tent; and if no direct proof can be made of his intent, there the devise is void for its uncertainty.(a) When a devise in a will is to a person, designated by a christian and surname without any other description, and no such person appears to claim the legacy or to have been known by the testator, parol evidence may be admitted to shew, that both the names have been mistaken by the person who took the instructions for the will; as, in the case of Beaumont v. Fell, (1) where a legacy was bequeathed to Catharine Earnley, and the name of the person who claimed the legacy was Gertrude Yardley, the Court established the claim, observing how very material it was, that no such person as Catharine Earnley claimed under the will. Here, there was no ambiguity on the face of the will, but the latent ambiguity was introduced by extrinsic evidence, and the same kind of evidence also shewed, that there was a person of the name of Gertrude whom the testator called Gatty, which name the person who drew the will mistook for Katy; in this case, therefore, as parol evidence was admitted to shew the latent ambiguity, parol evidence was also admitted to explain it. (b) So, where the testator bequeathed his stock in a particular fund, and it appeared that he had not at the time of making his will or afterwards any stock in that fund, having sold out some time before and purchased into another fund, evi (1) 2 P. Wms. 140. See also Dowset v Sweet, Ambl. 175. Bradwin v Harpur, Ambl. 374. Parsons v Parsons, 1 Ves. jun. 266. 3 Ves. jun. 322. [468] * 412 (a) In Revere v Leonard & another, 1 Mass. Rep. 91, it was held that the grantor was incompetent to explain a latent ambiguity in bis own grant, although not interested. The drawer of a marriage settlement, who swore that he drew the deed according to the instructions he received, shall not be allowed to prove that the object or intention of the deed, is different from that which appears on the face, there being no allegation of fraud. Dupree v Me Donald, 4 Desau's Eq. Rep. 209. Vide also Rothmabler v Myers, ib. 215. (5) Vide post 473. n. (a) dence was admitted to shew whence the mistake arose, and the legacy was satisfied out of the new fund, into which the testator had purchased. (1) So, where the devise was "of all my farm and lands called Troguesfarm, now in the occupation of A. C." the Court of King's Bench were clearly of opinion, that two closes in the occupation of L. M. but forming a part of Trogues-farm, would pass under the devise; and that a written notice from the testator to L. M. had been properly admitted in evidence, to shew that he considered them as parcel of his farm called Trogues-farm. (2) Here the devise was sufficiently comprehensive to include the whole of the lands, and ought not to be narrowed by the defective description of the occupation. (a) In the instances, which have been just mentioned, it is to be observed, that, unless the evidence had been admitted, the will could not have taken effect. In the first case, no person was to be found corresponding with the description in the devise; in the second, the testator had no property in the funds, out of which he appointed the legacy to be paid; and in the third, if the closes in question were not to be included as part of the devised farm, the word "all" in the devise would not be satisfied. And the question on the admissibility of parol evidence in such cases will depend principally upon this, namely, 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 (1) Selwood v Mildmay, 3 Ves. jun. 425. 306. (2) Goodtitle dem. Radford v Southern, 1 Maule & Selw. 299. (a) Where the devisor possessing real estate in W devises in the following words: "I give and bequeath, &c. the farm which I now occupy," without any further description, parol evidence was held inadmissible to show that the land of the devisor, in W which had been leased by him, and was in the occupation of the lessee, was intended to be included in the devise. Jackson d. Van Fechten v Sill & others, 11 Johns. Rep. 201. 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 device 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 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 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 *in the adjoining parish; the Court of Common Pleas, after" (1) Doe dem. Brown v Brown, 11 East, 441. Doe v Oxenden, 3 Taunt. 147. Doe dem. Tyrrell v Lyford, 4 Maule & Selw. 550. (2) 2 Bos. & Pull. 593. (3) 3 Taunt. 147. Doe dem. Browne v Greening, 9 Maule & Selw. 171 4701 * 414 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 bis 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 de. visee 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 (1) Vid. supr. 468. (2) Ibid. (3) Doe dem. Oxenden v Sir A. Chichester, 4 Dow, 65. 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, where a testator devises his estate of Blackacre, and has two es tates called Blackacre, evidence must be admitted to shew which of the Blackacres is meant; so if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence must be received to shew 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, ev idence must be admitted to shew 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 reason, 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." 1471] |