Canterbury, as it appeared in evidence that the testator lived in Canterbury, and had in his will taken notice of two hospitals in that city. It may often be of importance to inquire, what estate the devisor or grantor had at the time of making his deed or will; for the construction may vary, in some cases, according to the estate or quantity of interest in the subject-matter. (1) If a person grant an estate for life generally without saying whether for his own life or for the life of the grantee, evidence is admissible to show, what interest the grantor had in the premises; for if he was tenant in fee, the grantee would have an estate for his own life; but, if he was tenant in tail or for life only, then the grantee would have an estate for the life of the grantor. (1) (c) Or, if a testator bequeath such a sum in a particular stock, it will be a specific legacy, if he has that stock at the time; not specific, if he has it not.(1) Evidence is therefore admissible, in such a case, to show, what was the state of property at the time he made his will; and the construction upon the will is one way or the other, according to the result. So, in the case of Doe on the demise of Freeland v. Burt, (2) where the question was, whether a cellar, for the recovery of which the action was brought, passed under a lease from the lessor to the defendant, as appurtenant to a yard, which was described in the lease by its abuttals, and as having been late in the occupation of A.; evidence was adjudged to be admissible, on behalf of the plaintiff, to show, that the cellar was, at the time of the execution of the lease, in the occupation of another tenant B.: here the defendant claimed the cellar, not as specifically demised, but as appurtenant to the demised yard, upon the general maxim of law, cujus est solum, ejus est usque ad cœlum et ad inferos;" and the proposed evidence would clearly show, it could not have been the intention of the parties, that the cellar should pass by the lease to the defendant. "Where there is a conveyance in general terms," said Mr. Justice Buller, "of all that acre called. Blackacre, every thing which belongs to Blackacre passes with it; and then the rule which has been mentioned, prima facie (1) See Mr. Justice Bayley's judgment, in Smith v. Doe dem. Lord Jer sey, 2 Brod. & Bing. 551. obtains; but whether parcel or not of the thing demised, is always matter of evidence." Another case, in which evidence of the state and amount of the testator's property has been admitted, is the case of Fonnereaux v. Pointz; (1) (d) where Lord Thurlow received the evidence, not to control a bequest, which was distinctly and accurately described, but because it was uncertain, upon the whole context, whether the testator meant so much per annum or so much as a gross sum. Lord Thurlow decided the case, as a case of ambiguity. And Lord Alvanley, in observing on this case, says, (2)" Lord Thurlow's only doubt was, whether the parol evidence was admissible to ascertain, whether the testator did not mean capital, but he had no doubt he must know all the circumstances of his affairs."(3) In the construction, however, of wills free from ambiguity, the general rule is, that evidence of the value of the estate devised, or of the amount of the testator's property, will not be admitted in order to raise an argument in favor of a particular construction; whatever may be the amount, the general rule of construction must prevail. (4) In the case of Smith v. Doe on the demise of the Earl of Jersey, (5) lately decided by the House of Lords on a writ of error, where the principal question was on a clause of re-entry in a lease, under the execution of a power in a deed of marriage-settlement, by which the settler was authorised to demise by indenture such premises as were then leased for lives, &c. and so as the ancient accustomed rents were reserved, &c. and so as the lease contained a power of re-entry for non-payment of the rent reserved, &c. the House of Lords determined, that it was allowable to prove, that the usual and accustomed form of leases (by which the estate, settled in the marriagesettlement, had been demised, as well before as after the date of the settlement) had contained, a conditional proviso of re Indefinite term in a power. Reference, in the writing, to extrinsic fact. entry similar to the one in the indenture, whose validity was then disputed. "This evidence," said Mr. Justice Bayley, in his judgment in the House of Lords,(1) "is not admitted, to produce a construction contrary to the direct and natural meaning of the words; not to control a provision, which was distinct, and accurately described; but because there is an ambiguity upon the face of the instrument," (for the deed of settlement required the leases to contain a power of re-entry generally, on non-payment of rent, and there are various forms of powers of re-entry;)" because an indefinite expression is used, capable of being satisfied in more ways than one. I look to the state of the property at the time, to the estate and interest which the settler had, and the situation in which the settler stood with regard to the property settled, to see, whether that estate, or interest, or situation, will assist us in judging what the settler meant by that indefinite expression."(e) Where the subject of a devise is described, by reference to some extrinsic fact, it is not only competent, but absolutely necessary, to admit extrinsic evidence for ascertaining that fact, and, through that medium, to ascertain the subject of the devise. This is not done with a view to explain the will, or add to its contents. The evidence is intended only to ascertain what is included in the description which the testator has given of the thing devised. When there is a devise of an estate purchased by A., or of a farm in the occupation of B., it must be shown by extrinsic evidence, what estate it was that A. purchased, or what farm was in the occupation of B., before it can be known what is devised. (2) So, where a testator made a direction in his will, respecting a certain payment for a house, which amounted in effect to a devise of so much of the produce of timber, ordered to be cut down, as should be sufficient to pay for the house, the Master of the Rolls held, that there was nothing in the fact referred to, (namely, an antecedent order for cutting down timber) which could justly make it less a subject of extrinsic evidence, than the facts in the other cases above alluded to. The moment it is shown that it was a given number of trees, or a quantity of trees amounting to a certain fixed value, (1) 2 Brod. & Bing. 553. 5 Barn. & Ald. 387. (2) 1 Merivale, 653, by Sir W. Grant. on a certain estate, that the testator had ordered to be cut down, the subject of the devise is rendered as certain as if the number, value or situation of the trees had been specified in the will. (1) (ƒ) It appears from some of the cases above cited, that the words of an instrument, in themselves conveying a general right to an estate, may in certain cases be limited and restrained by the manner in which the estate has for a length of time been actually enjoyed. But in the construction of a legal instrument Covenant not where the question is, whether a party is bound by his covenant to be construed by the party's to do a certain act, (as, for example, to grant a renewal of a acts. lease,) courts of law will not consider the acts of the parties or their interpretation of the instrument. In one case, indeed, where it was doubtful, whether a covenant for renewal extended to a perpetual renewal, and the parties had renewed four times successively, the Court of King's Bench held, that the legal effect was a perpetual renewal, on the ground that the parties themselves had, by their own acts, put a construction on the covenant, and that the Court could not say the contrary. (2) But this case has been frequently disproved of, (3) and a different rule is now established. "It cannot be a legal inode of construction (said the Master of the Rolls, in a case of this kind,) that a party who has done an act, which he was not bound to do, or from a mistake, should therefore be bound forever without the power of retracting."(4) (g) SECT. II. Of the Admissibility of Parol Evidence to vary or discharge Writ ten Instruments. It is a general rule of law, that parol evidence cannot be admitted to contradict, add to, or vary the terms of a will, deed, or other written instrument. First, with respect to wills; (1) Sandford v. Raikes, 1 Merivale, 646, 658. (2) Cooke v. Booth, Cowp. 819. (3) Baynham v. Guy's Hospital, 3 Ves. 498. Eaton v. Lyon, 3 Ves. 694. Iggulden v. May, 9 Ves. 333. 7 Bos. (4) Moore v. Foley, 6 Ves. 238. (f) See Note 958, p. 1420. (g) Seo Note 959, p. 1425. Wills. Deeds. Nature of bond. The statutes of the 32d and 34th of Henry VIII., which gave the power of devising lands by a last will and testament in writing, must clearly have intended, that what ever is effectual and to the purpose, ought to be in writing, and sufficient without the aid of words not written; and therefore no parol evidence of the testator's intention can be admitted to control or enlarge the terms of the will.(1) will. (1) An additional reason for this rule is supplied by the statute of frauds, which enacts, that all devises of lands, &c. must be in writing, and are not revocable except by some other will or codicil, or by some act, as cancelling, &c. And with regard to wills of personal property, it is evident from the 22d section of the statute of frauds, that no unwritten declaration of the testator can be admitted to vary any bequest; for that section enacts, "that no will in writing concerning goods, chattels, or personal estate, shall be repealed, and that no clause shall be altered or changed, by any words or will by word of mouth only, except the same be in the lifetime of the testator committed to writing, and after the writing read to the testator, and allowed by him, and proved to be so done by at least three witnesses. (2) (h) Parol evidence is not admissible to contradict, or vary or add to, the terms of a deed. (3) "It would be inconvenient," says Lord Coke, "that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by an averment of parties, to be proved by the uncertain testimony of slippery memory; and it would be dangerous to purchasers and all others in such cases, if such made averments against matter in writing should be admitted. (i) In an action of debt, therefore, on a bond conditioned to pay a sum of money on a certain day, the defendant cannot show, that the bond was intended as an (1) Brett v. Rigden. Plowd. Com. |