stance of it is as follows: A testatrix, by her will, gave two le-
gacies, the one of 100%. the other of 300/. in the following man-
ner, "I give and direct 100l. to be paid by my trustees to the
four children of my late cousin Elizabeth Bamfield, equally to be
divided between them: if any or either of them should happen to
die under 21 or unmarried, their share or shares shall go to the
survivors of them." The other legacy was worded thus, "I fur-
ther give unto the children of my late cousin Elizabeth Bamfield,
3001." At the time of the making of the will there were two
children of Elizabeth Bamfield by Poddlecomb, her first husband,
and four by Bamfield, and all the six survived the testatrix. It
was insisted, that parol evidence should be read to show that the
testatrix meant the four children by the second husband in both
the above mentioned bequests. But the Master of the Rolls ob-
served, that the two parts of the case fell under quite a different
consideration; *that he had always taken the distinction as to ad-
mitting parol evidence to be, that in no instance it should be ad-
mitted in contradiction to the words of a will; but if the words of
a will were doubtful and ambiguous, so that unless some reason-
able light were let in, it would fall to the ground; any thing to
explain, not to contradict the will, was always admitted. As to
the 1007. legacy, she had six children, and though it was not ma-
terial whether they were by one husband or the other, yet it
was a proper ground to admit an explanation upon, as to what
four children were meant : but as to the 3007. the devise was so
expressed as to take in the whole of the children : the will was
positive as to that, and there was no ambiguity at all. The evi-
dence being read, his honour further observed, that he should
have entertained some doubt as to the legacy of 100/. if it had
not so entirely corresponded with the situation and circumstances
of the family at the time. Here were not six children by one and
the same husband, as it was in Tomkins v. Tomkins, but two

the governing object of the instrument, seems difficult on any sound
principle to explain. The branches of a tree, though collateral to the
trunk, do yet derive their life and energy from the same root; so the
principal subject matter of an agreement springs not more from the in-
tention of the parties, which is the root of the transaction and the source
of interpretation, than the collateral matters, which, in the judgment
pronounced in the above case, were treated with so much indifference.

*[ 14 ]

broods of children by different husbands, therefore it was natural to understand the testatrix as pointing by the number four at the particular brood answering to that number. That it was in evidence that the testatrix declared, that she had provided for Mrs. Bamfield's four children, and that she would not give to the other two, being the Poddlecombs, because their father had provided for them. But that the other legacy stood on a very different foundation; and his honour thought himself not warranted (whatever one might suggest to oneself, to be the intent) to depart from the words of the will, which, beyond all dispute, took in all the children of Elizabeth Bamfield, so that he could not construe it restrictive to the four; for which, however, there might have been some foundation, had there been any words of reference of any sort to those four children, for whom the 100l. was designed, but there were none throughout. That it was dangerous, in questions of this nature, to depart from the plain words of a will, or to admit any evidence to contradict them therefore, he said, [15] he admitted *the evidence as to the 100%. but would not apply it to the other-in the one case it being only explanatory, in the other contradictory.

Of the distinction be

ambiguities.,

PART II.

Ambiguities.

IN analogy to the principle on which parol evidence is admittween latent ted to explain but not contradict or enlarge the import or expresand patent sion of an instrument in writing, a distinction runs through the cases between latent and patent ambiguities; the technical and almost figurative conciseness of which phrases places them above common apprehension; for in ordinary language are not all ambiguities latent, and what ambiguities can be patent or manifest? It may therefore be assisting to the professional beginner in this place, to attempt an explanation of these phrases. An ambiguity is properly latent in the sense of the law, when the equivocality of expression, or obscurity of intention, does not arise from the words themselves, but from the ambiguous or delitescent state of extrinsic circumstances to which the words of the instrument refer, and which is susceptible of explanation by the mere developement of extraneous facts, without altering or adding to the

written language, or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words and phrases made use of-an ambiguity is patent when it is produced by the uncertainty, contradictoriness or deficiency of the language of an instrument, so that no discovery of facts or proof of declarations can restore the doubtful or smothered sense without adding ideas which the actual words will not of themselves sustain.(5) It follows from this explanation, that the statute of frauds, which, in this particular, is declarative and corroborative *of the rule of the common law, virtually forbids in the [ 16 ] cases within its provisions, the resort to extrinsic proof, in those instances wherein the ambiguity is patent: but that where the ambiguity is only latent; as, in such case, the object of the collateral testimony is only, by a comparison of the words of the instrument with external circumstances whether consisting of facts or declarations, to attach a meaning and applicability to expressions within the limits of their grammatical or legal acceptation; the statute seems in no danger of violation by the admission, for these purposes, of this species of proof.

The instance most frequently chosen as the example of the ambiguitas latens, is that of a devise to a person of the same name with another, without any specific description appearing upon the face of the will, to designate the real object of the testator's bounty.(e) The case put by Lord Hobart was that of a devise by a testator to his son John, having two sons of that name; and the same Judge having a little above decisively declared, that a testator's intent must be expressed in a will written, that it may be certain to the court, observed on the case just put, that an averment should make this, i. e. who was designed by the testator, certain. The case and the comment contain together a true description of the ambiguitas latens, to constitute which, there ought to be a positiveness, a certainty and integrality of verbal expression, becoming ambiguous in sense by the discovery of a matter not appearing in the instrument. This is the ambiguity

(e) See 5 Rep. 68. Lord Cheyney's case, Hob. 32. Counden v. Clark, 3d point, and 1 Salk. 7. Lepcot v. Brown.

(5) If I have not the good fortune to be intelligible, I refer the reader to Lord Bacon's Maxims, 99. and Sir Thomas Raymond's Reports, 411.

Of mistakes in the names of persons. * [ 17 ]

Name mistaken, where

latent, which, as it is generated by facts, so it is removeable by a further investigation of facts or matter extrinsic.

The names of persons appointed to take under wills,(ƒ) have, on the same principle, been set right by parol evidence, *where both the christian and surname have been mistaken; nor does the statute appear to be violated in this instance, any more than in that mentioned above; for in such case no words are supplied or substituted, but the mistaken appellation in the instrument is applied to the person really intended by it, and the names of persons having no intrinsic meaning, the will is rectified without any alteration of the sense. A distinction, indeed, occurs between such mistaken the name u use of a name, which, though a wrong appellation of the object of sed happens to belong to the testator's bounty, happens to belong to an existing person witha person in being, and in the range of the testator's knowledge and possible contemplawho might tion, and that of a name under which there is nobody to claim as be in the testator's con- fortuitously coming within its literal description. Thus, in Beautemplation mout v. Fell,(g) where the point arose upon a bequest in a will to Catherine Earnley, and the name of the person who claimed the legacy as the real object intended to be benefited was Gertrude Yardley, it was first shown by her, and admitted, that no person called Catherine Earnley claimed the legacy, and then evidence was offered to show that the scrivener, who took instructions for drawing the will, had made the mistake. The court established the claim of Gertrude Yardley,(h) but not without observing how very material it was to the case that no such person as Catherine Earnley claimed the legacy.(5)

(ƒ) And see Hodgson and Caldecot, v. Fitch and Another, 2 Vern. 593.

(h) Edge. Salisbury, Ambl. 71. Gines v. Kemsley, 1 Freem. 293. Dorset v. Sweet, 1 Ambl. 175. 1 Vez. jun. 266. Parsons v. Parsons, and see particularly the case of Del Mare v. Rebello, 3 Bro. C. R. 246.

(5) In the case of Del Mare v. Rebello, 3 Bro. C. R. 246. the devise was to the children of the testator's sisters, Estrella and Reyna; Estrella had sisters, Reyna had none, and had changed her name, and become a nun professed. But testator had a third sister, Rebecca, who had children. The Chancellor would not substitute the name of Rebecca for Reyna.

On the other hand the Court of K. B. treated the case of Doe What ambi

on the demise of Hayter v. Joinville,() as affording an in*stance of an incurable ambiguity. A testator having devised to his wife's family one moiety of his residuary property, and to his brother's and sister's family the other moiety, died, leaving a brother and sister living, and both with a numerous issue, as well as the children of a deceased sister. It was judged impossible to construe the will with any rational certainty, so as to make a precise application of the word family; and that this was a proper example of the ambiguity patent, as the uncertainty was inherent in the term itself, which, unless the context of the will had defined its applicability, could scarcely receive explanation from any extrinsic circumstances.(6) Again, where a testator devises to 'one of the sons of J.S.'(k) who has many sons, no regard can be paid to any thing extraneous to the will, as the medium of expounding the testator's intention.(7) It is true, in the last instance, the ambiguity does not fully display itself till from the words of the instrument the attention is directed to the predicament of the object to which the words apply, since, if in point of fact there was but one son, that son would be entitled; but still it is obvious, that the reference to external facts (if there were more sons than *one) would confirm the patent ambiguity, already attaching upon

(i) 3 East Rep. 172.

(*) 2 Vern. 625. Amb. 175. 2 Mod. Cas. in Law and Equity, 122.

(6) But it has since been held in the court of chancery, that the word 'family' imports as definite an object of a devise as the word 'relations, in respect to which the court of chancery has, upon grounds of convenience, adopted the rule of the statute of distributions: so that it seems a bequest to the 'family' of another person, after the decease of such person, will be executed by the court in favour of his nearest of kin Crewys v. Colman. Vez. jun. 1 vol. N. S. 319.

(7) Where a testator gives the same legacy in different parts of his will to the same persons, it is an ambiguity which, unless helped out by some rule of construction, no extrinsic evidence can be received to explain. And if any settled rule of construction will apply, no parol evidence as I conceive ought to be received, to contradict it. As to the existence of any and what rule of construction in this case, there has been a great contrariety of opinion. See 2 Atk. 373. 3 Atk. 493. Plowd. Comm. English edit. 541, margin, where all the authorities are collected.

ated by a deguity is crevise to a person's family;

*[ 18 ]

or to one of the sons of

J.S.

[19]