1902, Brace, P. J., in Willard v. Darrah, 168 Mo. 660, 68 S. W. 1023 (the devise was to "my well-beloved nephews J. and W. W."; the testator had two grandnephews so named and also two grandsons so named, the latter being his intimates and the former being personally unknown to him; evidence of his repeated declarations that he had bought this land for them and that he had instructed the scrivener in their favor was admitted). “The devise is 'to my well-beloved nephews John and William Willard'; and it is found from the indirect parol evidence that there are two sets of brothers, each named John and William Willard, — the plaintiff and his brother, well-beloved' grandsons of the testator, and two grandnephews, not well beloved' of him, and having no legal or moral claim on his bounty. As to each of these sets of brothers the description contained in the will is partly correct and partly incorrect. It is correct as to the Christian and surnames of each set. It is correct as to neither in the superadded description of relationship to the testator, as the word "nephew," simpliciter, cannot be held to include grandnephews and the inapplicability in this case is re-enforced by the word 'beloved' prefixed thereto. So that the description in the will, when it comes to be applied to those only who can possibly have been intended, is just as equivocal in point of fact as if these additional words of description had been omitted, as in the first case supposed. The description of the persons is partly correct and partly incorrect, leaving something equivocal. The description does not apply precisely to either of these two sets of brothers, but it is morally and legally certain that it was intended to apply to one or the other, thus bringing the case within the rule established by the second class of cases, in which direct or extrinsic parol evidence, including expressions of intention, is admissible. Such evidence was therefore admissible in this case, in order to solve a latent ambiguity produced by extrinsic evidence in the application of the terms of the will to the objects of the testator's bounty, to prevent the fourth clause of the will from perishing, and obviate a partial intestacy of the testator. Its effect is not to establish an intention different in essence from that expressed in the will, but to let in light by which that intention, rendered obscure by outside circumstances, may be more clearly discerned, and the will of the testator, in its entire scope, effectuated according to his true intent and meaning.”

§ 2475. Same: (3) Exception for "Rebutting an Equity" (Legacies, Advancements, and Disinheritance). Wherever in the interpretation of a will, a certain term or legal effect is implied by a general rule of law (and not as a matter of inference from the specific words or phrases of a particular will), the source of such an implication is something external to the will; therefore the reason for excluding declarations of intention (ante, § 2471)- namely, their rivalry with the words of the will, and the risk of their abuse- falls away, and the declarations may be considered. For example, when a testator names an executor, the rule of presumption, that the residue of personalty is by implication bequeathed to him, is a general and artificial rule independent of the particular will. So, too, the counter-presumption that a specific legacy to the executor negatives the implication of a bequest of the residue. Hence, if the rule is to be merely a presumption i. e. if a contrary intent may be established, the ascertainment of the actual intent may include all useful data, including the testator's circumstances and declarations:

1821, Plumer, V. C., in Hurst v. Beach, 5 Madd. 351: “Where the Court raises the presumption against the intention of a double gift, by reason that the sums and the motive are the same in both instruments, it will receive evidence that the testator actually intended the double gift he has expressed; in like manner, evidence is received to repel the presumption raised against the executor's title to the residue from the circumstance of a

legacy given to him; and to repel the presumption that a portion [for a child] is satisfied by a legacy."

Accordingly such has long been the practice in dealing with the artificial rules as to a bequest of the residue to an executor,1 a gift of advancement to a child or a husband, and is capable of application to any general and artificial rule of inference as distinguished from a specific inference founded on a particular document.a

In more recent times an analogous situation has come to be presented under that class of statutes which requires that a child's intestate share be distributed to him, in spite of a testamentary disposal to other persons, unless it is made to appear that the child was "intentionally omitted" from the will. Here the rule of the statute is again merely one of presumption, artificially raised for all wills, independently of a particular document, and corresponding precisely (though reversely in tenor) to the rule which took the residue from the next of kin and gave it to the executor, unless a contrary intent appeared. Hence, unless the statute expressly requires the intent to be ascertained from the will alone,5 the testator's declarations may be considered with the other data.6

§ 2476. Falsa Demonstratio non nocet; General Principle. It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted (ante, § 2458). For example, a devise of " the house owned by me at No. 19 Cedar Street, Millville, Massachusetts," is obviously a mere shorthand indication of some simple but essential attributes of the house. How many stories, rooms, doors, windows, closets, has it? What is the color of paper on the respective walls, the kind of wood in the floors, the number of steps on each stair-flight, the pattern of the window frames? These and a hundred

The

1 1723, Rachfield v. Careless, 2 P. Wms. 158; 1734, Brown v. Selwin, Cas. t. Talbot, 242; 1791, Nourse v. Finch, 2 Ves. Sr. 344, 357; 1794, Clennell v. Lewthwhite, 2 Ves. Jr. 465, 644. earlier doctrine about executors was changed by St. 1 W. IV, c. 40. Compare the following: 1816, Langham v. Sanford, 2 Meriv. 6; 1891, Re Applebee, 3 Ch. 422, 428.

2 1790, Ellison v. Cookson, 2 Ves. Sr. 100, 107; 1897, Finch v. Garrett, 102 Ia. 381, 71 N. W. 429; 1894, Palmer v. Culbertson, 143 N. Y. 213, 38 N. E. 199.

31790, Clinton v. Hooper, 2 Ves. Sr. 173, 181.

Compare the following: 1897, Wentworth v. Read, 166 Ill. 139, 46 N. E. 777 (intent to charge legacies on realty; no extrinsic declarations admissible); 1898, Ingersoll v. Hopkins, 170 Mass. 401, 49 N. E. 623 (will in contemplation of marriage; extrinsic facts excluded; St. 1892, c. 118, construed).

5 As in Michigan: 1898. Carpenter v. Snow, 117 Mich. 489, 76 N. W. 78.

6 1897, Hawhe v. R. Co., 165 Ill. 561, 46 N. E.

240; 1899, Re O'Connor, 21 R. I. 465, 44 Atl. 591; 1889, Coulam v. Doull, 133 U. S. 216, 231, 10 Sup. 253 ("Since under the statute that evidence opens up a question as to the testator's intention which but for the statute could not have arisen, and which by the statute is not required to be determined by the will, we cannot perceive why the disposal of it should be so limited"; applying the Colorado statute, and examining prior cases); 1896, Atwood's Estate, 14 Utah 1, 45 Pac. 1036. Contra: 1895, Re Salmon's Estate, 107 Cal. 614, 40 Pac. 1030.

Distinguish the following question, arising under such a statute: 1898, Callaghan's Estate, 119 Cal. 571, 51 Pac. 860 (will leaving property in A. to grandchildren; the Code, § 1307, would allow them to have an equal share if in the will the testator had "omitted to provide" for them; to show that they had in effect been omitted, evidence that the testatrix did not own or claim any property in A at the time of making the will, excluded, because there was an express provision).

other details would go to fill out the description. Without them, it is imperfect, in an absolute sense. Yet no one would insist that the devise was void for uncertainty, for lack of the addition of these details. Why? Because the features mentioned do happen to suffice to fulfil the purpose of interpretation, namely, to enable us to find the object designated, and to select it with fair certainty from others. Certainty, in other words, is a relative term; it signifies that the few terms employed are the essential ones for the purpose. Had they not been in themselves sufficient, we might even have looked at extrinsic declarations of intention (ante, § 2472).

Conversely, then, an excessive description is not inherently fatal, if the essential terms of it can be ascertained. A devise of " my yellow house at No. 19 Cedar Street" may lead us to a white house at that place; and if we can surely believe, under all the circumstances, that the street number of the house, not the color of the paint, is the essential term, we are to apply the devise to that house. Just as we found that the omitted terms were not essential to applying the description, so we may find that some of the inserted terms are not essential. Each description of a single object must be conceived of as a single utterance, just as one cipher cable word may represent a message of forty words. We are doing it no violence by ignoring the nonessential terms; for neither the omission nor the insertion of non-essential terms alters its essence as a whole. By conceiving clearly the singleness of each description as a symbol of a single object, we appreciate that the imperfections of either omission or insertion do not destroy its character as a single effort at the designation of a single object. And so we come to the maxim Falsa demonstratio non nocet.

The practical problem in a particular case of course is to ascertain which specific term is the essential one. But the important point of principle is that the process of ascertaining it, and then of ignoring the others in the application of the description, is entirely consistent with the general process of interpretation. Ever since the time of Bacon (to go no further back) this has been understood and accepted:

-

Circa 1597, Sir Francis Bacon, Maxims of the Law, XXIV (Works, Spedding's ed., vol. XIV, p. 267): "Præsentia corporis tollit errorem nominis, et veritas nominis tollit errorem demonstrationis. There be three degrees of certainty, presence; name; and demonstration or reference whereof the presence, the law holdeth of greatest dignity; the name, in the second degree; and the demonstration or reference, in the lowest; and always error or falsity in the less worthy shall not control nor frustrate sufficient certainty and verity in the more worthy. And therefore if I give a horse to I. D. being present, and say unto him, I. S. take this; this is a good gift, notwithstanding I call him by a wrong name; but so had it not been if I had delivered the horse to a stranger to the use of I. S. where I meant I. D. So if I say unto I. S., Here I give you my ring with the ruby, and deliver it with my hand, and the ring bear a diamond and no ruby; this is a good gift notwithstanding I named it amiss. . . . Now, for the second part of this rule, touching the name and the reference; for the explaining thereof it must be noted what things sound in name or in demonstration, and what things sound in demonstration or addition; as first, in lands the greatest certainty is, where the land hath a proper name and cognizance; as, 'the manor of Dale,'' Grandfield,' etc.: the next is equal to that, when the land is set forth by

bounds and abuttals, as a close of pasture abutting on the east part upon Emsden Wood, on the south upon, etc.' . . . Therefore if I grant my close called Dale, in the parish of Hurst, in the county of Southampton; and the parish likewise extendeth into the county of Berkshire, and the whole close of Dale lieth in the county of Berkshire; yet because the parcel is specially named, the falsity of the addition hurteth not; and yet this addition did sound in name; but, as was said, it was less worthy than a proper

name."

1861, Caton, C. J., in Myers v. Ladd, 26 Ill. 415, 417: "If I give a bill of sale of my black horses, and describe them as being now in my barn, I shall not avoid it by showing that the horses were in the pasture or on the road. The description of the horses being sufficient to enable witnesses acquainted with my stock to identify them, the locality specified would be rejected as surplusage. Nor is this rule confined to personal property. It is equally applicable to real estate. If I sell an estate, and describe it as my dwelling house in which I now reside, situate in the city of Ottawa, I shall not avoid the deed by showing that my residence was outside the city limits. So if a deed describe lands by its correct numbers, and further describe it as being situated in a wrong county, the latter is rejected. The rule is, that where there are two descriptions in a deed, the one, as it were, superadded to the other, and one description being complete and sufficient of itself, and the other, which is subordinate and superadded, is incorrect, the incorrect description, or feature or circumstance of the description, is rejected as surplusage, and the complete and correct description is allowed to stand alone."

In applying the principle there is no inherent difficulty. The process consists in looking at all the circumstances (ante, § 2470) that can throw light on the sense of the words of description and their relative essentiality; and the terms thus found to be the essential ones are applied, unless they are too uncertain (ante, § 2473) and therefore void. But the superficial bearing of other rules has tended often to create confusion, and to obstruct the full operation of the present one:

(1) The supposed rule against disturbing a "plain meaning" (ante, § 2462). When the present rule is to be applied, a part of the description being found erroneous but non-essential, three situations may be distinguished. First, only one object may be eligible to answer the description; this is the common case (illustrated above by Bacon's examples), about which no difficulty can arise. Secondly, two or more objects may be eligible, the description being in one part imperfect for one, in another part for the other; this is a frequent case, and the rule is equally well settled.1 Thirdly, two or more objects may be eligible, one of which perfectly answers the description, the others imperfectly in some respects. Now in this situation the rule against disturbing a plain meaning (if such a rule be recognized) will of course oblige us to apply the description to the first object, even though it could be made to appear that a part of the description was non-essential and that the essential terms of it were actually used to designate one of the other objects. So far, then, as such a rule is recognized, it prevents the due operation of the present principle.2

(2) The rule against overthrowing the terms of a document by reason of a

1 The only question here is whether declarations of intention may be considered: ante, $ 2474.

2 The cases are collected ante, § 2462; see especially Tucker v. Seaman's Aid Society,

Mass.

mistake (ante, § 2421), or, what is the same thing, by declarations of a contrary intention (ante, § 2471), is a legitimate one, and must be observed. Hence, if a devise is of "my white house at No. 19 Cedar Street," and it is proposed to show that the word "white" was by mistake inserted for "green," this proposal must be rejected as improper. Now, in many of the instances of this sort, that has been the form of the proposal, and the Court's necessary rejection of it has therefore seemed to be a discountenancing of the present principle that falsa demonstratio non nocet. By approaching the problem from the wrong point of view, the party has prevented the document from being rightly dealt with. The words cannot be overthrown from within (as it were), by attacking the terms of the document; but, taking them as they are, they can be interpreted from without, and the imperfect surplusage of description will not prevent the application of its essential terins. Hence, in such cases as above, if the attempt is made to interpret the description by looking at the testator's circumstances, and if the circumstances are that he had one house only on Cedar Street, that it was numbered 19, and that it was in former days painted white, we may then be willing to conclude that the color-term in the description is entirely subordinate and non-essential, and that the now green house at No. 19 Cedar Street is the identical object which the testator was attempting to describe in the words "my white house at No. 19 Cedar Street." In so doing, we make no assumptions whatever as to how the word "white" came into the will, whether by a draftsman's mistake or otherwise; we merely interpret what is found in the document, and we conclude that the description as a whole was used of a particular house. The occasionally improper method of approaching the problem, then, explains most of the rulings in which the present principle seems to be inoperative.

(3) When, in applying the present principle, the imperfect surplusage is ignored, the remainder must of course be sufficiently definite to be capable of application; else it would be void for uncertainty (ante, § 2473). The question, then, often arises whether, in a will, a term may be implied which would be necessary, and also sufficient, to remove that uncertainty. For example, in a devise of "a four-story house at No. 19 Cedar Street," it may appear that the testator owns no house at No. 19, but does own a four-story house at No. 219 on that street; assuming, then, that the house-number is non-essential, the remaining terms are "a four-story house on Cedar Street "; but this is obviously by its vagueness incapable of application. Now it may be assumed that the testator would not have devised a house not owned (or believed by him to be owned) by himself; but the fact remains that the terms of a will are merely "a" four-story house. Is there, then, any stretch of reasoning by which, though not directly inserting the words "owned by me," we may construe the word "a" or "house" as signifying "one of mine," or the like? This is the point of controversy on which

3 Particularly in Kurtz v. Hibner, Ill., cited post, § 2477. 4 In Roman custom, on the contrary, this indirect mode of gift was not uncommon: Just.

many rulings turn; and the general

Instit. II, 20, 4: "Non solum autem testatoris vel heredis res, sed et aliena legari potest; ita ut heres cogatur redimere eam et præstare, vel, si non potest redimere, æstimationem dare."