is not conclusive evidence that such was his real
meanin'i". It the technical nieaninii' is tound. in the
particular case, to be an erroneous guide to the real one.
leadine- to a meanine- contrary to what the party intended
to convey by it, it ceases to answer its purpose. The
deed may be drawn inartificially from ienorance or in-
advertence or oth(>r causes ; but still, it there is enough
clearly to convey int'orniation as to th<' real nieaiiin;^. the
object is attained. . . . ]\[any cases may doubtless be
found in which the technical meaning has been allowed
to ])revail. notwithsttuiding some appearance of a contrary
intent : but this has been where the manifestation of intent
was not deemed sufficient to get over the presumption
in favour of legal construction" {per Plumeu, M.H., in
Cholmondeleyx. Clinton (1820), 2 Jac. it AV. 1, at p. \)l).

Application The rule here stated as ajjplicable to deeds is eiiually

t'owUir^'^^ applicalde to wills, with this qualitication, that, both as
to ordinary and technical words, wills are interpreted less
strictly than deeds : In other words, less evidence is
sufficient to induce the court to hold that the words used
are not used in their primary meaning. The rule as to
ordinary words in wills is stated by Lord Herschell, in
Seale-JIaijne\. Jodrell, [18i»l] A. ('. 304, at p. 3()(;, in the
following terms : "I do not think there is any hard and fast
rule to be laid down, that in construing a will you are
alwavs to give any particular word that is used what is
called its primary meaning. A word which is used com-
monly in the English language in several senses, must be
interpreted according to that which, having regard to the



Words Presumed to have theih Usual Mf.amxo.

context and the whole provisions of the docinncnt which Art. 1.
you have to construe, appears to be the sense in which the Pa^^TTn
testator lias used it.'' And the rule as to technical words
is laid down l)y Lord Watson, in Hamilton v. Uitchie,
[1894] A. ('. :5i(), at p. ;U3, thus : - I do not say that a
testator who writes his own will, and is not a lawyer, is in
all cases to be held to have rightly apprehended the
meaning of technical words which he niav have used on
the occasion ot" making his will ; but I think it is j»lain
that a testator who uses words which have an intelligible
conventional meaning is not to l»e licdd as having used the
word^ with aiiv otlitT meaning unlcs- tlic context ot" the
instrument shows that he intended to do so."*

A clearer context, or stronger evidence from surrounding Tt-chnical

1 1 i • 4.\ ^ 4^1 .. \^%a-\ terms,

circumstances, is needed to convince the court tliat a °

t<'chnical h^gal term is not usi-d in its tcclniical scn>c than
to convince it that an ordinary word is not used in its
ordinary sense (Learh v. Jaij (1878), 'J I'll. D. 42). And
a still clearer context or still stronger evidence from sur-
rounding" circumstances is needed to convince it that a
technical legal term useil with referenc(> to real estate is
not used in its technical sense, than is needed to convince
it that a technical legal term useil witii reference to
personal c-tate i> not used in its technical <cnse (see per
.Iksskl. M.H.: .1///^'.^ V. Ilar/ord (187'J). 12 ('I.. D. f.ifl,
at p. »;:i.S). And sec /.'oy v. 7% (181*7), 21 hid. .\p|i. 7(1.

It -oiiK'tiiiH'^ JiajipfU-; that an oi'iliiiary word having a V""-"'
detiiutc ordinary meaning, where it occurs in a particular |^' ] ^*j.',.,„„
kin<l of legal doemnent. has (in eonsecpience of a rule of

law affecting the >uhject-nialte|- of the legal ilociinicllt )

a meaning larg<'r than. oi- ollMM\vi>e different from, the
ordinary meaning. The principle jiere applied i^ akin
to that ajiplicahle to woni- wiiich. in ci-rlain tradi-s or
districts, have a <ai>tomary meaning, with tin- difference
— that the ii*e of the woril in the legal sen-e is a point of
law and not mcrelv a point ol fact. Iv\trin>ic evidence is,



6 Part I. — GKNKii.vi, I'laxcirLKs.

Art. 1. tluM-clorc. not lU'ccs^iiry to >-li()\\ that it is used in its l(';ial
Pai^i). sense.

Illustmiinn .]/rrnH'aN V. Ihiiiie, [1891] A. i\ 40]. is an example of

of tfchiiual •I'll-

meaning the manner Hi wbicli a technical fule ol' law may induce

lunngupluM. j],^. court to read words in an instrument in a ditl'erent
sense t'rom tlieii' literal nieaniii;^. riiei"e. in a inariiir
])olicy. a ship was insui-cd in these terms: "It' the shiji
lierehy insnred shall eoine into eollision with any othei-
ship oi- Acssel. and the insured shall in eon-ecjuence thereof
become liahle to })ay and shall pay to thei)crsons interested
in such other ship or vessel any sum or sums of money,"
underwriters were to indemnify the insurees. While being
towed into a harbour, the tug of the shi[) insured collided
with another vessel, and the owners of the ship insured
became liable in consequence to pay a sum of money to
the owners of the damaged ship. The underwriters
contended that they were not liable to indenniifv the
insured against these payments, on the ground that the
collision was not between '"the ship hereb\- insui-ed." but
Ix'tween the tug of the ship insured and another vessel : —
/A/^/ that, since by a rule of law when a ship is bi'ing
towed the tug and the ship are regarded as one vessel,
the words in the policy covered a collision between the
tug and the other vessel, and the underwriters were liable.
Lord Watson, in delivering judgment, said, at ]>. 40t< :
" I admit the force of the appellant's argument that con-
tracts ought to be construed according to the primary or
natural meaning of the language in which the contracting
parties have chosen to express the terms of their mutual
agreement. But there are exceptions to the rule. One of
these is to be found in the case where th<' context affords
an interpretation different from the ordinai-y meaning of
the words : and another in the case where their conventional
meaning is not the same with their legal sense. In the
latter case, the meaning to be uttril/uted to the words of
the contract must depend upon the consideration whether,



Words Presumed to havk their Usual Meaning. 7

in in;ikin«;- it. the jjurties had or li;ul not the law in their Art. 1.

conteni])l;ition." „ 7i>

' Para. (1).

As to the construction of nicrcantih' instrunionts Mercantile
generally, see Leici.^ v. Afar.<hall (leS44), 7 Man. & G. '"'^^^"'^•"t^-
72iK at p. 745. And as to the interpretation of contracts
made by telegraphic code words, set' l\ili-h- v. Williams,
[1900] A. ('. 17G.

PAKA(iKAPH (2).

This is the rule laid down by Lindley, 31, li.. in Ju re
Birks, Kew/on v. ^irh, [1900] 1 Ch. 417, at p. 41^,
which, as he there says, is good sense, whether it is u
canon of construction or not. That case is itself a very
good example of it. There the instrument was a will, and
the word to be construed was " issue." The testator used
this word in the course of the will twelve several times.
In (deven of tiiese it clearlv was n<i'd in the sense of
children. In the twelfth case it might be read e<|u:ill\
well as meaning either " childr(;n "' or ""descendants"'
generally. The ( "oiirt of Appeal, reversing Kekkwich, J.,
held that in the twelfth case it iiiust be read as having the
same meaning as in the other (deven that is, children.
And ij'. Ill re Veini, Lindon v. /iii/runt, [1904] 2 Ch. ~r2,
cited iiij'rn, p. 'M).

rAKA(iKAl'll (H).

\\ hei'e the wcjrds useil are or<liiiar\- W(ird.-, the coiu't may Kvidcnii' a;-
a dictionary to ascertain ilieir meaning (Mathiir v. ,,f „.,„^|s.
f'ln-r/iiftos (I»)()()). ( 'ro. dae. 2n;; ). Where they are le.li-
liical words otln'i' than h-chnieal teim^ df Knglish law
or foreign word*, the e(»int i- entitled to receive e\|)ert
e\ideiice to aid it to airi\e at theic |irn|ie|- meaning or
their meaning in J'>n;ili-li (>//'<(> \. IIV/.v-*/* (1.S12),
'.' ('I. iV: F. ;').">.■». at p. .').').')). The ^aine ride applies to an
in"-! riMn«nl written in e\ |i|ier (Kill v. ( lutninr (iS.'ili),



Takt I. — ( Jknki; Al, PuiNtllM.KS.

•Art. 1. ;>;; |m.;i\. III.")), tir in :in\ other wav wliicli i- illi-Mililc or

I'nrn {.■<). ilK'Om|»n'll»'Il»iItlc to the cniil-t without tlic help ot >iic!i

rvitltMU'c {/union V. I Itti/n-nnl (l.s;;;>). L> Ail. i\: JOl. (llid ).

As to tt'c'hiiical h'^^al terms, it' they aic teims of Eii^iiish

hiw. MO e\tl'ill^ie e\ ideliee, save the decisions of lOnuH^h

courts, the dicta of recoeniscd h'iial text liooks, and
the ]»rat'tice of conveyancers (see In re Mt(tl<li/. Madd'/ v.
Madihi, [11)01] 2 eh. .Sl>(>). i^ a.hni>Hl.le as to tlieir
meaning' ( //* re AthiU. Athlll v. Alliill ( l.S.SOj, \{\ Ch. i ).
lMI. at ji. i'2?>) : l)Ut if they are terms of foreien law,
their meaiiine >liould he |)i-o\cd hv the evidence oi"
lawyers who |>ract.ise, or have j)ractised, in the country
of whose hiw the words are terms ( In re (JUjf'^s Truds,
[ltty2] 2 Ch. i-2\)).



Art. 2. — Circumstances lohich loill Rebut the Pre-
sumption that Words are Used in their usual
Meaning.

(1) Words in a will or deed will be held lu be used
in a sense different from their usual meaning under the
following circumstances :

(a) \\'li(n the context clearly shew-s that they are

used in a different sense.

(b) When they have no reasonable application to

the condition of things with reference to which
the will or deed was made, unless read in a
different sense, provided such sense is one
which they can reasonably bear.

(c) When being used in relation to a place or trade,

they have a customary sense different from



Circumstances Rebutting Presumption as to Meaning.

their ordinary meaning, unless there is some- Art. 2.
thins in the context or in the condition of
things with reference to \vhich the will or deed
was made to exclude the customary sense.

(d) ^\lien, being names or descriptive words, they

properly describe no object in the condition of
things with reference to which the will or
deed was made, and it is shewn that the
testator or parties habitually used them to
describe a certain object.

(e) AMien, being words applicable to persons or

things generally, they are used as additional
to words all of which are specifically applic-
able to persons or things belonging to one
definite class, and there is nothing to shew
that they were intended to apply to persons
or things not sui generis (i.e., belonging to
that class), not included under the specific
words.

(f ) When, being obscure, and occurring in an ancient

will or deed, they are shewn (by the conduct
of those acting in execution of the provisions
of the will or deed), to have been habitually
understood in a sense different from their
usual sense.

(2) Provided always, that if upon considering tlu;
whole will or deed and all the circuuist.inees williin
the preceding paragraphs which would alTect the
meaning of the words used, the eouil ciin cieiirly
ascertain the intention of tin- testator or tin' parties,



10



1'aKT I. (JkNKK.M. PltlN'CIl'LKS.



Art. 2. tli:it iiiti'iitidii will (Ictrrmiiu' the sense in which any
piirliciihiv words arc to be read ; and if it be impossible
to reconcile any particular words with that intention,
the court will reject them ; and if any particular words
necessary to express fully or accnrately that intention
arr wanting', the court will su[)]ily ihem.

(H) All relevant evidence rt.s tu circumfitaiic.es vithui
t/w preceding paragraplis which would affect the
meaning of the words used (but not direct evidence of
intention) will be admitted by the court, w'hether such
evidence consist of facts appearing on the face of the
will or deed, or of facts altogether extrinsic to it.



Priiiiilfacii
iiicaning
affected hy
context.



Illustration
of meaning
affectotl by
c<»ntext.



Paragraph (1) (a).

In construing any particular phrase or ex[)ression in a
will or deed, the court does not confine its attention to that
l)articular phrase or expression. It construes it not as an
isolated statement, but as part of the whole instrument,
and gives it the meaning wliicli will render it consistent
with the rest of the instrument, even though that meaning
In- not precisely the primary meaning of the expression
or })hrase in (|uesti()n. In the words of Lord Ellen-
IJOHOUGH, ('..)., in Jiarton v. Fitzijerald (1812), 15 East,
oiJO, at J). .0-41, " It is the true rule of construction that the
sense and meaning of the parties in any ]iarticular jKirt of
an instrument may he collected e.c tuUeri'ilentilni.^ cf ro,i-
seijiieidHius ; every part of it may be brought into action
in order to eoUe^'t t'roni the wliole one unifoi'in and
consistent meaning, if that may be done." And see
MrCoican V. Baine, [l«yi] A. C. ■401, at p. -406, and

In a settlement made Ix'fore marriage, there was a
covenant to settle on certain trusts all the real and personal



Meaning Affected bv Oontkxt. 11

property, to wliirh the Avit'e or the hushand *' in her ri;^ht Art. 2.

at anv time darin<i her now intended coverture ;«hall become p^ra. (1) (a).

entitled (except 'jewels ' and other articles of a like kind)

which it is hereby declared shall belong to the •wile"

for her separat(> use.'* The trusts upon which the property

to be settled were to be held, included a trust to sell and

hold the i)urcliase moneys on the same trusts as those

declarctl ot" the personal estate of or to whic-Ii rlu' wif<>

'■ now is or she or ' the husband ' in her right shall l)ecome

possessed or entitled as aforesaid."' The wife at the time

of tlie marriage possessed certain jewels, and after tlu'

marriage the question arose whether these jewels were

included in the settlement, and therefore the wife's

separate property under the exception tiiereiu made as to

jewels, or whether they were not so included, and therefore

were the husband's property /?nv mariti. The court held

that though, primarily, only property coming to the wife

after coverture would seem to be included in the covenant

to settle, still, when that covenant was read in conjunction

with the suljsequcnt trust (which in terms ap[)lied to both

the jirojx-rty she possessed at the marriage, and that sub-

se(piently accruing to her), it was evident that the covenant

was intended to extend to all the wife's pro|»erty, whether

belonging to her beiure marriage or aeciuing to her alter

if : aiifl conseipiently that the jew(ds in (piestion were

lii-r ^<']»arate projx'itN' ini(h'r the settlement. Lord

Skijioksk. L.( '., ill delivering judgment, said : " if tin-

W(jrds ar<- callable of the sense of which I think they are

cajtaltle . . . the (juestioii for your lordships i>, whether

that i- th'' true sense of the woiiU in tlii- -cti Irniciil : and



Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 6 of 42)