Latent ambiguity.

1. With reference to the

estate.

whether the evidence is necessary to give an effective operation to the devise, or whether, without that evidence, there appears to be sufficient to satisfy the terms of the devise, and the intention of the testator as expressed on the face of the will. If the testator has left property, which corresponds with the description in the will, extrinsic evidence is not admissible to show, that he intended to include other property not within that description. (1) (r)

“

In the case of Whitbread v. May (2), where the testator having devised all his estates in trust for his son for life with remainder over in strict settlement, &c., by a codicil afterwards revoked his will so far as it related to his estate at Lushill, in the county of Wilts, and Hearne and Buckland, in the county of Kent, which he devised to his son in fee," it appeared, that, at the time of the devise, the testator had lands in the parish of Hearne and in several other parishes, all which he had purchased by one contract from one person; evidence was then offered to show, that the testator, by the description of his "estate at Hearne," meant to designate and include not only the lands in that parish, but also all the other lands which he had purchased at the same time. This evidence was received at the trial, subject to the opinion of the Court above; and the Court of Cominon Pleas were afterwards equally divided in opinion on the question of its admissibility.

In a much later case, however, the case of Doe on the demise of Sir A. Chichester v. Oxenden, (3) which was very similar to the last, the Court of Common Pleas adjudged such evidence to be inadmissible. The question there was, whether on a devise of the testator's "estate of Ashton," parol evidence could be admitted to show, that the testator intended by that description to devise all his maternal estate, which consisted of two manors in the parish of Ashton, and another manor in the adjoining parish; the Court of Common Pleas, after hearing two argu

(1) Doe dem. Brown v. Brown, 11 East, 441. Doe v. Oxenden, 3 Taunt. 147. Doe dem. Tyrrell v. Lyford, 4 Maule & Selw. 550. Tytler v. Dalrymple, 2 Merivale, 419.

(2) 2 Bos. & Pull. 593.

(3) 3 Taunt. 147. Doe dem. Brown v. Greening, 3 Maule & Selw. 171. Beaumont v. Field, 1 Barn. & Ald.

247.

ments, determined against its admissibility. The Chief Justice, Latent Sir James Mansfield, in delivering the judgment of the court, after ambiguity. premising that he had felt considerable doubts on the subject in consequence of the case of Whitbread v. May, in which case the Court was equally divided on the admissibility of parol evidence, adverted to the case of Beaumont v. Fell(1), and to the similar case of Dowset v. Sweet(2), and observed on these cases, that although it was not expressly stated to have been necessary to receive the evidence in order to give effect to the will, yet that ground of determination might be inferred. "It will be found," said the Chief Justice, "that the will would have had no operation, unless the evidence had been received. But, in the case now before the Court, the will has an effective operation without the evidence proposed; every thing will pass under it, that is, in the manor or parish, or what he would naturally call his Ashton estate. This will be an effective operation; and, this being so, the case in this respect differs from all the others; because in them the evidence was admitted to explain that which, without such explanation, could have had no operation. It is safer not to go beyond this line. Only those premises, therefore, will pass under the devise, which are in the manor or parish of Ashton.

Soon after this decision of the Court of Common Pleas, the devisee brought an action of ejectment against the heir at law, and offered at the trial the evidence before mentioned; on the rejection of which, a bill of exceptions was tendered; and the case was brought up to the House of Lords on a writ of error. (3) The question on the admissibility of the evidence was referred to the Judges; and Lord Chief Justice Gibbs delivered their unanimous opinion, that the evidence ought not to be admitted. "The courts of law," said the Chief Justice, "have been jealous of the admission of extrinsic evidence to explain the intention of a testator; and I know only of one case, in which it is permitted, that is, where an ambiguity is introduced by extrinsic circumstances. There, from the necessity of the case, extrinsic evidence is admitted to explain the ambiguity; for example,

(1) Vide supra, p. 532.

(2) Ambl. 571.

(3) Doe dem. Oxenden v. Sir A. Chichester, 4 Dow. 65.

Latent

ambiguity.

2. With reference to the devisee.

where a testator devises his estate of Blackacre, and has two estates called Blackacre, evidence must be admitted to show, which of the Blackacres is meant; or, if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence must be received to show, which of them the testator intended. And so, also, if one devises to his nephew William Smith, and has no nephew answering the description in all respects, evidence must be admitted to show, which nephew the testator meant, by a description not strictly applying to any nephew. The ambiguity there arises from an extrinsic fact or circumstance, and the admission of evidence to explain the ambiguity, is necessary to give effect to the will; and it is only in such a case that extrinsic evidence can be received. It is of great importance, that the admission of such extrinsic evidence should be avoided, where it can be done, that a purchaser or an heir at law may be able to judge, from the instrument itself, what lands are or are not affected by it. Here the devise is of all the devisor's estate at Ashton (for there is no difference between the words "estate of Ashton" and "estate at Ashton"), and he has an estate at Ashton, which satisfies the description. It is true, he has other lands, which come to him along with his estate of Ashton; but they are not therefore comprised in the words " my estate of Ashton." If a testator should devise his lands of or in Devonshire or Somersetshire, it would be impossible to say, that you ought to receive evidence, that his intention was to devise lands out of these counties; and for the same when the testator here describes the lands as his estate of Ashton, you cannot receive extrinsic evidence to extend this to other lands not of Ashton."(s)

reason,

In the case of Thomas v. Thomas (1), where the testator had devised to his grand-daughter Mary Thomas, of Llechlloyd, in Merthyr parish, it appeared, that, at the time of his death, he had a grand-daughter of the name of Elinor Evans, one of the lessors of the plaintiff, who lived in the place and parish named in the will, and also a great-grand-daughter, Mary Thomas, the defendant, the only person of that name in the family, but who lived

(1) 6 T. R. 671. And see Lord Walpole v. Lord Cholmondeley, 7 T. R. 138.

ambiguity.

in another place, and had never been in Merthyr parish; the plain- Latent tiff's counsel at the trial offered parol evidence to show, that the person who drew the will, had made a mistake in the name of the devisee; and Mr. Justice Lawrence received the evidence (1), subject to the opinion of the court above on its admissibility; but as the jury were of opinion, that the name had not been inserted by mistake, and therefore found for the defendant on the first count, which laid the demise from Elinor Evans, the admissibility of this evidence did not afterwards form any part of the argument. After this finding of the jury, the question was between Mary Thomas and the plaintiff on a demise from the heir at law, and in this stage of the cause the defendant's counsel offered evidence of declarations made by the devisor previous to the making of his will, expressive of his regard for the plaintiff, and of his intention of giving her the premises in dispute. But this evidence was rejected, on the ground, that nothing dehors the will could be received, to show the intention of the testator (which could only be collected from the words of the will itself), after the removal of any latent ambiguity in the description of persons or other terms in the will. And this opinion was afterwards affirmed by the Court of King's Bench. "If there had been no person," said Lord Kenyon, "to answer the description of grand-daughter, living at Llechlloyd, in Merthyr parish, I should have rejected the description, and have said, that the devise applied to Mary Thomas; but it appears that there is another person answering that part of the description, who is also in another part of the will an object of the testator's bounty. Then, as there are two parts of the description not answering to Mary Thomas, who is named in this clause of the will, we are left to conjecture who was meant by the devisor; but the law will not allow an heir at law to be disinherited by conjecture. And with regard to the other question respecting the rejection of evidence," added Lord Kenyon, "it was properly rejected; the supposed declarations having been made by the testator long before the will was made: but had they been made at the time of making the will, I should have thought them admissible evidence." (t)

(1) See 8 Vin. Ab. 312, pl. 29; and Hampshire v. Pierce, 2 Ves. 216, cited by Lawrence, J., 6 T. R. 678.

Patent ambiguity.

Patent ambiguity.

Uncertainty in devise.

Secondly, with respect to patent ambiguities.

If a clause in a deed, or will, or any other instrument, is so ambiguously or defectively expressed, that a court of law, which has to put a construction on the instrument, is unable to collect the intention of the party, evidence of the declaration of the party cannot be admitted to explain his intention; but the clause will be void on account of its uncertainty. In many cases an apparent uncertainty may be removed by collecting the general intention from other passages in the writing, so as to make the whole consistent: or by a reference to some event, or some other writing, or some medium of explanation, adverted to in the instrument. But when, after comparing the several parts of a written instrument, and collecting all the lights which the writing itself supplies, the intention of the parties still appears to be uncertain, parol evidence of their intention is not admissible. "Ambiguitas patens," says Lord Bacon (1), (that is, an ambiguity apparent on the deed or instrument) "cannot be helped by averment; and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averment, and so in effect to make that pass without deed, which the law appoints shall not pass but by deed. It holds generally," he adds, "that all ambiguity of words within the deed, and not out of the deed, may be helped by construction, or in some. cases by election, (u) but never by averment; but rather shall make the deed void for uncertainty."(v)

And in the case of a will, if any devise is expressed doubtfully and with uncertainty, the only construction which it is capable of receiving, is by comparing it with the other parts of the will; the declarations of the testator are not admissible to remove the apparent ambiguity, or to explain his intention. As, for example, if the devise is to "one of the sons of J. S." who has several sons, such an uncertainty in the description of the de

(1) Bac. Elem. rule 23. Doe dem. 550. Lord Cholmondeley V. Lord Tyrrell v. Lyford, 4 Maule & Selw. Clinton, 2 Merivale, 343.