prayer of the bill *was, that the defendant might account with the plaintiff for the testator's residuary property, and pay to him a moiety of the said sum of 3000l. with interest, and the cross bill was brought to have the bond delivered up to be cancelled. It appeared by the answer of the defendant in the original cause, and by the proofs,(16) that the testator really designed to give this money to the defendant, and that he had actually instructed one Viner, the attorney who drew the will, to make this disposition accordingly that Viner neglected to make mention of it in the will, insisting that the bond would be extinguished and released, of course, by Selwyn's being appointed executor; but that the testator appearing dissatisfied with Viner's opinion, a case was laid before counsel, who confirmed what Viner had said, relying upon which, the testator signed and published his will, with a full persuasion that the bond would be extinguished; and this appeared clearly to have been the intention of the testator.

It was impossible for parol evidence to be more decisive than that which was offered in this case, if it could have been received; but it is equally plain, that if the will were considered without the parol evidence, and the general devising words giving *[ 32 ] all the real and personal property, not *before disposed of, to the residuary legatees, were only attended to, that this debt was included in the bequest, as falling under the description of personal estate. The chancellor, although he declared it to be his pri vate opinion that the debt was intended to be released to the executor, by whom it was owing, thought himself not at liberty to

debtor and another his executors, the consequence at law is still the same; nor is this consequence varied by the fact of the debtor's administrating, or not administrating; the reason whereof is this, that the other cannot bring an action without joining him who refuses, and they cannot sue one of themselves for a personal thing. See this doctrine well treated in Plowd. Comm. 184, Woodward v. Lord Darcey.

(16) In courts of equity, these parol proofs are generally permitted to be read without prejudice. But at law, where the jury might, and probably would be, influenced, by the admission of such improper testimony, the production of it will not be allowed. See this distinction adverted to by Mr. Justice Powell, in Newton v. Preston. Prec. in Ch. 104.

yield to the parol evidence, and to make a construction against the plain words of the will.

Although the case of Brown v. Selwyn, is not easily reconcilable with that of Harris v. the Bishop of London, yet it is not opposed to the doctrine of the admissibility of parol and extrinsic evidence, to decide the judgment already strongly inclined by the context and external evidence of the instrument.

This part of the subject may be properly concluded by a short summary of the case of Fonnereau v. Poyntz,() which was to the effect following: a woman by her will gave 500. stock in the long annuities to A, the same to B, and 2007. long annuities to C, and directed the interest thereof to be accumulated; and the will contained a devise of the residue of her estate and effects to her nephews; the bill was filed by the residuary legatees, praying to be paid the residue of the testatrix's estate, after the payment thereout of the several sums of 5001. and 2004. to the particular legatees. Upon the hearing, it being stated that the testatrix had only 120l. a-year long annuities, the question was, whether the legatees should have the respective sums given to them raised by the sale of so much stock as would be sufficient to produce them, or were entitled under the will to annuities to the amount of the said sums: which latter construction would of course divide among them the whole of the property of the testatrix rateably, leaving nothing for the residuary legatees. An inquiry into the state of the property of the testatrix, at the time of her making the will, was permitted by the court, to show that gross sums of money were meant by her, and not annuities to the amount of the sums named. The words of the devisee, in the chancellor's opinion, disclosed no ambiguitas patens, as they nearly corresponded with the technical description of the annuities, as contained in the stock receipts. But he took notice that the phrase "the sum of 5001." went out of the technical description of an annuity, and that the additional words "the interest thereof to accumulate," more naturally imported the growing produce of a capital sum. He seemed to think, therefore, that although the words of immediate description contained no ambiguity, but were adapted to express an annual sum, yet that other parts of the will, and the context in general, furnished ground of argument, and a species of doubt, which (y) 1 Bro. 472.

*[ 33 ]

warranted the admission of collateral evidence to explain it ; and that the statement of the fortune of the testatrix was applicable to the purpose of such explanation. Which case supplies an additional proposition in the theory of evidence, viz. that where there is neither ambiguitas patens or latens, in the particular passage in controversy, but the words are clear, and there is a proper subject for their application, yet if there is another subject to which their application is less direct, and the context of the will points to this latter construction, the door is opened to the admission of exterior evidence, to second and confirm this collective inference against the literal expression of the particular clause or sentence.

The Admissibility of Extrinsic Evidence to raise a Case of Election or Satisfaction in Equity.

THERE seems indeed to be an order of cases in the Court of Chancery which has let in, perhaps with some anomaly of principle, and certainly with considerable struggle in the minds of chancellors, the application of extrinsic evidence (particularly that which arises out of documents exhibiting the state of the property of a testator) to supersede the ordinary sense of a word or phrase, without any such support from the context as has existed in the instances just above alluded to; for the sake of producing a consequence of law calculated to give general effect to what, upon the whole, seems to be the true intention of a testa tor. It will not be loss of time to those who wish to understand this intricate subject, to accompany the writer through the late case of Druce v. Dennison,(z) determined by the present Chancellor.

(10) The points of the case are numerous, and it is not with

(2) 6 Vez. jun. 385.

(10) It may be necessary to advertise the reader, that as this work is designed rather as a commentary upon, than a compilation of, the ca- 'ses introduced in it, he will find it necessary, in a great number of instances, to read the cases themselves, as they are reported in the books;

a

Whether evadmitted to

idence can be

out diligent attention that the question with which we are now concerned, can be detached from the surrounding matter. The case gives birth to this inquiry-Is parol and extrinsic evidence admissible to show, that by a disposition of his personal estate in *[ 35 ] a will, a testator, dying in the life-time of his wife (on whom settlement had been made by him in express exclusion of her dower and thirds, and a further express provision for her had show that a testator debeen made by his will) designed to include certain chattels belong-signed to ining to his wife, and not reduced into possession in his life-time, clude under the words, so as to put the widow to her election, either to resign the testa-his personmentary disposition in her favour, or to consent to be bound by alestate' cerher husband's disposition of what, in a strict sense, was her's, belonging to as not having been made the husband's by any exercise of his right his wife, and ever in his life-time ?

An inquiry into the general state of the wife's property, became necessary to the decision of several other questions in the case respecting the operation of the will; for as the property of the wife consisted of chattels of various descriptions, and as the husband had done various acts affecting or relating to this property, it became necessary, in adjusting the claims of the litigant parties, to ascertain what parts of this property had, in a legal or equitable sense, become the estate of the husband, and, as such, had come strictly within the operation of the will. It was discovered upon this inquiry, that as to certain leasehold estates of the wife, actual leases had been made by the husband, and that, therefore, there could be no dispute whether these passed or not under the description of personal estate in the will. The husband had also entered into agreements for leases of other parts of his wife's leasehold property, and the chancellor inclined to think, that these agreements would bind the wife in analogy to assignments at law; but upon this particular point he gave no decided opinion.(a) With respect to the question, whether the husband, by this settlement, had entitled himself in equity to be considered (a) Vide Steed v. Cragh, 9 Mod. 42.

and then it is hoped, that the assistance of these endeavours will be felt, in the accuracy and clearness with which the principles of each adjudication will be understood.

tain chattels

not reduced into posses

sion in his life

time, so as to put her to her election.

* [ 36 ]

[37]

as a purchaser of the unreduced parts of his wife's personal property, his lordship disposed of that point by referring to the rule that either the settlement must be expressly made in consideration of the wife's fortune to make the husband such purchaser, or such intention must be imported, and plainly imported by the contents:(11) both of which circumstances were wanting to the settlement under consideration. With respect, therefore, to those parts of the wife's chattels, which had neither been purchased or reduced, the question arising upon the husband's will was, whether, having given his wife a benefit under it, he sufficiently manifested the design of embracing, under the denomination of his "personal estate," not only what was strictly his, but also such parts of his wife's property, as it was competent to him in his life-time to have reduced, but which, in fact, he had not reduced into his possession, so as to defeat her title by survivorship, and to put her to her election, either to renounce the benefit given to her by the will, by insisting on her rights in opposition to it, or to acquiesce in the intended disposition thereby of her legal right, in order to entitle herself to the bounty thereby expressly given to her. Out of this general question arose the special doubts as to the admissibility of parol and extrinsic evidence, to show what was meant by the testator to be comprised within the denomination of personal estate.

The principal extrinsic evidence was a paper(12) stated in the report to have been found, at the death of the testator, among his papers, together with his will, entitled, " A *statement of my pro

(11) Upon this subject, the student will be well informed by reading the case of Adams v. Cole, Cas. Temp. Talbot, edit. Williams, 168. and the cases referred to in the note of the very learned Editor at the end of the report.

(12) This paper making no part of the will, it stands, in respect to its admissibility as evidence, in no higher estimation than verbal testimony, and is, in legal language, commonly classed under the general denomination of parol evidence, when, by that phrase is meant the extraneous proofs by which written instruments are proposed to be affected in their operation. Some distinction between the two kinds of extrinsic testimony seemed to be taken in Eden v. Smith, 5 Vez. jun. 341. but in Pole v. Lord Somers, and Druce v. Dennison, such distinc tion, as affecting the question of admissibility, was disclaimed by the bar and the court.