furtherance of the objects of marine insurance, and may have the effect of extending a reasonable indemnity to many cases not distinctly covered by the special words: they are entitled to be considered as material and operative words, and to have the due effect assigned to them in the construction of this instrument: and this will be done by allowing them to comprehend and cover other cases of marine damage of the like kind with those which are specially enumerated, and occasioned by similar causes; that is to say, the meaning of the general words may be ascertained by referring to the preceding special words.1

That the exposition of every will must be founded on the whole instrument, and be made ex antecedentibus et consequentibus, is, observes Lord Ellenborough, one of the most prominent canons of testamentary construction; and, therefore, in this department of legal investigation, the maxim noscitur à sociis is necessarily of very frequent practical application; yet where between the parts there is no connexion by grammatical construction, or by some reference, express or implied, and where there is nothing in the will declarative of some common purpose from which it may be inferred that the testator

meant a similar disposition by *such different parts, though [*453] he may have varied his phrase or expressed himself imperfectly, the Court cannot go into one part of a will to determine the meaning of another, perfect in itself, and without ambiguity, and not militating with any other provision respecting the same subjectmatter, notwithstanding that a more probable disposition for the testator to have made may be collected from such assisted construction. For instance, if a man should devise generally his lands, after payment of his debts and legacies, his trust estates would not pass; for, in such a case, noscitur à sociis what the land is which the testator intended to pass by such devise: it is clear he could only mean lands which he could subject to the payment of his debts and legacies. But, from a testator having given to persons standing in a certain

1 See the judgment, Cullen v. Butler, 5 M. & S. 465, where it was held, that plaintiff might recover on a special count, the ship having been sunk owing to another ship's firing upon her through mistake. Phillips v. Barber, 5 B. & Ald. 161; E. C. L. R. 7; Devaux v. J'Anson, 5 B. & C. 519; E. C. L. R. 11. In Borradaile v. Hunter, 5 Scott, N. R. 445, 446, this maxim is applied by Tindal, C. J. (diss. from the rest of the Court), to explain a proviso in a policy of life insurance. In Clift v. Schwabe, 3 C. B. 437; E. C. L. R. 54, the same maxim was likewise applied in similar circumstances.

2 Roe v. Read, 8 T. R. 118; 1 Jarman on Wills, 645.

degree of relationship to him a fee-simple in certain land, no conclusion which can be relied on can be drawn, that his intention was to give to other persons standing in the same rank of proximity the same interest in another part of the same land; and where, moreover, the words of the two devises are different, the more natural conclusion is, that, as the testator's expressions are varied, they were altered, because his intention in both cases was not the same."

In a very recent case a testator, after disposing of certain real estate, gave all the rest of his "household furniture, books, linen, and china (except as hereinafter mentioned), goods, chattels, estate, and effects, of what nature or kind soever, and wheresoever the same shall be at the time of my death," to certain executors in trust to sell; and on a special *case stated for the opinion of the Court, it was held, that the testator's real estate did not pass [*454] by the above words; for although the word "estate" is sufficiently comprehensive to include real property, yet this prima facie meaning may be cut down or explained by the context, and where the word in question is associated with other words indicating personalty only. The Court observed, that, in the case before them, the word "estate" could not have been used as nomen generalissimum, because it appeared from other portions of the will not to have been used as including all the personal property of the testator; that it was, consequently, necessary to give it some more limited meaning than that which would primâ facie have been assigned to it, and that such meaning could only be ascertained by applying the maxim noscitur à sociis, and holding that the word had reference exclusively to matters of the same nature as those whereto the words related with which it was associated.2

In addition to the preceding general observations, a few instances may be referred to as illustrating the distinction which exists between the conjunctive and disjunctive, and which it is so essential to observe whenever it is necessary to assign a construction to a testamentary instrument.

A leasehold estate for a long term was devised after the death of A. to B. for life, remainder to his child or children by any woman

I Judgment, Right v. Compton, 9 East, 272, 273; 11 East, 223; Hay v. The Earl of Coventry, 3 T. R. 83; per Coltman, J., Knight v. Selby, 3 Scott, N. R. 409, 417; Argument, 1 M. & S. 333; E. C. L. R. 28.

2 Sanderson v. Dobson, 1 Exch. 141; Doe d. Haw v. Earles, 15 M. & W. 450.(*) See, also, Vandeleur v. Vandeleur, 3 Cl. & Fin. 98, where the maxim is differently applied.

whom he should marry, and his or their executors, &c., for ever, upon condition, that, in case the said B. should die "an infant, unmarried, and without issue," the premises should go over to his

father and his three *other children, share and share alike, [*455] and their heirs, executors, &c. :-Held, that the devise over depended upon one contingency, viz., B.'s dying an infant, attended with two qualifications, viz., his dying without leaving a wife surviving him, or dying childless; and that the devise over could only take effect in case B. died in his minority, leaving neither wife nor child; and it was observed by Lord Ellenborough, in delivering judgment, that, if the condition has been, "if he dies an infant, or unmarried, or without issue," that is to say, in the disjunctive throughout, the rule would have applied, in disjunctivis sufficit alteram partem esse veram ;1 and, consequently, that if B. had died in his infancy, leaving children, the estate would have gone over to B.'s father and his children, to the prejudice of B.'s own issue. According to the same rule of grammar, also, where a condition inserted in a deed consists of two parts in the conjunctive, both must be performed, but otherwise where the condition is in the disjunctive; and where a condition or limitation is both in the conjunctive and disjunctive, the latter shall be taken to refer to the whole; as, if a lease be made to husband and wife for the term of twenty-one years, "if the husband and wife or any child between them shall so long live," and the wife dies without issue, the lease shall, nevertheless, continue during the life of the husband, because the above condition shall be construed throughout in the disjunctive.3

In the construction of statutes, likewise, the rule noscitur à sociis is very frequently applied, the meaning of a word, *and, con[*456] sequently, the intention of the legislature, being ascertained

by reference to the context, and by considering whether the word in question and the surrounding words are, in fact, ejusdem generis, and referable to the same subject-matter. As it would, however, be useless to cite additional cases for the purpose of illustration merely, or with a view of facilitating the application of the rule in question,

1 Co. Litt. 225, a; 10 Rep. 58; Wing. Max., p. 13; D. 50, 17, 110, ¿ 3.

2 Doe d. Everett v. Cooke, 7 East, 272. As to changing the copulative into the disjunctive, see 1 Jarman on Wills, 443 et seq.

3 Co. Litt. 225, a; Shep. Touch. 138, 139. See, also, Burgess v. Brachar, 2 Ld. Raym. 1366.

4 Per Coleridge, J., Cooper v. Harding, 7 Q. B. 941; E. C. L. R. 53; Judgment, Stephens v. Taprell, 2 Curt. 465.

we shall conclude these remarks with observing, that the three rules or canons of construction with which we have commenced this chapter are so intimately connected together, that they should, perhaps, in strictness rather have been considered under one head than treated separately, and that they must always be kept in view collectively when the practitioner applies himself to the interpretation of a doubtful instrument.

VERBA CHARTARUM FORTIUS ACCIPIUNTUR CONTRA PROFERENTEM. (Co. Litt. 36, a.)

The words of an instrument shall be taken most strongly against the party employing them. It is a general rule, that the words in a deed are to be construed most strongly contra proferentem,-regard being had, however, to the apparent intention of the parties, as collected from the whole context of the instrument;' for as observed by Mr. Justice Blackstone, the principle of *self-preservation will make men suffi[*457] ciently careful not to prejudice their own interest by the too extensive meaning of their words, and hereby all manner of deceit in any grant is avoided; for men would always affect ambiguous and intricate expressions, provided they were afterwards at liberty to put their own constructions upon them. Moreover, the adoption of this rule puts an end to many questions and doubts which would otherwise arise as to the meaning and intention of the parties, which, in the absence of it, might be differently construed by different judges; and it tends to quiet possession, by taking acts and conveyances executed beneficially for the grantees and possessors.3

We may remark, also, that the general rule above stated has been held to apply still more strongly to a deed-poll' than to an indenture, because in the former case the words are those of the grantor only; in the latter, the grantee has given his consent to them, and they must be considered as the words of both parties. But, though

1 Per Lord Kenyon, C. J., Barrett v. Duke of Bedford, 8 T. R. 605; per Lord Eldon, C. J., 2 B. & P. 22; per Bayley, J., 15 East, 546; per Park, J., 1 B. & B. 335; E. C. L. R. 5; Miller v. Mainwaring, Cro. Car. 400; 3 Ves. jun. 48; Co. Litt. 183, a; Noy, Max., 9th ed., p. 48.

142

22 Bla. Com. 380. See Saunderson v. Piper, 5 Bing. N. C. 425; E. C. L. R. 35; Reynolds v. Barford, 8 Scott, N. R. 228, 239.

3 Bac. Max., reg. 3, which treats of the general rule.

4 See stats. 8 & 9 Vict. c. 106, s. 5; 7 & 8 Vict. c. 76, s. 11.

52 Bla. Com. 380; Plowd. 134; Shep. Touch., by Preston, 88, n. (81).

a deed-poll is to be construed against the grantor, the Court will not add words to it, nor give it a meaning contradictory to its language.1 If, then, a tenant in fee-simple grants to any one an estate *for life generally, this shall be construed to mean an estate [*458] for the life of the grantee, because an estate for a man's own life is higher than for the life of another.2

But if tenant for life leases to another for life, without specifying for whose life, this shall be taken to be a lease for the lessor's own life; for, this is the greatest estate which it is in his power to grant.3 And, as a general rule, it appears clear, that, if a doubt arise as to the construction of a lease between the lessor and the lessee, the lease must be construed most beneficially for the latter.4

5

In like manner, if two tenants in common grant a rent of 108., this is several, and the grantee shall have 10s. from each; but if they make a lease, and reserve 108., they shall have only 108. between them. So, it is a general rule of construction, that, where there is any reasonable degree of doubt as to the meaning of an exception in a lease, the words of the exception, being the words of the lessor, are to be taken most favourably for the lessee, and against the lessor; and where a deed may enure to divers purposes, he to whom the deed is made shall have election which way to take it, and he shall take it that way which shall be most to his advantage. But the instrument ought, in such a case, if pleaded, to be stated according to its legal effect, in that way which it is intended to have it operate.

*According to the principle above laid down, it was held, [*459] that leasehold lands passed by the conveyance of the freehold, "and of all lands or meadows to the said messuage or mill belonging,

1 Per Williams, J., Doe d. Myatt v. St. Helen's Railway Company, 2 Q. B. 373; E. C. L. R. 42. In an action for slander or libel, also, the words must be construed according to common sense and their ordinary meaning, and as they would be understood by the hearers or readers; but the doctrine that doubtful words are to be taken in mitiori sensu, has long been exploded: Argument, Hughes v. Rees, 4 M. & W. 206;(*) 2 Selw., N. P., 10th ed. 1245, 1246. See Poland v. Mason, Hobart, 305; Clark v. Gilbert, Id. 331; Wing. Max., p. 703.

2 Co. Litt. 42, a; 2 Bla. Com. 380; Plowd. 156; Finch, Law, 63.

3 Finch, Law, 55, 56. See, also, Id. 60.

4 Dunn v. Spurrier, 3 B. & P. 399, 403, where various authorities are cited. The maxim in the text is also considered at some length in the American Jurist, No. 47, p. 11.

55 Rep. 7; Plowd. 140; Co. Litt. 197, a, 267, b.

Per Bayley, J., Bullen v. Denning, 5 B. & C. 847; E. C. L. R. 11.

7 Shep. Touch. 83; cited, 8 Bing. 106; E. C. L. R. 21.

82 Smith L. C. 295, and cases there cited.