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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 shew, that he intended to include other property not within that description (1). 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 shew 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 Common Pleas were afterwards equally divided in opinion on the question of its admissibility. In a much later case (3), however, 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 shew, 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

(1) Doe dem. Brown v. Brown, 11 East, 441. 3 Taunt. 147.

(2) 2 Bos. & Pull. 593.

(3) Doe dem. Sir A. Chichester v. Oxenden, 3 Taunt, 147. A motion for a new trial was made in Mich. term 1814, in the case of Doe on the demise of Brown v. Green, (which was tried by Mr. Justice Dallas at Gloucester,) ou

the ground of the rejection of evidence. 'The devise was of the testator's "estate at Coshulm," and evidence was offered, to shew, that the testator intended to devise other premises besides those at Cosbolm, which was refused. And the Court of King's Bench were of opinion, that the evidence had been properly rejected, and refused to grant a rule.

in the adjoining parish; the Court of Common Pleas, after hearing two arguments, determined against its admissibility. The Chief Justice, Sir James Mansfield, in delivering the judgment of the Court, after 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."

In the case of Thomas v. Thomas (3), 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-granddaughter, Mary Thomas, the defendant, the only person of that name in the family, but who lived in another place, and had never been in Merthyr parish; the plaintiff's

(1) Vid. supr. 411. (2) Vid. supr. 411.

(3) 6T. R. 671. And see Lord Walpole v. Lord Cholmondeley, 7T.R.

138.

counsel

counsel at the trial offered parol evidence to shew, 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 shew 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

(1) See 8 Vin. Ab. 312. pl. 29.; and Hampshire v. Pierce, 2 Ves. 216., cited by Lawrence J. 6 T. R. 678. See ante, p. 412.

been

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biguity.

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."

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," 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 speciality, 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, but never by averment, but rather shall make the deed void for uncertainty."

And in the case of a will, if any devise is expressed doubtfully and with uncertainty, the only construction, which it

(1) Bac. Elem. rule 23.

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 devisee cannot be explained by parol proof (1). So in a case, where the testator made dispositions in his will to several persons, among others to his wife and niece, who were the only women mentioned in the will, and then devised "to her" a particular estate for life, the question was whether parol evidence could be admitted, to shew which of the two was intended; the Lord Chancellor refused to receive it, on the ground that it would tend to put it in the power of witnesses to make wills for testators; the Court held, that though the term "her" was relative, it was to be referred in this case to the wife, because in other parts of the will it seemed to relate to the wife; but expressly excluded the parol evidence offered to explain the will (2). However, courts of law as well as courts of equity will admit evidence of the situation and circumstances of the parties, for the purpose of assisting them in putting a construction on wills, that are not clearly expressed; as, in the case of Masters v. Masters (3), where the testator, after having bequeathed a legacy to the poor of two hospitals in Canterbury, (naming them,) bequeathed another sum in his codicil "to all and every the hospitals," the second bequest was adjudged net to be void for uncertainty, but to have been intended for all the hospitals in Canterbury, as it appeared in evidence, that the testator lived in Canterbury, and had in his will taken notice of two hospitals there. But 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 favour of a

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