*555 Parol Evidence not admitted to vary written instrument.

*The general rule, as will have been collected from what has been already stated, is, that a deed or other instrument being produced and proved, is conclusive upon the rights of the parties. By a fundamental principle of law, an obligation by deed can only be altered by deed (a); so it is a principle of the common law which prevailed before the Statute of Frauds, that parol evidence is not admissible to vary or add to a written instrument (b); to admit it as regards deeds, would be, as Lord Bacon observed in the illustrations of his maxim that parol evidence shall not be admitted to explain an ambiguitas patens, to allow that to pass by deed which the law appoints shall not pass but by deed; and in other cases, it would be virtually to give to oral a superior force to written evidence (c);-to endeavor to subtract is the same in principle as to seek to add to a written instrument (d). With respect to instruments which are of a nature required by the Statute of Frauds (e) to be in writing, the rule has the additional force of the statute (ƒ).

The rules of evidence are universally the same, as regards the point now under consideration, in the Courts of Law and of Equity; therefore, parol evidence offered for the purpose of substantially altering a written instrument, cannot be received in a Court of Equity any more than in a Court of Law (g). Lord Cowper intimated an opinion that the court, at least the Court of Chancery, in construing wills, might assist its judgment by parol evidence generally, in cases extremely dark *and doubtful (h); but since the time of Lord Hardwicke this has [*556] been considered as exploded (i).

One exception to the rule above mentioned, in both courts, is the date of the deed, which is never conclusive as to the time of the delivery, from which alone the deed takes its operation-for it is open to the party

tor intended, and the will (except in certain special cases, see Prop. VII.) will be void for uncertainty.

"PROPOSITION VII.-Notwithstanding the rule of law which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning-Courts of Law in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose.

"These cases may be thus defined:where the object of a testator's bounty, or the subject of disposition (i. e. the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator."

(a) Thompson v. Brown, 1 Moore, 357, 7. Taunt. 656. It may be released also by accord and satisfaction, Sweet's Note to 2 Bla. Comm. 382, and avoided altogether by proof of fraud.

(b) 1 Sugd. V. & P. 218.

(c) 5 Co. Rep. 26 a; Starkie on Evidence, iii. 753, 4, 5, 757, et seq. 3d ed.; King v. Baddeley, 3 M. & K. 425; Goss v. Lord Nugent,

5 Barn. & Adol. 58, 65. It is there said by Lord Denman, in delivering the judgment of the court, that by the common law, independent of the Statute of Frauds, an agree ment in writing may be waived, dissolved, varied, or added to, by a subsequent agreement not in writing, thus making a new contract, which is proved partly by the written agreement, and partly by the subsequent verbal forms ingrafted upon what is left of the written agreement, which Sir E. Sugden, 1 Vendor and P., p. 220, hesitates to admit.

(d) Partricke v. Powlett, 2 Atk. 384; Preston v. Marceau, 2 Bla. R. 1249; Powell v. Edmunds, 12 East, 6.

(e) V. sup. p. 161.

(f) Though it seems that a written contract within the Statute of Frauds may be abandoned, or waived by parol, Sweet's Note, 2 Bla. Comm. 382, and the authorities; see, however, Goss v. Lord Nugent, p. 66; and the judgment in Harvey v. Grabham, 6 Nev. & Man. 762.

(g) 1 Sugd. V. & P. 222.

(h) Selwyn v. Brown, Ca. temp. Talbot, 240. This was one version of the ancient jurisdiction in cases of "Extremity," which may be said to have almost ceased to exist. (1) Ulrich v. Lichfield, 2 Atk. 374.

Exceptions—Evidence as regards Subject and Object.

556

in all cases to show that the deed was executed or delivered on a day different from that whereon it appears to bear date (a). The rule is also subject to the following qualification, namely,-When one consideration is recited in a deed, any other consideration which is not in contradiction to the instrument may be proved (b). Thus, where a conveyance was stated to be in consideration of 281., a parish, on a question of settlement, was permitted to show that 30l. was the sum actually paid (c)..

The general rule above mentioned excludes from the consideration of the court every question but this,-what is the meaning of the words which the parties have used. The question in not broadly what was the intention of the parties; what the meaning of the words indicates, must be taken to have been the intention (d).

Now, in reference to the admission of extrinsic evidence, with a view to ascertain the meaning of the words, it is to be observed, that in relation to the Subject of every gift or transfer, and the person who is the Object of the gift or transfer, the words used must be symbols of something extraneous to the instrument; we must, therefore, in all cases institute an inquiry beyond the instrument, in order to ascertain what or who in particular is meant by the words used. The words may have received a technical meaning, so as to be applicable, strictly or primarily, to a subject or person of a particular kind or character only, as is the case with the words "Messuage" and "Child;" still we must ascertain by inquiry out of (that is beyond) the instrument, what messuage is meant, and who is the individual who answers to the description of child. An inquiry of a similar nature, indeed, is sometimes [*557] resorted to, even to ascertain what is to be considered as the primary or legal import of the words used. Thus, on the hearing of a demurrer which raises a question as to what description of thing is to be considered in law as intended by some particular expression, the judge may inform himself from dictionaries, or books relating to the particular subject, as to the meaning of the word. The judge may do the same at a trial before a jury; though if he shows the books, &c., to the jury, they are not considered as evidence, but as the grounds on which he founds his opinion; just as when he cites authorities for any point of law which he lays down, in regard to the construction of the words of gift or of limitation in the instrument (e).

As regards the words of Gift or Limitation, or those which point out the nature and extent of the interest intended to be conferred, here the

(a) Touchstone, p. 72, 73; Hall v. Cazenove, 4 East, 477.

(b) P. V. C. Knight Bruce, Clifford v. Turrell, 1 Y. & Coll. N. C. 149.

(c) Rex v. Inhabitants of Scarmonden, 3 T. R. 474; the question as to the amount, it may be observed, was entirely unconnected with the legal effect of the Deed. Et v. 1 Sugd. V. & P. 218.

(d) Lord Denman, Rickman v. Carstairs, 5 B. & Adolph. 663; and see Doe dem. Gwillim v. Gwillim, 5 B. & Adolph. 129;

also Littledale, J., Doe dem. Templeton v. Martin, 4 B. & Adolph. 783; Parke, J., in same case, 1 Nev. & M. 524, all quoted by Sir J. Wigram, p. 9, et v. ib. p. 81. p. 172. The jurisdiction of the Court of Chancery to cause instruments which, through fraud or mistake, are not conformable to the proved intention, to be canceled or re-executed in a corrected form, is not now under consideration.

(e) C. B. Eyre, Attorney-General v. CastPlate Glass Company, 1 Änst. 39.

Words of Limitation-Surrounding Circumstances-Usage, &c.

words are not symbols of things; they are creative, not descriptive; generally speaking, therefore, it may be expected that they will not call for any explanation beyond what they themselves afford; but where the quantity of interest given or disposed of by a testator is in dispute, the words may here also bear different meanings under different circumstances; and the court at least, in some cases, may look out of the will, and be guided in the construction of it by the effect, if any, which the circumstances of the case may have upon it (a).

It being then the object to ascertain the meaning of the words as used, the judge or jury can hardly be in a condition to do this, and to apply the words used to the proper subject, and the proper object, and in the proper way, unless they can be placed, as it were, in the position of the parties who used the words. Accordingly, it is the settled rule as regards a will, where the meaning of the terms is not positively fixed, that evidence may be given as to all the surrounding circumstances which influenced the mind of the person who executed the instrument; just as to understand the meaning of any writer we must first be apprised of the persons and circumstances that are the subjects of his allusions and statements. Indeed, it is laid down, that it is the duty of the court to make all proper inquiries for this purpose (b). For instance, where the state of the property will show in what sense a testator has used [*558] the words to be found in his will, resort may, in some cases, be had to evidence directed to that point. Thus the state of the testator's funded property may be resorted to, in order to show whether a bequest of stock is pecuniary or specific (c). So extrinsic evidence, such as contemporaneous exposition and ancient usage, is admissible for the purpose of construing the words of ancient charters (d). It may also be resorted to for explaining the meaning of the terms in contracts to which a peculiar and technical meaning has been annexed by custom and usage; also in some cases to ascertain a fact collateral to the written instrument, in order to explain the meaning where the instrument is equivocal, provided the evidence adduced in explanation be consistent with the written document (e); also to annex consequences and incidents to written con

(a) See Wigram on Extrinsic Evidence, p. 67, 72; and see Gall v. Esdaile, 8 Bing. 323; and the instance of "heirs" being con. strued "heirs of the body" from extrinsic circumstances, Fearne, 466, both cited by Sir J. Wigram, p. 72 & 73.

(b) See the judgment of Lord C. B. Abinger, Doe v. Hiscocks, 5 Mees. and W. 367, 8, and of Lord Ch. Sugden, Attorney-General v. Drummond, 1 Conn. & L. 225, 226, "You are to inquire," says that distinguished judge, "into all the surrounding circumstances; if it were a settlement, to ask who the settlor was, and of what his family consisted, and all his circumstances;" and see the judgment of Bayley, J., Doe dem. Jersey v. Smith, in Dom. Proc. 2 Brod. & B. 553; Boys v. Williams, 2. R. & M. 689. In King v. Buddeley, 3 M. & K. 417, where an attempt was made to carry the doctrine beyond the proper limits, the testator had

provided for the event of certain contingent interests falling in to his legatees, evidence was offered, but rejected, to show, that he meant certain expectations which the lega tees had from certain persons; and see Martin v. Drinkwater, 2 Beavan, 218; Blundell v. Gladstone, 11 Sim. 488; and Wigram on Extr. Evidence, Illustrations of Prop. v. p. 57, et seq. p. 75, 6; Starkie on Evid. ill. 768, et seq.

(c) Attorney-General v. Grote, 2 Russ. & M. 699; Boys v. Williams, ib. 689; Williams on Executors, 930.

(d) 2 Inst. 282; Vaughan, 169; Lord Hardwicke, 3 Atk. 577; Lord Ch. Sugden, 1 Conn. & L. 226.

(e) Dict. by the three judges, Rex v. Inhabitants of Laindow, 8 T. R. 382. 384, 385; et v. Preston v. Merceau, 2 Black. 1249; and Smith's Lead. Cas. ii. 306, 307.

Evidences as affecting Primary sense of Words.

558 tracts in mercantile transactions (a). It has also been admitted in contracts between landlord and tenant, and all other transactions of life in which known usages have been established and prevailed; for it is presumed that, in such cases, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with a reference to then known usages (b): even in the case of a statute, universal usage has sometimes been resorted to for the purpose of explaining doubtful terms (c). But when the terms of an ancient charter, and it must be the same with any other document, are not in themselves doubtful, either, from the use of words which are equivocal or obscure, or which are doubtful in point of legal construction, evidence of usage cannot avail. Usage may be admissible to explain what is doubtful, but it is never *admissible to contradict what is plain (d). Whether there is such a doubt is a question of law to be deter[*559] mined by the court of construction upon reading the instrument itself (e).

Evidence may be given to show that a word primarily meaning one thing was used to designate another thing. Thus, as has already been observed, a manor may pass by the name of a messuage, or a messuage by the name of a manor (ƒ), if it be established by evidence that such was the sense in which those words must have been used-So, if a testator devise his freehold houses, it being shown that he had only leasehold houses, the leasehold houses will pass (g). So, a person of one name, may take under a gift in a will by another name, where there are circumstances showing that he is the person pointed at (h), and it is established that there is no other person than him to answer the description, and that the words of the instrument would be insensible if their apparent meaning were adhered to (i): many of the cases where evidence

(a) See Clayton v. Gregson, 5 Adol. & Ell. 302; the question was as to the meaning of the contract; and see Smith's Lead. Cas. ii. 307, 308.

(b) Judgment delivered by Parke, B., Hutton v. Warren, 1 Mees. & W. 474, 5. The relation of landlord and tenant, adds this distinguished judge, have been settled on the supposition that all customary obligations not altered by the contract are to remain in force.

(e) See Starkie on Evidence, iii. 768. 775. 9 et seq., and Smith's Lead. Cas. ubi inf.

(d) Roberts v. Barker, 1 Cr. & Mees. 808. (e) Starkie on Evidence, ubi sup.; and see Smith's Leading Cas. vol. i. note on Wiggleworth v. Dallison, where the subject of admitting evidence of usage is fully treated.

(f) Supra, p. 537.

(g) Wigram on Extr. Evidence, p. 54, 5, Illustrations of Prop. V.; here the description is inaccurate, but not ambiguous-a distinction which it is important to bear in mind, v. ibid. p. 175.

Ves. J., 217, the nephew, "Robert New," took, under the circumstances, by the description of "My nephew Robert Nune." In Pursons v. Parsons, 1 Ves. Jun., 266; 1 Rop. Leg. 153, the children of the testator's brother, Samuel Parsons, whom the testator had been in the habit of calling "Ned," took under the description of the children of the testator's "brother, Edward Parsons." In Smith v. Coney, 6 Ves. 42, the testatrix gave 500l. to the Rev. Charles Smith, of Stapleford Tawney, Clerk; there was no person answering the description; but it appeared on the evidence, that the Rev. James Smith was, at the date of the will, incumbent of Stapleford Tawney, and known to the testatrix; the M. R. said, this sort of question is settled now; there are many cases of children going by wrong names, and he decreed the legacy to James Smith. In Andrews v. Dobson, 1 Cox, 425, though the bill in that case was dismissed as requiring the court to go beyond all precedent, Lord Kenyon said, there were cases where legacies were left to persons by nicknames, and evidence admitted to show who was meant. And see Masters v.

(h) See Miller v. Travers, 8 Bing. 249. (i) In a case cited by Sir J. Strange, 2 Masters, 1 P. W. 421. 425; Evans v. Tripp,

559 As to what is "Parcel"-Evidence of Actual Intention.

has been admitted for this purpose are within the principle, that falsa demonstratio non nocet, which has already been observed upon. But a new subject-matter of devise, or a new devisee where the will is entirely silent upon either, cannot be imported by parol evidence into the will itself (a). Nor can evidence be let in where it is manifest from the instrument that any word, having a primary signification, was used in its ordinary sense (b). In a will where "household furniture," which by general acceptation, and therefore by legal construction, *includes [*560] plate," is given, evidence cannot be received to show that the plate was not intended to pass (c); nor can general words be narrowed by evidence showing they were not intended to embrace all that by legal construction would be covered by them (d).

Whether a particular subject is to pass as parcel of a thing, is always matter of evidence (e); that is, to be collected from extrinsic facts. It was held by all the Judges of the King's Bench, that evidence might be given to show that certain vaults which were under a yard that was demised, and which, primâ facie, would have passed by the deed, were a distinct tenement so as not to be included in the demise (ƒ).

To support a deed as a covenant to stand seised in favor of a particular person, evidence may be given to show that that person stood in a degree of relationship to the maker of the deed, which will support or make effectual in law a covenant to stand seised (g).

As a general rule, the declarations of a testator cannot be received as evidence of his intention, but on a point collateral to the question of intention, his declarations may be evidence of an independent fact material to the right interpretation of his words (h). How far, and in what cases, evidence of intention itself is admissible, has now to be noticed.

Notwithstanding the rule of law which makes a will void for uncertainty where the words aided by evidence of the material facts of the case are insufficient to determine the testator's meaning, Courts of Law and Equity, in certain special cases, will admit extrinsic evidence of the

6 Mad. 92; the judgment in Doe v. Hiscocks, 5 Mees. & W. 369; Wigr. on Evidence, p. 19, et seq.; and Blundell v. Gladstone, 11 Sim. 485. 488. The cases on this subject are very numerous; the authority of some of them has been disputed. See Hiscocks v. Hiscocks, 5 Mees. & W. 369, 371. But Sir J. Wigram's treatise renders it wholly unnecessary to prosecute this subject.

(a) Miller v. Travers, 8 Bing. 251. (b) Richardson v. Watson, 4 B. & Adol. 799, on the word "Close."

(c) Kelly v. Powlett, Amb. 605, cited 1 Bro. 475; 1 Sug. V. & P. 252.

(d) Davis v. Thomas, 1 Sug. V. & P. 253; Shelling v. Farmer, 1 Strange, 646. (e) Buller, J. 1 T. R. 704.

(f) Doe v. Burt, 1 T. R. 703, 4. They were in the distinct occupation of two per

sons, and what was demised was stated to be in the occupation of one only; the supposed cases of a demise of a distinct set of chambers, and of a house in the Adelphi, with vaults underneath unconnected with the house, were used as illustrations. See 1 Sug. V. & P. 250.

(g) Goodtitle v. Pitts, 2 Stra. 359. See the judgment, Roe v. Tranmarr, Willes's R. 682; Smith's Leading Cases, ii. 291.

(h) Wigram, p. 82, p. 96, p. 169, No. 194 & 5. Declarations to prove intention may be admitted upon the question whether a person in loco parentis intended a double portion for a child or not, (Powys v. Lord Mansfield, 3 My. & Cr. 370, 374,) but that is beside the construction of the instruments themselves.