* [ 25 ]

Of the incu

sex, clerk; it was contended that one Charles Smith, an of ficer in the army, who had lived at Rumford, in *Essex, and had been dead some time, was intended, and that so the legacy had lapsed; but it was proved by the widow of Charles Smith, that he died before the testatrix made her will, and upon the court's manifesting a decided opinion against the executor and trustee of the residuary legatee, the point was given up, and a decree was made for the legacy, with interest, but without costs, in favour of the plaintiff, the Rev. Richard Smith.(12) The result seems to be, that wherever an ambiguity arises from the inapplicability of the name or description, as such ambiguity is produced by the state of facts, it is open to explanation by parol evidence, being properly an example of the latens ambiguitas; but still the evidence, when let in, may increase instead of lessening the degree of uncertainty, or it may fall short of affording that preponderancy rable latent of inference, which is requisite to decide the court or the jury. ambiguity. Thus much as to mistakes in the names and descriptions of persons, by which it appears, that very wide deviations and mistakes have been corrected by parol and extrinsic evidence; but when a blank is left for the name of a legatee or devisee, it is too much to set up an object of the testator's bounty, by any descrip tion of evidence. Thus, in the case of Hunt v. Hort,(13) where the testatrix directed that her other pictures (having made some previous specific *bequest of pictures) should become the property [ 26 ] of Lady, the Chancellor said he could not supply a blank by parol evidence; though there certainly were some strong circumstances in the will itself, to show that Lady Hort was the person intended. But where there was a blank only left for the christian name, evidence was without difficulty read to show the testator's intentions, with regard to the person answering to the

(12) 6 Vez. jun. 42. Smith v. Coney; so in Parsons v. Parsons, 1 Vez. jun. 266, and in Garth v. Meyrick, 1 Bro. C. R. 30. Circumstances weighed in favour of a person imperfectly named against another person to whom the name belonged, but who clearly appeared not to be the person intended, when the circumstances of description, and the facts coming in upon parol evidence, were coupled together.

(13) 3 Bro. C. R. 311; and the same point was adjudged in Baylis and Church v. the Attorney General, 2 Atk. 239; and again in Castledon v. Turner, 3 Atk. 257. and see Pym. v. Blackburn, 3 Vez. jun. 457.

Of the effect

of a blank

left for the

name of a legatee.

Some ambi

are not incurable.

surname.(0) And two initials of the person to whom à legacy is given, have been filled up by parol evidence of the person intended.(2)

It must be allowed, that, in the last instance, the rule of adguities patent mitting parol evidence in the case of an ambiguity latent, and rejecting it when offered to expound an ambiguity patent, becomes a little unsteady in its application. Where a testator gives a legacy to Mrs. G, it is not easy to show that the ambiguity which this imperfect designation creates, is, not an ambiguity arising upon the face of the will, and, as such, an ambiguity patent. And I think it will be more for the credit of legal consistency, instead of straining, by any refinement of reasoning, to take this instance out of the description of an ambiguity patent, to allow that the rule is flexible to the extent of admitting extrinsic evidence in a few particular cases, where the ambiguity, though patent, arises from something short in the expression or designation of the objects of the testator's intention, and is of a nature calculated to receive an easy explanation from outward facts.

So in other cases, although the effect of a positive clause(g) is not to be controuled by inference from other parts of the instru ment; yet, if the suppletory matter can be collected from the general context of the instrument, whether it be a contract or a will, * [ 27 ] the approach to an ambiguity *patent in a particular clause or sentence, will not exclude the admission of parol evidence, provided it tends to corroborate this collective inference from the context; indeed, that can scarcely be termed an ambiguity, which is susceptible of an exposition from other parts, or from the stress and scope of the instrument. And it is generally true, that where the context of the instrument reflects a strong auxiliary light upon an ambiguous passage, but not strong enough to decide the exposition with sufficient certainty, it may nevertheless afford a ground, and indeed invite the admission of extrinsic evidence. Perhaps too we may go a step further, and say, that where such secondary grounds of construction are morally decisive, as may sometimes be the case, it may be doubted, whether any extrinsic evidence can be received to contradict it; for instruments are not

Of the lights reflected up on particular passages by the context.

(0) Price v. Page, 4 Vez. jun. 680. (p) Abbott v. Massie, 3 Vez. jun. 148. (9) 8 Vez. jun. 42. Jones v. Colbeck.

to be construed piecemeal, but illustration is to be borrowed(r) from all the parts of them, to give light and effect to particular passages. In Ulrick v. In Ulrick v. Litchfield,(s) the ambiguity was also upon the face of the instrument, but the scale was inclined from its balance by a bearing in the language of the will; parol evidence was therefore, as it seems, very consistently and properly admitted, to decide the preponderance. The devise in Castledon v. Turner,(t) upon which the question arose, was considered as receiving illustration from the other parts of the will, and from a natural order of preference inferible both from the instrument itself, and from the relation of the persons concerned, so that the particular uncertainty was expounded by a comparison with the general tenor and object of the will; yet the Lord Chancellor seemed to hold, that as it was a case in which there was an absolute omission of a devisee, no extrinsic evidence could be admit ted, and the case, as it was regarded by his lordship, did not stand in need of it, there being enough in the will for its own exposition. The point of the case was this: "W. bequeathed his *lands *[ 28 ] to his wife for her life, and after her decease, to M. D. the niece of his wife, and proceeded thus: Item, I give the use of 500l. stock for her natural life, but after her decease, I give the 500%. among my wife's brothers and sisters." Lord Hardwicke considered this as a case of the absolute omission of a devisee, and nearly the same as where a blank is left for the name of the devisee, in which case parol evidence is always excluded.

It does not appear that Lord Hardwicke ineant to ground this peremptory rejection of parol evidence upon the rigid adoption and application of the rule of distinction in this respect between patent and latent ambiguities: he probably looked only at the case of a blank, and to the peculiar circumstances of the case before him nor does it seem as if the principle of the decision affirmed the doctrine of holding an ambiguity patent an incurable uncertainty in all cases, unless it can receive an interpretation by inference, exclusively, from the context of the instrument itself, without resorting to extrinsic evidence. Perhaps the majority of cases do not come up to this severity of doctrine. Where, upon general and probable reasoning, furnished from the internal evi- of the interdence of the intentions of parties, the mind is involuntarily led to nal evidence.

(r) See Coker v. Guy, 2 Bos. et Pull, 565. (s) 2 Atk. 372. (t) 3 Atk.

Of the effect

will some

times look

out of the

give à particular sense to a passage, involved in grammatical ob scurity, the general practice inclines strongly against refusing to the already preponderating scale the cumulative aid of external proofs. But whatever doubts may exist, whether in any case of a palpable ambiguity patent, although an advance be made towards the elucidation of it by reference to other parts of the instrument, any accessory light can be borrowed from mere parol evidence, The courts consisting of words and declarations; yet, it seems to be settled in practice, that if the court can, from the reflected lights furnished by the instrument itself, gain some probable foundation of conjecinstrument, tural inference, they will look out of the instrument itself to the intention *ostensible and obvious situation of the parties or persons concern. from the si-ed, and permit a resort to the *visible indications of intention from the position of external circumstances. Masters v. Masters,(14) was a strong case decided on this principle. There a testatrix gave a sum of money to all and every the hospitals, without saying where the hospitals intended by her were; but because it appeared that the testatrix lived at Canterbury, and moreover, that she took notice by her will of two Canterbury hospitals; the devise was held not to be void for uncertainty, but to have been intended for all the hospitals of Canterbury.

and infer the

tuation of the

person or property

*[ 29 ]

The same practice of looking out of an instrument to the situ ation of the parties concerned for collecting inferences of intention, appears in the case of Harris v. the Bishop of London,(u) which was thus: Talbot Barker being seized in fee of a real estate, as heir on the part of his mother's mother, and being also seized in fee of a very small estate of 41. per annum, as heir of his own father, devised all these lands to trustees and their heirs, in trust to pay several annuities and charities; after payment of which, he devises the residue of the rents and profits of the premises to his own right heirs of his mother's side, for ever; and the question was, who should be entitled to the residue of the rents and profits; whether the heir of the mother's father, or the heir of the mother's mother: here the court looked beyond the will to the testator's title to the property devised, and finding it to be derived through the mother's mother, decreed it to go to the heirs of the testator on the part of his mother's mother. This will, perhaps, appear, when properly considered, a stronger case (u) 2 P. Wms. 135.

(14) 1 P. Wms. 420. It appears also by this case, that a blank left in a codicil may sometimes be supplied from the will.

than that just above cited, of Masters and Masters, for although the extraneous matter was not introduced to explain an ambiguity patent, since the words of the will displayed no ambiguity at all; yet it was certainly resorted to by Lord Macclesfield, to annex a meaning to words beyond their legal effect; the “right heirs of the mother's "side" being a description properly applica- [ 30 ] ble, in the first place, to the heir of the mother's father; nevertheless, as we have seen, the court gave the estate to the heir of the mother's mother, in deference to the argument drawn from the manner in which the estate had in fact devolved to the testator. And it is to be further noted, that in this case the Chancellor did not look out of the will to the title to the property for the sake of deciding the judgment already inclined the same way by the context of the instrument, for it does not seem that the will afforded any internal evidence.

But the want of this internal evidence in the will itself, to justify the resort in the last mentioned case, to the external facts, makes the propriety of the last mentioned decision at least questionable, if we regard the analogy of authorities on this head; and, perhaps, the admirer of consistency in legal principles will be better satisfied with the inflexibility of Lord Talbot, in deciding the case of Brown v. Selwyn,(x) which was shortly as follows: John Equity preBrown made his will, and after several dispositions of real and vents the extinction of a personal property, devised as follows: "And as to the rest, re- debt by a desidue and remainder of my estate, whether real or personal, vise to the debtor, and whereof I am seized or possessed, or which I am any ways enti- holds the intled to, I give and bequeath the same, and every part thereof, and all my right, title, and interest therein and thereto, unto such my executor or executors herein-after named, as shall duly take on him or them the execution of this my will, his or their heirs, executors, administrators, and assigns, as tenants in common, and not as joint tenants." And the testator afterwards appointed the plaintiff and defendant his executors, and died, and the plaintiff and defendant both proved the will. The defendant was, at the time of the testator's death, indebted to him in 3000l. and for securing thereof, had given a bond to the testator.(15). The

(x) Cas. Temp. Lord Talbot, 240; and see 4 Bro. P. C. 179. (15) In equity, a debt is not released by a creditor's making his debtor his executor; but at law it is otherwise; and if a creditor makes his

terest to pass by a bequest of the personalty; and

extrinsic evidence of a contrary intention in the testator ceived.

cannot be re