Stores, J.
The first question is, whether, on the facts found by the jury, there was a tender by the defendant to the plaintiff, of the amount to which the latter was entitled, or that which was equivalent. A tender is an offer to pay a debt or discharge a duty. In the case of a debt or pecuniary claim, to constitute an offer to pay it, as a general rule, the actual production of the money, and the placing it in the power of the person who is entitled to it to receive it, is requisite. But such production of it is not necessary, when it is prevented by the party entitled to it, or he expressly waives its production, or does what is equivalent. All the authorities are to this effect.
In the present case, it is objected, that the money was not actually produced by the defendant. The reply of the plaintiff, found by the jury to have been made to the defendant, when the latter informed him that he was ready to pay him his legacy, and was in the act of producing the money from his pocket, was clearly tantamount to an express refusal to receive it, and was therefore a waiver of its formal production ; and in addition to this, the jury have found, that the production of it was prevented, by the conduct of the plaintiff. It would be trifling with justice to allow a party to set up the want of a formality which he had thus prevented, or expressly dispensed with. There is, therefore, no ground for this exception to the charge below, which indeed presented this [26]*26point to the jury in the most favourable form for the plaintiff,
The next enquiry is, whether the tender by the defendant, on the 3d day of October 1842, the preceding day being Sunday, was, according to the true construction of the will of Joshua Lyon, made “ within one year next after his decease,” which occurred on the 2d day of October 1841 ; and this depends on two questions: first, whether, in the computation of the year within which such tender should be made, the day of the death of said Joshua should be excluded ; and, secondly, whether, if it is to be excluded, the tender was good on the Monday succeeding the expiration of the year, according to that mode of computation.
If the will is to be construed literally, the computation must be de momento in momentum, commencing with the precise moment of the day when the testator died. But it is conceded that this mode is not to be adopted, because it would be opposed to a well established maxim of law, that there is no fraction of a day; it being considered an indivisible point of time ; a technical rule founded in convenience, and which is not to be departed from, excepting when, in particular cases, justice requires that the exact time when several acts were done, should be ascertained ; as, for instance, in order to determine a question of priority of right between parties ; in which case, the maxim is disregarded, on the principle that a fiction of law shall never be allowed to work a wrong ; and therefore, in such cases, the exact time of doing the act may be shown; an exception to the rule which does not apply to the present case. It results from this maxim, that in the computation of the year, in the present case, the whole day of the death of the testator must be either excluded or included; and that, therefore, the defendant is to be allowed somewhat more or less time for performing the condition of the devise to him, than the time mentioned in the will, if it were to receive a strict literal construction. As such a construction of the will must be discarded, the language of the devise must be construed according to the sense and meaning in which its language is commonly used and received among mankind, which is presumed, in the first instance, to be the sense in which it was intended to be used; or else in some other and peculiar sense, if such appears to have been the meaning intended by the testator; or, if construing the language according to its [27]*27ordinary meaning, where it is not used in any peculiar sense, his intention is left doubtful, in such a manner as will most probably carry into effect such intention ; or else in some artificial or technical sense attached to it by the law.
In every point of view in which this subject can be considered, we are of opinion, that the day of the testator’s death, in the present case, should be excluded, in the computation of the time within which the defendant was required to make the payment of money mentioned in the devise in question. In the first place, there is no reason for believing, nor is it claimed, that the testator intended to use language, in the present instance, in any sense which was peculiar or different from its ordinary import. In the next place, we are clearly of opinion, that it would accord with the meaning, which would, in common parlance, be generally attached to the language of the testator, as applicable to the subject matter of this devise, to construe it as excluding the day of his death, in computing the time within which the acts of the defendant mentioned in it were to be done. And when the rule applies, that the language is to be construed according to its ordinary import, it means, that import as applicable to the subject matter respecting which the language is used; because the meaning of words, in their common acceptation, can only be ascertained, by referring to the subject matter about which they are conversant; especially, if the same words are generally used in different senses when applied to different subjects, as is the case with a great proportion of the words and phrases of our language.
The word “ after,” which is used in the devise we are considering, like “ from,” “ succeeding,” “ subsequent,” and similar words, where it is not expressly declared to be exclusive or inclusive, is susceptible of different significations, and is used in different senses, and with an exclusive or inclusive meaning, according to the subject to which it is applied ; and, as it would deprive it of some of its proper significations to affix one invariable meaning to it, in all cases, it would, of course, in many of them, pervert it from the sense of the writer or speaker. Its true meaning, therefore, in any particular case, must be collected from its context and subject matter, which are only means by which the intention is ascertained ; and we do not entertain a doubt that, by the language of the [28]*28testator, in the present instance, it would be generally understood, that the payment mentioned in the devise, was to be made within a year after the day of the testator’s decease, excluding that day in the computation, rather than that it was to be made within a year from the day preceding his decease. The money was to be paid within a specified period after his decease; and it would be generally understood, therefore, that that event must take place before the time from which the payment was to be made, is to be computed ; and as the maxim which has been mentioned, would exclude the remaining portion, after his death, of the day on which it occurred, the computation of the year must commence with the beginning of the succeeding day; whereas, on the other construction, the computation of the time, after the death, within which the payment was to be made, would embrace a period of time before the death occurred.
It is however claimed by the defendant, that a general positive rule of construction is established, by the authorities, that where time is to be computed from the doing of an act, or the happening of an event, the day on which the act was done or the event happened, is always to be excluded.
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Stores, J.
The first question is, whether, on the facts found by the jury, there was a tender by the defendant to the plaintiff, of the amount to which the latter was entitled, or that which was equivalent. A tender is an offer to pay a debt or discharge a duty. In the case of a debt or pecuniary claim, to constitute an offer to pay it, as a general rule, the actual production of the money, and the placing it in the power of the person who is entitled to it to receive it, is requisite. But such production of it is not necessary, when it is prevented by the party entitled to it, or he expressly waives its production, or does what is equivalent. All the authorities are to this effect.
In the present case, it is objected, that the money was not actually produced by the defendant. The reply of the plaintiff, found by the jury to have been made to the defendant, when the latter informed him that he was ready to pay him his legacy, and was in the act of producing the money from his pocket, was clearly tantamount to an express refusal to receive it, and was therefore a waiver of its formal production ; and in addition to this, the jury have found, that the production of it was prevented, by the conduct of the plaintiff. It would be trifling with justice to allow a party to set up the want of a formality which he had thus prevented, or expressly dispensed with. There is, therefore, no ground for this exception to the charge below, which indeed presented this [26]*26point to the jury in the most favourable form for the plaintiff,
The next enquiry is, whether the tender by the defendant, on the 3d day of October 1842, the preceding day being Sunday, was, according to the true construction of the will of Joshua Lyon, made “ within one year next after his decease,” which occurred on the 2d day of October 1841 ; and this depends on two questions: first, whether, in the computation of the year within which such tender should be made, the day of the death of said Joshua should be excluded ; and, secondly, whether, if it is to be excluded, the tender was good on the Monday succeeding the expiration of the year, according to that mode of computation.
If the will is to be construed literally, the computation must be de momento in momentum, commencing with the precise moment of the day when the testator died. But it is conceded that this mode is not to be adopted, because it would be opposed to a well established maxim of law, that there is no fraction of a day; it being considered an indivisible point of time ; a technical rule founded in convenience, and which is not to be departed from, excepting when, in particular cases, justice requires that the exact time when several acts were done, should be ascertained ; as, for instance, in order to determine a question of priority of right between parties ; in which case, the maxim is disregarded, on the principle that a fiction of law shall never be allowed to work a wrong ; and therefore, in such cases, the exact time of doing the act may be shown; an exception to the rule which does not apply to the present case. It results from this maxim, that in the computation of the year, in the present case, the whole day of the death of the testator must be either excluded or included; and that, therefore, the defendant is to be allowed somewhat more or less time for performing the condition of the devise to him, than the time mentioned in the will, if it were to receive a strict literal construction. As such a construction of the will must be discarded, the language of the devise must be construed according to the sense and meaning in which its language is commonly used and received among mankind, which is presumed, in the first instance, to be the sense in which it was intended to be used; or else in some other and peculiar sense, if such appears to have been the meaning intended by the testator; or, if construing the language according to its [27]*27ordinary meaning, where it is not used in any peculiar sense, his intention is left doubtful, in such a manner as will most probably carry into effect such intention ; or else in some artificial or technical sense attached to it by the law.
In every point of view in which this subject can be considered, we are of opinion, that the day of the testator’s death, in the present case, should be excluded, in the computation of the time within which the defendant was required to make the payment of money mentioned in the devise in question. In the first place, there is no reason for believing, nor is it claimed, that the testator intended to use language, in the present instance, in any sense which was peculiar or different from its ordinary import. In the next place, we are clearly of opinion, that it would accord with the meaning, which would, in common parlance, be generally attached to the language of the testator, as applicable to the subject matter of this devise, to construe it as excluding the day of his death, in computing the time within which the acts of the defendant mentioned in it were to be done. And when the rule applies, that the language is to be construed according to its ordinary import, it means, that import as applicable to the subject matter respecting which the language is used; because the meaning of words, in their common acceptation, can only be ascertained, by referring to the subject matter about which they are conversant; especially, if the same words are generally used in different senses when applied to different subjects, as is the case with a great proportion of the words and phrases of our language.
The word “ after,” which is used in the devise we are considering, like “ from,” “ succeeding,” “ subsequent,” and similar words, where it is not expressly declared to be exclusive or inclusive, is susceptible of different significations, and is used in different senses, and with an exclusive or inclusive meaning, according to the subject to which it is applied ; and, as it would deprive it of some of its proper significations to affix one invariable meaning to it, in all cases, it would, of course, in many of them, pervert it from the sense of the writer or speaker. Its true meaning, therefore, in any particular case, must be collected from its context and subject matter, which are only means by which the intention is ascertained ; and we do not entertain a doubt that, by the language of the [28]*28testator, in the present instance, it would be generally understood, that the payment mentioned in the devise, was to be made within a year after the day of the testator’s decease, excluding that day in the computation, rather than that it was to be made within a year from the day preceding his decease. The money was to be paid within a specified period after his decease; and it would be generally understood, therefore, that that event must take place before the time from which the payment was to be made, is to be computed ; and as the maxim which has been mentioned, would exclude the remaining portion, after his death, of the day on which it occurred, the computation of the year must commence with the beginning of the succeeding day; whereas, on the other construction, the computation of the time, after the death, within which the payment was to be made, would embrace a period of time before the death occurred.
It is however claimed by the defendant, that a general positive rule of construction is established, by the authorities, that where time is to be computed from the doing of an act, or the happening of an event, the day on which the act was done or the event happened, is always to be excluded. The effect of such a rule would be to give an artificial and arbitrary meaning to the language employed in such cases, which would be irrespective of the intention in any particular case ; and would, in many cases, obviously thwart that intention. We certainly should not adopt a rule which would have such an effect, unless we were compelled to do so, by authorities which are absolutely insurmountable. We are satisfied, however, that whatever may have been anciently the views of the courts on this subject, the rule is at present well established, that no absolute, and invariable sense is to be attached to the word “ after,” used in the cases mentioned ; but that it is to be taken to be exclusive or inclusive, according as it will, in the particular case, effectuate the intention of the parties; and that, for the purpose of ascertaining that intention, the context and subject matter is to be looked at; and that instruments shall be so construed, if possible, as that they, and the rights depending upon them, shall be upheld, and not destroyed ; the presumption being that instruments are designed to be effectual, and not futile.
In the case of Pugh v. The Duke of Leeds, Cowp. 714. the [29]*29question was, whether the execution of a lease for twenty-one years, to commence from the day of the date, was a com- - pliance with a power reserved in a marriage settlement, to lease for 21 years in possession, but not in reversion ; and it depended on the question whether the phrase “ to commence from the day of the date,” was to be construed exclusively or inclusively of the day on which the lease bore date, because on that would depend whether the lease so executed was a lease in possession. After a minute examination of all the cases which had been decided on the construction of the words “ from the day of the date,” used in instruments, the court established the principle, that the meaning of these phrases was the same, and that neither of them were to have an absolute and invariable sense attached to them, but that they were to receive an exclusive or inclusive construction, according to the intention with which they were used, to be derived from the context and subject matter, and so as to effectuate, and not destroy, the deeds of parlies. To reexamine those cases, in which there is much confusion, would be a useless repetition. The principle established in that case, has been since uniformly recognized in England and in this country, and is, in our judgment, the only rational one which can be adopted.
The same course of reasoning, which was used in relation to the words there under consideration, apply to the case where, by the terms of an instrument, a computation is to be made from the doing of an act or the happening of an event. As to the latter, the case of Lester v. Garland, 15 Vesey 246. is in point. It there became necessary to determine the construction of a will, which required an act to be done within a certain period after the happening of a particular event. That was the case of a bequest of a residue of personal estate to trustees, in trust, that in case A. should, “ within six months after [the testator’s] decease,” give security not to marry B, then, and not otherwise, the trustees should pay the amount of said estate to the children of A , with a proviso that it should go over, if A. should neglect or refuse to give such security. The court held, that six months were to be computed exclusively of the day of the testator’s death ; and that as his death occurred on the 12th of January, and the security was given on the 12th oí'July succeeding, the condition was complied with. After an examinatioft of all the prominent cases where [30]*30time was to he computed from the doing of an act, the master of the rolls, -(Sir William Grant.) after remarking, that the happening of an event stands on the same ground, said, that whatever dicta there might be to the effect that the day of the act or event is to be always excluded, it was clear, that the actual decisions could not be brought under any such general rule. Arid the cases cited by him abundantly confirmed the declaration. He expressed the opinion, that it would be much more easy to maintain that the day of an act done, or an dVent happening, ought in all cases to be excluded, than that it should be in all cases included; and after giving his reasons for that opinion, he concludes by saying, that whether the day shall be excluded or included, is not to be determined by any general rule, but must depend on the reason of the thing, according to the circumstances of the case. We think that this case, which, on the point now before us, is precisely like the present, unless it is even stronger, inasmuch as the will there required the act to be done “ within" instead of “ ⅛” the time prescribed, and which was decided by a most able court, is decisive of the present.
It is also a well established rule, that where expressions like that which we are now considering, will admit of either an exclusive or inclusive construction, and the effect of one would be to divest a right or work a forfeiture, and any doubt exists as to their meaning, they shall be so construed as to prevent this effect; which rule is adopted in accordance with the presumed intention of the party. If, therefore, the language used in the present case were susceptible of a doubt, it should be construed so as to exclude the day of the testator’s death ; his intention plainly being, that the land should go to the devisee, and that it should be only a security for the payment of the sums mentioned in the condition. It is not necessary to determine, whether the payment of the money by the defendant, by the true construction of this devise, is a condition precedent or subsequent; although it would seem, by the decisions in this state, that it is considered here as being of the latter description. Walker & al. v. Wheeler & al. 2 Conn. R. 299. However that may be, the non-payment of the money is in the nature of a forfeiture; and therefore, the rule adopted in those cases, should, in our opinion, be applied here. ^ *
[31]*31On the question whether the tender was properly made on the Monday succeeding the Sunday, when, by the mode of computation which we have adopted, the money became payable by the defendant, we think that the principle adopted in Avery v. Stewart, 2 Conn. R. 69. sanctions the charge of the judge on the trial, and should govern this case. It was there held, that where a promissory note not negotiable, was made payable in sixty days from its date, and fell due on a Sunday, a tender on the Monday following, was good. The general rule on this subject, as there stated by Gould, J., is, that as Sunday cannot, for the purpose of performing contracts, be regarded as a day in law, it is, as to that purpose, to be considered as stricken from the calendar ; though intervening Sundays are doubtless to be counted as in all other computations of time ; because they are not appointed for the performance of any act. And this principle has been sanctioned in the other states. It is observable, that the case last cited, and the present, are alike in the mode of expression used for fixing the time of payment, the note there being made payable in sixty days from its date, and here the condition being that the money should be paid in one year next after the testator’s decease. Whether, in this case, the money might have been paid or tendered at any time within the period named, or as in Avery v. Stewart, it was payable at the expiration of that period only, we do not consider it necessary to decide. We think that the defendant had, by the terms of the devise, a full year allowed him for paying the money ; and therefore, that he w'as not bound to pay it on the Saturday preceding the day on which the year expired.
For these reasons, the superior court should be advised not to grant a new trial.
In this opinion the other judges concurred.
New trial not to be granted.