Where two clauses in a will are repugnant one to the other, the last in order shall prevail.
As this maxim is a positive rule on a particular subject, it is considered of sufficient importance to be separately inserted amongst these maxims, otherwise it would have been referred to the maxim, “ Benignse faciendae,” etc. It must, however, be received with some caution, inasmuch as it is subject to the general rule of construction in wills, by which the intention of the testator must be the paramount consideration, and which intention must be gathered from the whole tenor of the will. To say thus much, however, is not to contradict the maxim, which only goes to show that, all things being equal, the last of two contradictory clauses shall be considered to be the testator's last will. And there is no doubt but that two apparently contradictory clauses will, if possible, be reconciled so as to carry out the intention of the testator, and so as not to reject either ; such contradiction, or apparent contradiction, consisting most frequently in words only, and not in intention. But where there are two clauses manifestly repugnant to each other, as two devises of the same thing to two different persons, then the maxim holds good, but not without difference of opinion as to how the several clevises should be made to operate : — First, as to whether or not the last devise is an absolute revocation of the first ; second, as to whether or not both devises are void for their repugnancy ; and, third, as to whether or not the devisees should take in moieties. The prevailing opinion, according to the old authorities, was, that both devises should operate, the devisees taking in moieties ; and although, at the present day, if any such intention of the testator can be collected from the whole will, the same rule will be followed, yet the principle of the maxim is in strictness carried out where it does not clash with the paramount rule of intention ; in deference to which, however, all considerations will be made to give way, and the clause repugnant to such intention, whether standing first or last, rejected ; according to the maxim, “ Quod ultima voluntas testatoris perimplenda est secundum veram intentionem suani.”
This rule, adopted in the construction of wills, is said to be the reverse of that adopted in the construction of deeds ; in respect to the construction of which latter, it is said, that the words first in order shall prevail. But, it may be observed, that with deeds as with wills, no construction will be put upon them under this rule contrary to the manifest intention of the parties, as it is said : “ Voluntas donatoris in charta doni sui manifeste expressa observanda est;” and that although a grant by deed be absolute in the commencement, it may be qualified by positive intention shown in a subsequent part of the deed.
The following instance will show the caution necessary to be observed in the application of this maxim. In a devise, before the Wills Act, to the testator's daughter M. for life ; remainder to M.'s first and other sons successively in tail ; remainder to the use of all and every the daughter and daughters of the body of M., as tenants in common, and in default of such issue to A. in fee : it was held, that the daughters of M. took estates for life only, and also, that the estates of the daughters could not be enlarged by a recital, in a codicil, that the testator had, by his will, given them estates tail.
Co. Litt. 112 ; Plowd. 5-11 ; Shcpp. Touch. 113, 2,“,3, 431, 451 ; 2 Bla. Com. ; Doc dem. Murch v. Marchant, 7 Scott N. R. 044 ; Eno v. Tatham, 4 Giff. 181 ; MorraU v. Sutton, 1 Phill. 336 ; Shorratt v. Bentley, 2 M. & K. 1.57; Plenty v. West, G C. B. 201 ; Webb v. Bing, 28 L. T. 133; Earl o£ Portarlington v. Damer, 9 L. T. (N.S.J 50.3 ; He Arnold, 9 L. 1. (N.S.) 530 ; Patrick v. Teatherd, 10 L. T. (N.S.) 92 ; Robertson , . Powell, 9 L. T. (N.S.) 543.