Where a Person has a Power and an Interest.

549

cuted by a person who has a power to appoint as well as an interest which might be the subject of ordinary conveyance. Generally speaking, such an instrument, when it is equivocal, will be construed, according to the ordinary rules, to be an exercise of the power or a conveyance, as the one or the other will give it validity according to the apparent object and intention (a). Words of conveyance may operate as words of appointment; on the other hand, the words "direct," "limit," &c., may be sufficient to pass an interest (b). Where a person has a power to limit uses, and no power to convey, if he convey or devise and the required circumstances as to witnesses, &c., are observed, the conveyance will enure as a limitation of the use, as otherwise it would be void (c). And an instrument may operate as a revocation, though there be in it no reference to the power to revoke, if it can only operate in this way (d).

The statutory provisions in regard to the execution of powers contained in the late Act (1 Vict. 26), have been mentioned in a former page (e).

The doctrine of Estoppel by deed or other writing (ƒ), depends not unfrequently on construction, and therefore may not here be quite out of place. It is a rule of law, that a person shall always be estopped by his own deed; that is, he shall not be allowed to aver anything in contradiction to what he has once so solemnly and deliberately avowed (g). But it is also a rule, that every estoppel must be reciprocal, that [*550] is, must bind both parties (h); and this is the reason that regularly a stranger shall neither take advantage of, nor be bound by, an estoppel. Privies in blood, as the heir; privies in estate, as the feoffee, lessee, &c.; privies in law, as the lord by escheat, tenant by the curtesy, tenant in dower, the incumbent of a benefice, and others that come in by act of law or in the post, shall be bound by, and take advantage of, estop

(a) Cox v. Chamberlain, 4 Ves. 631. See on this subject, Roach v. Wadham, 6 East, 305; and Sir Edward Sugden's observations on that and other cases, 1 Sugd. on Powers, 451-8. Also Chance on Powers, 106-12; and the observations in Byth. & Jarm. Convey. by Sweet, ii. p. 493-5. The case of Cox v. Chamberlain, it may be observed, though by anticipation, was the foundation of the Vice-Chancellor of England's decisions in the cases of Barrymore v. Ellis, 8 Simons, 1, on a Deed, and Brown v. Bamford, 11 Simons, 131, on a Will. Those decisions were to this effect-Where leasehold and other personal property was vested in trustees, the rents, interest, &c., to be paid to such persons, &c., and in such manner as a married woman should appoint, but not by way of anticipation, and in default of such appointment for her sole and separate use, her receipts to be a sufficient discharge (but without adding that no other receipts should be a sufficient discharge to the trustees); in the one case an assignment, in the other, a paper writing purporting to be a guarantee was held to operate as a

disposition of the rents, &c., under the general direction to pay those rents, &c., to her separate use, which standing alone would have given to her an absolute power of disposition. The latter case has been appealed from, but judgment is not yet given.

(b) 2 Sanders on Uses, 4th ed. 40; Chance on Pow. ii. 112.

(c) Sir E. Clere's case, 6 Rep. 17 b; 1 Sugd. on Powers, 374; other cases are there referred to; and see the Dict. of Lord Eldon, Wykham v. Wykham, 18 Ves. 419.

(d) Scrope's case, 10 Rep. 143 b; 1 Sugd. on Powers, 374; et v. ib. 375. (e) V. sup. p. 473.

(f) Estoppels are by matter of record, by deed, and en pais. The doctrine is very ably and clearly discussed by the late lamented Mr. Smith, Leading Cases, ii. 437, et seq.

(g) Plowd. 434; 2 Bla. Comm. 295; and see Sweet's note, p. 290, and cases there cited; and Smith's Leading Cases, ii. 456460, where the general doctrines are stated. (h) Co. Litt. 352.

pels (a). Every estoppel, because it concludeth a man to allege the truth, must be certain to every intent, and ought to be by precise affirmation, and not to be taken by argument or inference (b). Lord Coke lays it down," that a recital doth not conclude, because it is no direct affirmation;" but there are recitals to which this reason has not been considered applicable, and, according to the modern doctrine, not only is a deed conclusive on the party executing it, as to the very point intended to be effected by the instrument, but also as to facts particularly and certainly recited in it (c)-a general recital is not an estoppel, a recital of a particular fact is (d). A recital of a former deed only amounts to an admission of so much as is recited, and in order to introduce the rest, strict proof is requisite (e).

The modern doctrine on the subject of Estoppel generally, is thus stated by Lord Denman, C. J.: "Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time” (ƒ).

(a) Co. Litt. 352 b; Smith's Lead. Ca. ii. 442.

(b) Ibid. 303 a, 352 b; other rules are there mentioned as applicable to the doctrine of Estoppels generally; and see Smith's Lead. Ca. ii. 358.

(c) Bowman v. Taylor, 2 Ad. & Ell. 278; 4 Nev. & M. 264; and see the other cases in the notes to Doe v. Oliver, Smith's Lead.

Ca. ii. 456, 7.

(d) Notes on Duchess of Kingston's case, Smith's Lead. Ca. ii. 457, where the modern authorities are collected. See particularly Bowman v. Taylor, ubi sup.

(e) Gillett v. Abbott, 7 Ad. & Ell. 786; Smith's Lead. Ca. ii. 437.

(f) Pickard v. Scarr, 6 Ad. & Ell. 475.

ADDITIONAL NOTE TO SECTION I. CHAPTER VIII., sup. p. 534, 5. How far the legal effect of technical words in a deed, which standing alone will admit of but one construction, may be affected or controlled by the intention to be collected from the recitals and the general scope of the deed, was much discussed in *the important case of the Marquis Cholmondeley v. Lord Clinton, first before [*551] Sir William Grant (1), then before the Court of King's Bench (2), and after

wards before Sir Thomas Plumer (3).

The judgments delivered in this case have been referred to, but they are so important in reference to the doctrine which has just been discussed, and generally to the construction of deeds, that they deserve more particular notice. The question turned on the construction of the ultimate limitation "to the use of the right heirs of Samuel Rolle," on failure of the issue of the settlor, and in default of appointment by him. It was contended on the part of the plaintiff that it must be held to designate the right heir at the date of the deed, the settlor being such right heir (4), in other words that the remainder was vested. On the part of the defendant it was contended. that the person who should be the right heir of S. Rolle, at the period of the determination of the previous estates, was the person to whom, under the circumstances, the description should be applied-in other words, that it was a contingent remainder. The legal inference and presumption seems to have been admitted to be in favor of the construction contended for by the plaintiffs (5); the question, as stated by Sir T. Plumer, was, whether that presumption was rebutted by clear and sufficient proof of a contrary intention. Sir William Grant, and three of the judges of the King's Bench, namely, Abbott, C. J., Holroyd, and Best, justices, were of opinion with the plaintiffs;

(1) 2 Merivale, 171.

(2) 2 Barn & Ald. 625.

(3) 2 Jac. & W. 1.

(4) It appeared that the settlor knew this to be the fact, 2 Jac. & W. 120.

(5) 2 J. & W. 117.

Cholmondeley v. Clinton.

551

they considered that the words themselves were unambiguous, and that they could have but one construction. That Lord Orford, the settlor, had the intention which was ascribed to him, namely, that the estate, on failure of the preceding limitations, and in default of appointment, should go in the line of the settlor's mother, there could, said Sir William Grant, be no reasonable doubt, and he particularly referred to the recitals as evidencing that intention; and it is clear, he added, that if the limitation operates in the way contended for by the plaintiffs, that intention will be wholly defeated; but the question was, he said, whether the court could mould the words of the deed, so as to carry that intention into execution. He admitted that courts ought to expound deeds, as well as wills, according to the intention of the maker, but it had never been said that a court was so to frame or alter a deed, as may best effectuate the maker's intention; the party is left to execute his own purpose in his own way; he may execute it unskillfully and insufficiently, but if the dispositions which he makes are clear and unambiguous, the court cannot alter them merely because they are ineffectual to the attainment of the proposed end. As the words of this limitation stand, said Sir William Grant, they are descriptive of the person, whoever he might be, that was, at the time of the execution of the deed, the heir of Samuel Rolle (1). Sir William Grant added, supposing the grantor had been apprised of the effect of such a limitation as he has actually made, there is little doubt that he would have framed it differently; but we cannot know with the least certainty how he could have framed it; according to the nature of the misconception, under which the words actually used have been introduced into the deed, (which could only be come at by conjecture,) would be the nature of the alteration, which, upon the correction of that misconception, would have to be made. The settlor might have supposed that the words might apply to actually existing persons, descendants of Samuel Rolle, other than himself, *and that his intention would be affected (2). There was nothing executory in the deed, and being voluntary, there was no [*552] contract to bring in aid;—the legal construction of the words must prevail (3). Sir Thomas Plumer, on the other hand, considered that the words used were not clear and unambiguous (4); the description might, consistently with the words, refer to either period, the date of the deed, or the running out of the previous limitations; and would therefore admit of being referred to either by suppletory evidence. In the absence, he said, of secondary proof of intention being afforded by the deed to supply the meaning thus left imperfect, the law steps in to supply the meaning by presumption in favor of vesting; but this is only where the grantor has afforded no means on the face of the deed to discover his meaning; that on the point in question, the other parts of the deed, besides the operative part, might be resorted to for this purpose (5). If operative words are capable of only one meaning, and contain in themselves a full, perfect, and unambiguous description of the person or character, without requiring any addition to render it complete, or admitting of any explanation or qualification, in such case to resort to or act upon the intention of the framer of the deed, however clearly ascertained, as a guide to determine what should be the meaning and effect of the limitation, would be inadmissible, as that would be to substitute one meaning in place of the other, the two being irreconcilably at variance; that in the case before him the words were imperfect; they required the aid of legal presumption to add to the words "right heir," the words "at the time of the execution of the deed;" and so to make out the plaintiff's construction-that this was not a grant of a present estate, but of a remainder-laying aside inference and presumption, "right heirs" is applicable to every right heir, present or future; time, therefore, must be added, and that may be added from other parts of the deed;-the construction must be made upon the entire deed,

(1) 2 Merivale, 342. et v. ib. 343 to 347;

350.

(2) 2 Mer. 345, 346; and see 2 Jac. and W. 123; it is to be observed, that though the general intention was admitted, it was not admitted that there was anything to show that the settlor supposed that by the words used he should accomplish the intended purpose, v. 2 Mer. 346.

(3) Ibid. 347. See Sir Thomas Plumer's Summary of the argument, 2 Jac. & W. 67, 68,-The doctrine, (v. sup. p. 526) that the title of the heir-at-law is not to be defeated,

unless it be clear who else is to take, (Goodtitle v. Pugh, 3 Bro. P. C. 459,) appears also to have had some influence with the judges of the King's Bench, 2 B. & A. 641.

(4) Sir T. Plumer considered that in such a case as the present, the deed being in the nature of a testamentary settlement, the same rules of construction to ascertain the person of the donee ought to be applied as to a will, that intention is equally the guide in both, 2 Jac. & W. 97. And see 2 Atk. 91. (5) 2 Jac. & W. 80, 81.

(referring to Sheppard's Touchstone, ubi sup.) presumption cannot prevail against proof appearing upon the deed (1), or plain expression or necessary implication, leaving no doubt of the actual intent (2). Sir Thomas Plumer thus sums up what he conceived to be the result of the authorities. The law on this subject is completely settled, and the rules of construction, both in deeds and wills, established in a way not to be shaken; that though there is always a strong presumption in favor of technical meaning and inference, yet it is no more than a presumption; that it is not necessarily and universally binding and conclusive, but subject to be controlled by the manifestation of a contrary intent; that the primary object of inquiry is the intention of the party, and that when that is on the face of the instrument, clearly and satisfactorily ascertained, and found not to be contrary to any rule of law, the court is bound, if the words will admit of a construction conformable to the intention, to adopt that construction, however contrary it may be to technical meaning and inference (3); [*553] and he concluded by saying, that he was clearly of opinion that these words themselves, coupled with the other parts of the deed, and the circumstances of the case, afforded clear and sufficient evidence that the meaning of Lord Orford in the use of these words, was to grant the remainder, in case there should be a failure of issue and he should make no appointment, to such person as at the expiration of the estate tail should be the right heir of S. Rolle in fee (4). This case seems clearly to establish, that where the words of a limitation are clear and express, and incapable of more than one signification, no expression of intention appearing upon the deed, however explicit, can control the legal meaning of the words. The question left in doubt seems to be whether, when upon the whole deed the object of the grantor is plain, and the operation of the words he has used, if referred to a period different to that which in legal construction they would be referred, would effectuate his intention, they can be referred to that subsequent period, when there is no indication in the deed that the words were used with a view to such a construction or for the purpose of effectuating the intention, in that particular mode, though it happens that that construction will effectuate the intention, and the technical construction will defeat it.

(1) 1 Jac. & W. 83. 85. 87. 89, 90. (2) Ibid. 96, referring to Garth v. Baldwin, 2 Ves. 646, "an intention may be implied, as well as expressed, if the implication be intended with the same certainty," ib. 118.

(3) Ibid. p. 101. Sir T. Plumer distinguished this case from Seymour v. Boreham, Rep. in Ch. 123, see 2 Mer. 347, as here it

SECTION II. Of the application of Extrinsic Evidence to the Interpretation of Deeds and Wills.

§ 1.—Generally.

§ 2.-To rebut Presumptions of Law-As to its admissibility in cases of Election.

§1.-Rules as to the admission of Extrinsic Evidence generally.

General Rule that a Deed or other Instrument produced and proved is conclusive-Obligatim by Deed can only be altered by Deed-Parol Evidence not admitted to vary, add to, or subtract from a Written Instrument-Effect of Statute of Frauds-Rules the same in Equity as at Law-One exception to the rule, date of Deed-Rule qualified as regards the Consideration-Every question excluded except the meaning of the words.

Admission of Extrinsic Evidence-As regards the Subject and the Object the words are symbols-Extrinsic Inquiry must be made as to them-The words of Gift or Limitation of a different character.

The Judge or the Jury to be placed as near as possible in the position of the Parties using the words-Evidence may be given of surrounding circumstances-State of the Testator's Property may be inquired into in some cases-Cotemporaneous Exposition of the words

Vice-Chancellor Sir James Wigram's Propositions.

of Ancient Charters-Custom and Usage in Mercantile Matters-Extrinsic Evidence admitted-Contracts between Landlord and Tenant.

*Evidence may be given to show that a word primarily meaning one thing or per

son was used to designate another thing or person.

What is to pass as Parcel of a thing deemed Matter of Evidence.

Evidence to support Covenant to stand seised.

Declarations of a Testator.

Evidence of Intention itself admitted in special cases; Miller v. Travers; Doe v. Needs; Doe v. Hiscocks.

Subsequent acts of parties cannot be made use of to construe a Deed.

Lord Bacon's rule as to Ambiguitas latens and patens.

It is now proposed to take a general view of the rules which have been established for the admission of extrinsic evidence, that is, of circumstances not forming part of the instrument itself-in the interpretation of written instruments, more particularly in reference to Deeds and Wills (a).