intended, in lieu of dower, though it may, in equity. And where it was attempted, in chancery, to show by papers, letters, and sayings of the testator, that he had a certain intent, in making his will, the court held, that these collateral papers, &c., could not be taken notice of, to influence the construction of the will, since that would be to let them in, as part of the will itself.7

5. It seems perfectly agreed, that parol evidence is not admissible, to supply any omission or defect in a will, which may have occurred through mistake or inadvertence. The case last cited, was a bill brought to reform a will, where part of a devise had been omitted by mistake. The court held, that they had no power to make any such decree, as that would be, in effect, to dispense with the provisions of the statute of frauds,

Lawrence v. Lawrence, 2 Vernon, 365. But this decree (which seems to have gone upon the ground, that in order to bar the devisee, at law, by a devise, it must be expressed, in terms, to be in lieu of dower, but that, in equity, such purpose of the testator might be presumed, or inferred) was reversed in the House of Lords, upon appeal. 2 Vernon, 366; 1 Ld. Ray, 438 in n.

Bertie v. Falkland, 1 Salk. 231; s. P. Towers v. Moore, 2 Vernon, 98; opinion of court, in Bennett v. Davis, 2 P. Wms. 316, 318.

Newburgh v. Newburgh, 5 Mad. 364. It is here held, that parol evidence is admissible to show, that the will was not that of the testator, as to a particular estate, which was intended to have been given, by the will, and was omitted through the mistake of the scrivener. In the case of Langston v. Langston, 8 Bligh, N. s. 167, a mistake in the will in question occurred by the omission of a line in copying, and although Lord Brougham called for, and inspected the draught, in opposition to the urgent protest of counsel, he nevertheless declared, that such evidence was altogether inadmissible, at the same time that his lordship was taking the benefit of its aid, in fixing a construction upon the instrument, as actually drawn up and executed. But a mistake in a will, whereby it fails to be what it was intended it should be, does not render the instrument inoperative, in those particulars, where it is intelligibly expressed. Comstock v. Hadlyme, 8 Conn. 254. See, upon the general question, Cæsar v. Chew, 7 Gill & J. 127; Andress v. Weller, 2 Gr. Ch. 604; Hyatt v. Pugsley, 23 Barb. 285; Abercrombie v. Abercrombie, 27 Ala. 489; Harrison v. Morton, 2 Swan, 461; 1 Jarman, Perk. ed. 1860, 353 and notes.

in all cases, where the testator, through inadvertence or mistake, either of himself, or others, to whom he intrusted the drawing up of his will, had failed to express his real intentions, or to do it intelligibly.

6. A distinction has been attempted by some writers, between parol evidence being received to explain, vary, or contradict the will, as expressed, and that which is adduced to show, that the instrument, or a portion of it, is not the will of the testator. The language of Mr. Jarman, a most accurate writer, will best express the point: "The distinction is a very important one. It seems to amount to this; that though you cannot resort to parol evidence, to control the effect of words or expressions, which the testator has used, by showing that he used them under a mistake or misapprehension, nor to supply words that he has not used, yet that you may, upon an issue devisavit vel non, prove that clauses, or expressions, have been inadvertently introduced into the will, contrary to the testator's intentions and instructions, or, in other words, that a part of the executed instrument is not his will."9

7. The question has been made, how far parol evidence may be received, to show that essential portions of a will, duly executed and proved, so far as the formal attestation is concerned, were not according to the intention of the testator, and that he executed the instrument under the apprehension that it was differently expressed from what it was in fact, and that otherwise he would not have executed the same at all; and that those provisions, which the instrument did contain, were

9

Hippesley v. Homer, Turn. & Russ. 48, n. This case, taken in connection with Newburgh v. Newburgh, 5 Mad. 364, seems to establish the proposition, that although a court of equity cannot set up any thing, as the will of a testator, which he did not execute, according to the requirements of the statute, however clear may be the evidence of his intention; it may, nevertheless, declare a paper, which is duly executed, and proved at law, as a will, to be no will, but to have been obtained by fraud or mistake, either in whole or in part. See ante, § 30 c, pl. 23.

made in dependence upon others, and relatively to them, and but for the expectation of the will containing such correlative provisions, those which were inserted would not have been allowed to stand.10 This subject is a good deal discussed in a carefully considered case," by Mr. Justice Cowen, and the following view adopted: "The rule ... that the failure of part is fatal to the entire instrument; that the intent of the testator, the soul of the will, is indivisible; that the whole must be effectual, or its identity is lost, and it can no longer be known or traced by the law; would operate as a sentence of nullity against the more important class of wills." We apprehend, that unless the result was brought about by fraud and deception, it would be difficult to define any clear basis upon which courts of equity could interfere to set aside a will, because some of its provisions could not be carried into effect, according to the intent of the testator, or because others, by accident or mistake, were wholly omitted.11 It would be more reasonable, perhaps, to allow courts of equity to reform wills, and correct mistakes in them, which has not been generally regarded as allowable."1

8. There seems to be no question, as already intimated, that courts of equity hold themselves competent to correct any mistake which is apparent upon the face of a will, or which can be made out, by fair and reasonable construction, from the other parts of the will, in connection with, and as expounded by, other circumstances.12 But the fact of a mistake being made, and its

10 Comstock v. Hadlyme, 8 Conn. 254. This point is considerably discussed, by Chief Justice Williams, in this case, and the conclusion adopted, that a will cannot be avoided upon any such ground. It is admitted the case of Downhall v. Catesby, Moore, 356, which was decided while the statute of Hen. VIII. was in force, adopts this view of the law.

"Salmon v. Stuyvesant, 16 Wend. 321; Chappel v. Avery, 6 Conn. 34; 1 Story, Eq. Jur. § 180 a (1861).

12 Mellish v. Mellish, 4 Vesey, 45; Phillips v. Chamberlaine, 4 Vesey, 51. This rule has been extended to an evident mistake in the computation of a legacy. Milner v. Milner, 1 Vesey, 106. So, also, where the testator devised

precise character and extent, must clearly appear upon the face of the will itself, or from fair and obvious legal construction, aided by such facts and circumstances, as are admissible for that purpose. 18

9. We are not aware that any essential difference exists in regard to the construction of wills, between courts of law and courts of equity. Mistakes, apparent on the face of wills, in all courts, will be corrected, or the instruments treated and enforced precisely as if expressed, as it is obvious they were intended to have been. This is the rule in courts of probate, in the settlement and distribution of estates, and in courts of law, where titles to property, real or personal, are attempted to be derived under a will. This question is very extensively discussed by Chancellor Kent,14 and the earlier cases carefully revised. That experienced and careful judge, thus expresses the rule of law: "It is a well-settled rule, that seems not to stand in need of much proof or illustration, for it runs through all the books, from Cheney's case (5 Co. Rep. 68) down to this day, that parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases; 1, where there is a latent

14

£700 East India stock, having none, but there being £700 of bank-stock, it was held, that passed under the will. Door v. Geary, 1 Vesey, 255. It is obvious, we think, that the late English cases would scarcely warrant such a departure from the words of the will, unless circumstances very clearly show such must have been the intent. The cases where equity assumes to correct an apparent mistake in a will, are, where the specific terms used are overruled and controlled by some general purpose clearly defined, as the residue of "my stock, supposed to be £500," and it turns out to be £800. Courts of equity will allow the legatee to take the whole sum. Danvers v. Manning, 2 Br. C. C. 18. See also, Giles v. Giles, 1 Keen. 692.

131 Story, Eq. Jur. § 181, and cases cited.

“Mann v. Mann, 1 Johns. Ch. 231. The mere fact that legacies, directed to be inserted in a will, are omitted, does not invalidate the will, in the absence of incapacity, undue influence, or fraud, if, at the time of execution, the contents of the will are known to the testator. Mitchell v. Gard, 32 L. J. Prob. 129.

ambiguity, arising dehors the will, as to the person or subjectmatter meant to be described; and 2, to rebut a resulting trust. All the cases profess to go upon one or the other of these grounds."

11. "Perhaps a solitary dictum may occasionally be met with (for there are volumes of cases upon wills, immensus aliarum super alias cumulus), in favor of the admission of parol proof, to explain an ambiguity or uncertainty, appearing on the face of a will, though Lord Thurlow says, there is no such case. If there be, we may venture to say, it is no authority. If a will be uncertain or unintelligible on its face, it is as if no will had been made, quod voluit non dixit."

12. It is well said, there is no end of citing cases upon this general question. The difficulty here is the same as it is upon all legal questions, and, indeed, upon all questions, to define the extent of the rule, by carefully fixing the limits of the exceptions. We must pass to that portion of the subject, referring the student to the notes, for a digest of the leading cases upon the main question.15

15 Sir James Wigram, in his most reliable work upon the rules of law respecting the admission of Extrinsic Evidence in aid of the Interpretation of Wills, has divided the subject into seven Propositions, as follows:

"Proposition I. A testator is always presumed to use the words in which he expresses himself, according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them, will be the sense in which they are to be construed.

66

Proposition II. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.

"Proposition III. Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed him