THE AMERICAN AND ENGLISH ENCYCLOPÆDIA OF LAW. LEAST (See AT; BEFORE).-"At least" is defined to mean "at the lowest estimate, or at the smallest concession or claim. In the smallest or lowest degree. At the smallest number, or at the lowest estimate." 1 When an act is required by statute to be done so many days at least before a given event, both the day of the act and that of the event must be excluded in reckoning the time.2 But this rule is not without exceptions.3 1. Hoffman v. Clark Co., 61 Wis. 7; citing Webst. Imp. & Worcest. Dict. 2. Reg. v. Justices of Shropshire, 8 Ad. & El. 173; In re Prangley, 4 Ad. & El. 781; Norton v. Salisbury, 4 C. B. 37; Reg. v. Aberdare Canal Co., 14 Q.B. 867. Where notices of meetings were required to be given a certain number of days "at least" before the meeting. Mitchell v. Foster, 12 Ad. & El. 472. Where a summons had to be served "ten days at least" before the time of hearing. Zouch v. Empsey, 4 B. & Ald. 522; Ward v. Walters, 63 Wis. 39. In Early v. Doe, 16 How. (U. S.) 610, where a notice was required to be published in a newspaper "once in each week for at least twelve successive weeks," it was held that "twelve full weeks" were necessary. The court said: "We do not doubt if the statute had been 'once in each week for twelve successive weeks,' a previous notice of the particular day of sale having been given to the owner of the property, that it might very well be concluded that twelve notices in different successive weeks, though the last insertion of the notice for sale was on the day of sale, was sufficient. But when the legislature has used the words 'for at least twelve successive weeks,' we cannot 13 C. of L.-1 ว doubt that the words 'at least,' as they would do in common parlance, mean a duration of the time that there is in twelve successive weeks or eightyfour days. Every statute must be construed from the words in it, and that construction is to be preferred which gives to all of them an operative meaning. Our construction of the statute under review gives to every word its meaning. The other leaves out of consideration the words 'for at least,' which mean a space of time comprehended within twelve successive weeks eighty-four days." or 3. In State v. Gasconade Co. Ct., 33 Mo. 102, in deciding on a statute that required an oath to be filed "at least five days before the day of election," the court said: "If the day on which the oath was filed be counted, then it was filed five days before the day of election. In the computation of time it is laid down, generally, that where the computation is to be made from ar act done, the day when such act was done is included. But it will be ex cluded whenever such exclusion will prevent a forfeiture. Here to exclude the day on which the oath was filed would cause a forfeiture. We think that day should be counted." Under a provision in a city charter As to the degree of discretion allowed, see note 1. LEAVE (See also LEFT)." Leaving" is a word that may be construed in its primary sense as leaving on the decease of the person to whom the word applies; but it has been construed as "having" rather than that a child shall be deprived of a vested interest which seems to have been made as a provision for it.2 requiring every resolution ordering work on the streets to lie over "at least four weeks after its introduction," a resolution introduced on Monday may properly be acted upon on the fourth Monday thereafter. Wright v. Forrestal, 65 Wis. 341. "The question was presented to the council when the four weeks expired, so that they might act on the same. They evidently construed it as men ordinarily would, that a week was the period of time extending from Monday of one week to Monday of the next week following, and not until Tuesday of such week, and that the resolution, if introduced on Monday, had lain over four weeks when the fourth Monday thereafter had arrived, and that they were at liberty to act upon it then. This, we think, is the rational construction of the act, and clearly within the intention of the legislature." A building was let by a written agreement stating that C had taken it "from the thirtieth day of September." "The tenancy is for one year, commenc ing on the thirtieth day of September instant." Centered at noon on that day and quitted at 4 P.M. on September 29th, following. Held, that he had gained a settlement by renting and occupying a tenement "for the term of one whole year at the least." Reg. v. Inhab. of St. Mary, 1 El. & Bl. 816. WIGHTMAN, J., said: "There is nothing to take this case out of the general rule, unless the words 'one whole year at the least,' have that effect. But that phrase does not mean more than the phrase 'one whole year,' which we find in Stat. and as to the last mentioned statute it has been expressly decided that a fraction of a day is not to be regarded in computing the year of hiring and service. Really the language of the two statutes is practically identical, and the construction of the one determines that of the other." 1. Where a list of unredeemed lands sold for taxes was required to be published "at least six months before the expiration of the time limited for re deeming," a county clerk was held to have authority in his discretion to commence the publication sixteen months before that period. Hoffman v. Clark Co., 61 Wis. 5. "We cannot say that the clerk had no legal authority to make such an early publication. On the contrary, we quite agree with the learned circuit court in the view that the legislature has left the time of making or commencing the publication, within certain limits, to the judgment and discretion of the county clerk, and that the courts cannot review the exercise of that discretion." A grant of a cartway "eight feet wide at least," was held to entitle the grantee to more than eight feet if necessary for its use as a cartway. Roberts v. Wilcock, 8 W. & S. (Pa.) 464. Where an act required that every planter should have a fence "at least five feet high," it was held that every part of the fence must be that high, and that although it was shown that cattle had passed a part of the fence five feet high, the plaintiff could not recover for the trespass, if any other portion were less in height, the law presuming that the cattle were first tempted to break into the enclosure by reason of the lowness of other parts of the fence. Polk v. Lane, 4 Yerg. (Tenn.) 36. 2. White . Hill, L. R., 4 E. Q. Cas. 270. And see Ex parte Hooper, I Drew 64, where "leaving" was held equivalent to "having." Also In re Thompson's Trust, 5 De G. & Sm. 667; Kennedy v. Sedgwick, 3 K. & J. 540; Marshall v. Hill, 2 M. & S. 608; Bryden v. Willett, L. R., 7 Eq. Cas. 472; In re Brown's Trust, L. R.. 16 Eq. Cas. 239: Du Bois v. Ray, 35 N. Y. 162; Maitland v. Chalie, & Mad 243. In Treharne v. Layton, L. R., 10 Q. B. 459, it is said: "We think that the authorities applicable to this case are so clear and so strong that we should not be justified in saying that they are wrong. The position they lay down is that where an estate is vested in children after a gift to a parent, then the gift over in case of the parent dying Definition. LEAVE. without leaving issue must be read having had no issue,' in order to carry into effect the intention of the testator." In White . Hight, 12 Ch. D. 751, the testator devised real estate to his granddaughter absolutely, and "after her decease, without leaving any issue" over. The granddaughter married and had a child. Held that, upon the birth of a child. the granddaughter's interest became indefeasible. It was But in In re Ball, 36 Ch. D. 508, a testator bequeathed personal estate on trust after the death of A for B, and in case B died without leaving issue male for C. B died in the lifetime of A, having had only one child who died an infant in his father's lifetime. held that the gift over to C took effect. The court said: "Now the principle of those decisions is that the court will read the words 'without leaving' as equivalent to 'without having had,' if the result of so doing is to make the whole instrument consistent, to make a gift over fit in with the intention of the testator as previously expressed, and avoid divesting a previously vested gift. But unless that result is attained, the reason for the modification of the language fails, and I have been unable to find any case except White v. Hight, in which the effect of the construction has been not to avoid divesting a vested gift, but to leave a vested gift still liable to be divested, though only in a different event from that in which the divesting would have taken place if the word literally. construed 'leaving' were If the latter course, that is, construing the word 'leaving' literally, is adopted in the present case, the absolute interest of [B] would be divested by his death without leaving issue then living. If the word 'leaving' is treated as equivalent to 'having had' the abso[B] would be lute interest of divested by his death without having had any child. Whichever view is adopted the will clearly contemplates the divesting in some event of the pre[B]. I viously vested gift to find . no case except White v. Hight, in which the word 'leaving' is read as having had' with the result merely of altering the event upon which the divesting of a gift previously vested is to take place." In re Ball was sustained on appeal in 40 Ch. D. 11 (59 L. T., N. S. 8o1), the court saying of the earlier cases: "In my opinion the principle of those cases White v. In In re Hamlet, 38 Ch. D. 183; s. c., Upon the daughter's over. The result of these decisions is that these words in a will, if the case is not a case of portions to children, to whom the testator was in loco parentis, to their grammatical meaning, which would receive a construction according would exclude a child who attained twenty-one and died in the lifetime of or in a will where the testator was in the tenant for life. But in a settlement loco parentis to the children intended to be benefited, the gift over might either be differently construed or disregarded." See also Armstrong v. Armstrong, 21 L. R., I. 114, where In re Ball was followed, and White v. Hight criticised; which was also done in Clay v. Coles, 57 L. T., N. S. 682. The issue of children who might be dead "leaving issue," held to take 3 The words "leave," "leaving," have been held sufficient to restrain the general import of the term "issue" to those living at the death of the first taker, so as to give effect to bequests over.1 But this rule has been applied to personalty rather than to realty, though the distinction has been questioned.3 whether they survive their parent or not in In re Smith's Trusts, 7 Ch. D. 665. ປ. 1. Roper on Leg. 1551; Forth v. Chapman, P. Wms. 664; Read Snell, 2 Atk. 642; Lampley v. Blower, 3 Atk. 397; Wallington v. Taylor, 1 Sax. (N. J.) 314; Goodtitle v. Regden, 2 T. R. 720; Beresford v. Elliott's Exrs., 1 Dessaus. (S. Car.) 183. 2. In Forth v. Chapman, 1 P. Wms. 667, it is said: "As to the freehold the construction should be, if William or Walter died without issue generally, by which there might be at any time a failure of issue; and with respect to the leasehold, that the same words should be intended to signify their dying without leaving issue at their death The different clauses would have the different constructions above mentioned to make both the devises good; and it was reasonable it should be so, ut res magis valeat quam pereat." And see Crooke v. Devandes, 9 Ves. 197; Dendem Geering v. Shenton, 2 Chit. 662, where LORD MANSFIELD says: "In the case of land, there is no instance where the words 'not leaving issue' are confined to having issue at his death, but it would be otherwise of personalty, for the sake of intention, for that cannot take place but upon such a supposition." See also Eichelberger v. Barnitz, 9 Watts (Pa.) 447; Rathbone v. Dyckman, 3 Paige (N. Y.) 30; Biscoe v. Biscoe, 6 Gill & J. (Md.) 236; Tongue's Lessee v. Nutwell, 13 Md. 425; Allender's Lessee v. Sussan, 33 Md. 11; Maryck v. Vanderhurst, Bail. Eq. (S. Car) 48; Newkirk v. Hawes, Jones Eq. (N. Car.) 265; Newnan v. Miller, 7 Jones L. (N. Car.) 516; Hawley V. Northampton, 8 Mass. 38; Whitford v. Armstrong, 9 R. I. 394; Miller 7. Macomb, 26 Wend. (N. Y.) 229; Foley v. Foley, 17 Hun (N. Y.) 235; Ferris v. Gibson, 4 Edw. Ch. (N. Y.) 707; Moorehouse v. Cotheal, 1 Zabr. (N. J.) 480; Chetwood v. Winston, 40 N. J. L. 337; Drummond v. Drummond, 26 N. J. Eq. 234; Still v. Speer, 3 Grant (Pa.) 306; Wynn v. Story, 38 Pa. St. 166; Middlewarth's Admr. v. Blackmore, 74 Pa. St. 414; Newtor. v. Griffith, 1 Harr. & Gill (Md.) III; Usilton v. Usilton, 3 Md. Ch. 36; Robards v. Jones, 4 Ired. (N. Car.) 53; Miller v. Usilliams, 2 Dev. & Bat. (N. Car.) 500; Perry v. Logan, 5 Rich. Eq. (S. Car.) 202; Robert v. West, 15 Ga. 123; Moore v. Howe, 4 Monr. (Ky.) 199. 3. In Roe v. Jeffery, 7 Term 595, LORD KENYON said that "the distinction taken in Forth v. Chapman, that the very same words in the same clause in a will should receive one construction as applied to one species of property and another construction as applied to another, was not reconcilable with reason; but that if it had become a settled rule of property it might be dangerous to overturn it." The case was decided, however, on another point. See also Porter v. Bradley, 3 Term 146. The application of the rule in this country was questioned in Hall v. Chaffee, 14 N. H. 215; Downing v. Wherrin, 19 N. H. 89. But in Ladd v. Harvey, 21 N. H. 526, in referring to the former case, the court said: "Although in that case some question was made as to the applicability of the doctrine here, still it will be better that suitors shall not be surprised by another rule of construction, and one different from that found in the books to be generally recognized in England and America." In Bethea's Exr. v. Smith, 40 Ala. 420, it is said: "In this case we see no reason why any distinction should be made as to the vesting of the legal title between the real estate devised and the personalty bequeathed by the sixth clause of the will. If the one vests in the ultimate limitee, there is no reason why the other should not do so likewise. If this limitation of personalty was void at the ancient common law, and has only in modern times been upheld upon the analogies to such limitations of realty, we see no reason and are not aware of any principle, which would forbid the application of the rule with respect to the vesting of the legal title in the limitations of realty to such limitations of personalty. |