Of the dis

tinguishing

characteris

tics of a patent and latent ambiguity.

*[20]

the words which in themselves express uncertainty, and

suppose

a plurality of individuals equally included within the terms of a gift intended for one only, and therefore present an ambiguity in the very face of the will.(8)

If the ambiguity occurs in the wording of a will, producing a palpable uncertainty on the face of it, extrinsic evidence cannot remove the difficulty, without putting new words into the mouth of the testator, which, in effect, would be to make a will for him: but if a will presents no ambiguity independently of facts, the uncertainty which arises must come from behind the instrument, and is, in this consideration of the phrase, with propriety called a latent ambiguity; *and indeed to a certain extent extraneous evidence must be resorted to in establishing the title under any devise, since, let the words be ever so clear, the person designed can only bring himself within the description in foro contentioso, by proof of his identity.

The late Chief Justice of the King's Bench, in the case of Thomas v. Thomas, 6 T. R. 676, makes this observation: "It

(8) I have transcribed the following note from Edward Altham's case, 8 Rep. 155, as furnishing several examples illustrative of the part. of the subject above treated: "If A. levies a fine to William his son, to have and to hold to him and his heirs; upon this fine the judge cannot make a question of any matter of law; but now the party comes and avers in fact, and says, that A. had two sons, named William, an elder and a younger, and that his intent was to levy the fine to William the younger; this averment out of the fine is good of this matter of fact, which well stands with the words of the fine, and shall be tried by the country. But if a man by deed gives goods to one of the sons of J. S. who has divers sons, here it shall not be averred which son was intended; for by judgment in law upon this deed, this gift is void for the uncertainty, which cannot be supplied by averment. So if a man levies a fine of the manor of S. or of the manor of D. to two et hæredibus, and in truth there is the manor of North S. and South S. or Great D. and Little D. in this case issue may be taken dehors, which manor the conusor intended to pass, for that is matter of fact, not apparent in the fine, whereof the judge cannot take conusance; but it stands well with the fine, and shall be tried by the jury. But where the words whereby the estate is limited are to two et hæredibus, that is apparent in the fine, and by judgment of law, these words, et hæredibus, are uncertain and void, and no averment dehors can make that good which, upon considera tion of the deed, is apparent to be void."

* [ 22 ]

has been a long established rule, that where there is a latent am-
biguity in a will, the parties may go into extrinsic evidence to
render that certain, which, without the aid of such evidence, is
uncertain; but here the evidence has itself raised the ambiguity;
on the face of the will there is no uncertainty." This passage
seems to imply, that where there is no uncertainty on the face
of a will, but the evidence raises the ambiguity, the case is in-
curable. Possibly, however, his lordship did not mean to be so
understood,(9) since there would be senseless tautology in the [21]
phrase of latens ambiguitas, unless it imported an ambiguity not
existing on the face of the instrument, but lying *behind in the
dubiousness of the objects to which its provisions were directed,
and therefore capable only of being exhibited by reference to
those subjects through the medium of external evidence. The
word latent, as a mere emphatic or descriptive, and not a distinc-
tive epithet, would be an example of the most imbecile verbosity;
while the opposite phrase of patent ambiguity, being deprived
of its correlative, must also lose its discriminative force, and be:
come perfectly unintelligible and contradictory. The truth will
be found upon consideration to be, that the state of facts raises
the latent ambiguity,(/) and may also dissolve it; but the patent
ambiguity resides in the amphibology of language, the vague.
ness of description, or the vacuity of expression, and can be ex-
pounded only by the context and general sense of the instrument.
Thomas v. Thomas,(m) above referred to, was a case of the am-
biguitas latens, wherein the words of the will comprised a clear
and certain description, but the parol or extrinsic evidence rais-
ed the doubts, and produced circumstances to suspend in equili-
(2) 1 Bro. 85.
(m) 6 T. R. 676.

Of the mix.

(9) Though the ambiguity which is raised by state of facts dehors the instrument is called the latent ambiguity, and that which is produced ed case of la merely by the words of the instrument, is denominated the ambiguity tent and papatent; and it is generally said with truth, that the species of ambi- tent ambiguity, guity last mentioned excludes, and the former admits, parol and extrinsic evidence; yet, upon a close attention to the examples in the `books, we shall find that the discriminating line is very difficult to be drawn in many instances, and we shall be forced to allow, that there is an ambiguity answering to the terms of the description of a latent ambiguity, which, nevertheless, partakes of the character and consequen

C

1

brio the inferible intention of the testator. The state of facts in that case displayed the latent ambiguity; which facts were shortly these.

ces of an ambiguity patent. Thus, if by a reference to external circumstances the intention of the framer of, or parties to, an instrument is not only thrown into doubt, but the language used becomes irreconcilable and contradictory, so as to be incapable of expressing any intention with certainty; this sort of ambiguity, whether denominated patent or latent, is such as will not yield to any evidence of extraneous and collateral declarations. The case of Lord Walpole v. Lord Cholmondley, may help to explain what is here meant to be conveyed. The devisor had made a will in the year 1752, and another in 1756 with a difference from the former in respect to the limitations of the real estate, without disposing of his personalty, or appointing executors by either; and by his codicil, (stating that by his last will. dated 1752, he had made no disposition of his personalty) bequeathed his per sonal estate, and appointed executors. A doubt arose upon the production of the two wills, whether the will of 1752 was or was not set up again by the recital of the codicil, which agreed with that will in the reference to the date, but with the will of 1756, as being the last will in the order of time. External evidence of facts and declarations was offered, to show that the testator had no design of revoking the will of 1756; and to enforce the propriety of receiving this evidence, it was contended, that as the ambiguity was introduced by the production of matter external, viz. the fact of the existence of the two wills, the one agreeing with the reference in the codicil as to the date, the other answering to the word last in the codicil, parol and extrinsic evidence ought to be admitted to explain the doubt, as constituting what is called in law a latent ambiguity. But the judges of the court of King's Bench thought the evidence not admissible, grounding their judgment upon a denial of the existence of any ambiguity at all, the word last being, in their apprehension, no counterpoise to the clear reference to the date of the earlier will; inasmuch as all wills, being ambulatory till the death of the testator, there is properly no last will until that time arrives, and his calling his will of 1752 his last will, was only to signify his intention that that will should be his last. This judgment was not, as has been said, received by the bar with entire acquiescence. It has the humble suffrage of the writer of these pages, who ventures to add, that if the word last could have balanced against the reference to the date of the prior will, the ambiguity resulting from these incongruous senses, whether we call it latent or patent, could not have been explained by the introduction of extrinsic evidence, without

* 7 T. R. 138.

The testator devised lands to Mary Thomas, of Llechlloyd, in Merthyr parish, and it turned out in fact that the testator, at the time of his death, had a grand aunt, of the name of Elinor Evans, who lived at Llechlloyd, in Merthyr parish, and a greatgrand-daughter, Mary Thomas, an infant, of the age of two years, *[ 23 ] the only person of that name in the family; but it appeared that she lived at Green Castle, in the parish of Llangain, at the distance of some miles from Merthyr, in which place she had never been. Here there was a person in existence to answer to the name in the devise, but she was neither the grand-daughter, nor living at Llechlloyd, in Merthyr parish, and there was another person of the family who was the testator's grand-daughter, and of Llechlloyd, in Merthyr parish, but to whom the name did not apply. The judge at nisi prius received the evidence (subject to the opinion of the court as to its admissibility) to show that the name of Mary Thomas was inserted by mistake for that of Elinor Evans; but the jury were not persuaded by it, so that the admissibility of that evidence did not come to be judicially decided. The contest between these claimants, to neither of whom the words of the disposition corresponded, opened the way, by the uncertainty appearing on the parol evidence, for the title of the heir at law. After the jury had found that there was no mistake in the name, the question of course lay wholly between Mary Thomas and the heir at law, or, in other words, the only consideration which remained was, whether the description was applicable, with sufficient certainty, to entitle her as the object of the disposition; in which shape of the contest the distinction which has been above shown to have been taken in Beaumont v. Fell,(n) in fa

(n) 2 P. Wins. 141.

the sacrifice of judicial consistency. It seems to be a settled and clear principle, that contradictions cannot be explained. To establish what is irreconcilable with itself, we must remove a part, which is not to explain, but to alter. It is true, the uncertainty of language, and the opposite tendencies of different passages, regarding the same thing or person, are frequently remedied in law, by settled rules of construction, as will be shown in a subsequent part of this introduction; but in such cases, the ambiguity does not come into existence in legal contemplation, and consequently, no question respecting the admission of parol evidence becomes a subject of discussion.

vour of those cases of defective dispositions, where the person in tended was clearly perceived through the mistake, and no person was in existence to claim under the erroneous description, became very important; for though the jury had put to silence the pretensions of Elinor Evans, the court thought that inasmuch as the description both of place and relationship was applicable to her, such a degree of uncertainty as to the person intended was thereby introduced as was sufficient to exclude the application of the maxim of falsa demonstratio non nocet; for that rule will only ap*[ 24 ] ply si *constat de persona.(10) And therefore, as Elinor Evans could not take because nothing but the description or demonstratio belonged to her, and there was a person in existence and claiming, to whom the name applied, so neither was Mary Thomas suffered to take under the devise, because nothing but the name applied to her, and the description both as to place and kindredwas precisely appropriate to another person in existence and con. tending for the preference on these grounds.(11)

Of the effects of a

It is to be observed, that neither the christian nor surname of false or true Elinor Evans agreed with the name in the will; but where the description. mistake has only been in the christian name, and the instrument has contained a full and exact description of the person so imperfectly designated by name, although there has existed another person wholly answering to the name in both particulars, the correctness and circumstantiality of the description has outweighed the advantage on the other side arising from the coincidence in both the christian and surnames. As where the devise was to the Rev. Charles Smith, of Stapleford Tawney, in the county of Essex, clerk, and the legacy was claimed by the Reverend Richard Smith, of Stapleford Tawney, in the county of Es

(10) But a true description will assist a wrong name, if there is no other person of the name. 2 Vez. 217. And if there is a certain description, and a further description is added, it is immaterial whether

the superadded description be true or false. See Bradwin v. Harpur, Amb. 375. Which case presents an instance of a transposition of parties, the legacy intended for one being given to the other, by a very evident mistake of the names.

(11) In this case, the first ambiguity was ambiguitas latens, for it only appeared by reference to outward circumstances; but these facts and circumstances, which produced the ambiguity, offered no media for its explanation; and this is the proper description of an incurable latent ambiguity.