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. (1) 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, (2) 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 not 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 tak en notice of two hospitals there. (a) 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 particular construction; whatever may be the amount, the general rule of construction must prevail. (3) (b)

(1) Castleton ▾ Turner; cited 2 Ves.

217.

(2) 1 P. Wms. 420. See also Harris v Bishop of Lincoln, 2 P. Wms. 135. Sir J. Eden v Earl of Bute, 3 Bro. Parl. C. 79. Doe v Burt, 1 T. R. 701. Sel wood Mildmay, 3 Ves. jun. 310. 6 Ves. 396. 13 Ves. 174. 15 Ves. 514.

Herbert v Reid, 16 Veg. 481.

(3) Doe dem. Handson Fyldes, Cowp. 833. Standen v Standen, 2 Ves. jun. 593. Richardson v Edmonds, 7 T. R. 640. Doe v Dring, 2 Maule & Selw, 455. Bootle v Blundell, 1 Merivale, 216.

* 418

(a) Vide Doe d. Barnes v Provoost, 4 Johns. Rep, 63.

(b) The testator Murray, having amassed a large property in the East Indies, hipped goods on board of a vessel at Calcutta, which were consigned to the de

A blank in a will for the devisee's name is an instanc

[475] of apparent ambiguity, and parol evidence cannot be a

mitted to shew what person's name the testator intende
to insert. (1) (a) But on a bequest to a person, whos
surname was mentioned with a blank left for the Chris
tian name, the party who claimed the legacy, was allow
ed not only to prove acts of kindness and constant affec
tion on the part of the deceased, but to shew further tha
the testator had said, "he would provide for him, an
that he had left him something by his will;" (2) and i
another case, where only one initial appeared in the
will, (the bequest being "to Mrs. G." without any oth
er description,) the Chancellor referred it to the maste
to receive evidence, to shew who was the person in
tended to be described by that initial. (3) The distinc
tion between these cases is, that in the former, there is
no description whatever of a devisee, and whether the
testator had selected any person as the object of his de
vise is entirely uncertain on the face of the will; but in

(1) Baylis v The Attorney-General, 311.
2 Atk. 239. Castledon v Turner, 3
Atk. 257. Hunt v Hort, 3 Bro. Ch. C.

(2) Price v Page, 4 Ves. jun. 680.
(3) Abbot v Massie, 3 Ves. jun. 148.

endants: and also engaged his passage for America on board of a vessel belong ing to the defendants. Before the vessel sailed, the testator had a fall from a horse, and was so much injured that his life was despaired of, and he in consequence made his will, and soon after died. The will contained the following clause: "All my property which has been remitted home by me from this country to America, I desire may remain in the hands of those to whom I sent it, for their own use." A subsequent clause in the will was, "the property now going to America, I do not consider as belonging to any person." In an action by the administrator cum testamento annexo, against the consignees of the goods to recover their value, the defendants set up a claim to the property under the above clauses in the will, and offered in evidence parol declarations of the testator subsequent to making the will, that he intended the property should be theirs as a compensation for the loss and expense which they had sustained in fitting the cabin of the ship for his accommodation, and rejecting passengers and freight : the evidence having been admitted at the trial, on a motion for a new trial it was held inadmissible. Richards v Dutch, 8 Mass. Rep. 506.

(a) The name of one of the children of the testator being omitted in his will by mistake, the court admitted parol proof of the mistake and rectified it. 4 Desau's Eq. Rep. 85.

the two last cases, the testator has given some descrip tion, and though it would appear too slight and general for the information of strangers, yet to persons well ac quainted with the testator, it might be sufficiently full and distinct; in the first of these two cases, the testator might not have known the Christian name; in the other, the description in the will might have been the only one, by which the testator used to designate the claimant. (a)

When a blank is left in a written agreement, which need not have been reduced into writing, and would have been equally binding, whether written or unwritten, *(as if the agreement were to deliver goods to the amount of less than ten pounds, and a blank were left for the quantity of goods to be delivered,) in such a case, it is presumed, in an action for the non-performance of the contract, parol evidence might be admitted to shew the quantity, for which the parties agreed; for a memorandum in writing was not required in this case by the statute of frauds, and the proposed evidence would not contradict any part of the written agreement, but merely supply an omission, where nothing need have been expressed. And where a written instrument, which was made professedly to record a fact, is produced as evidence of that fact which it purports to record, and a blank appears in a material part, the omission may be supplied by other proof. Thus, if a bishop's register were to be produced in evidence, for the purpose of shewing a presentation by a patron, under whom the plaintiff claims, and on the production of the register, a blank should appear in the place where the patron's name is usually inserted, the presentation might be proved in some other way; (1) as by a witness, who was present, and heard

(1) Bishop of Meath v Lord Belfield 1 Wils. 215.

(2) A blank left in an award for a name, was allowed to be supplied by pareb proof. Lynn's Risberg, 2 Dall. 180.

* 419

(478)

Usage to exancient

plain charters, &c.

* 420

the presentation. So, in the case of a surrender of a copyhold by a steward, if there is any mistake in the entry, that is only matter of fact, and the courts of law will in that case admit an averment, that there was a mistake either as to the lands or uses. (1) (a)

In the construction of written instruments, words are to be understood according to their common and general acceptation at the time when the instrument was made, (2) and with reference to the nature of the subject. If the language in ancient charters is become obscure from its antiquity, or the construction is doubtful, the constant and immemorial usage under the instrument may be resorted to for the purpose of explanation, (3) though it can never be admitted to control or contradict the express provisions of the instrument. Such continued usage is a strong practical exposition of the mean

(1) Towers v Moor, 2 Vern. 98.
(2) Vaugh Rep. 169. Com. Dig. tit.
Parols. (A.)

(3) R. Varlo, Cowp. 248. Gape v
Handley, 3 T. R. 283. o R. v Bell-
ringer, 4 T. R. 810. R v Osbourne, 4
East, 333 Bailiff, &c. of Tewkesbury

v Bricknell, 2 Taunt. 120. R. v Mayor of St. Alban's, 12 East, 559. R. v Mayor, &c. of Stratford upon Avon, 14 East, 348. R. v Mayor, &c. of Chester, Maule & Selw. 101. Mayor of London v Long, 1 Campb. 22.

(a) In the case of Peish v Dickson, 1 Mason Rep. 10, Judge Story says, "Latent ambiguities in written instruments may be removed by parol evidence, for they arise from the proof of facts aliunde; and where the doubt is created by parol evidence, it is reasonable that it should be removed in the same manner. But latent ambiguities exist in the contract itself, and if the language be too doubtful for any settled construction, by the admission of parol evidence you create and do not merely construe a contract; you attempt to do for a party that which he has not chosen to do for himself; and such authority is very properly denied to courts of justice. The difficulty therefore lies not in the rule itself, but in applying it to particular cases. There seems indeed to be an intermediate class of cases, partaking both of the nature of latent and patent ambiguities, and that is when the words are all sensible and have a settled meaning, but at the same time consis. tently admit of two interpretations according to the subject matter in contemplation of the parties. In such cases, I should think parol evidence might be admitted to show the circumstances under which the contract was made, and the subject matter in the contemplation of the parties. Vide also Livingston v TenBroeck, 16 Johns. Rep. 14.

ing of the parties. (a) Even in the case of an act of parliament, universal usage has been referred to as a proper expositor, where the language is doubtful. (1) Lord Coke, in commenting on the statute of Gloucester, says, that when any claimed before the justices in eyre any franchises by ancient charter, if the words were general, and a continual possession was pleaded of the franchises. claimed, or if the claim was by old and obscure words, and the party in pleading expounded them to the court, and averred continual possession according to that exposition, the entry was ever, inquiratur super possessio nem et usum; and this, adds Lord Coke, "I have observ. ed in divers records of those eyres, agreeably to that old rule, optimus interpres rerum usus." (2) And the uniform course of modern authorities fully establishes the rule, that, however general the words of ancientg rants may be, they are to be construed by evidence of the manner in which the thing has been always possessed and used. (3) Thus, on an information to set aside an election to a perpetual curacy, it appeared that the impropriate rectory, out of which the curacy arose, had been granted in trust for the use of the parishioners and inhabitants of a parish for ever; on the part of the relators it was insisted, that the right of nomination to the vicarage ought to be confined to inhabitants paying scot and lot, or to persons paying to church and poor; and

(1) Sheppard v Gosnold, Vaugh. 169. and see R. v Scott, 3 T. R. 604. (2) 2 Inst 282.

(3) Weld v Hornby, 7 East, 199. R.. v Osbourne, 4 East, 327.

[477]

(a) In patents of great antiquity, where the description of the land is vague and the construction somewhat doubtful, the acts of the parties, the acts of government, and of those claiming under adjoining patents, are entitled to great weight in the location of the grant. Jackson d Schenck v Wood, 13 Johns. Rep. 346. When the language of a deed admits of but one construction, and is clear and pertinent, it cannot be controlled by any different exposition to be derived from the practice under it. Cortelyou v Van Brundt, 2 Johns. Rep. 357. But if the words in an ancient deed are equivocal, evidence of the usage of the parties under the deed is admissible to explain them. Jackson d. White v Cary, 16 Johns. Rep.