16. It is every days' practice, where the probate of a will is resisted on the ground of it having been obtained by fraud, undue influence, or surprise, and not expressing the free, and unbiased purposes, and intentions of the testator, to admit his declarations, made before the execution of the will, as to his intentions in regard to the disposition of his property. Hence, where the will is made, in conformity with the repeated declarations of the testator, it excites much less apprehension of its having been obtained by undue influence, fraud, or any improper influences, than where it is an essential, or entire departure from all such previously declared purposes.62

17. In a suit to set aside a will on the ground of its having been executed when the testator was incompetent to do the act by reason of drunkenness, his declarations, made subsequent to the time of its execution," that he never made the will, that, if he signed it, they got him drunk, and made him do it, that he had no recollection of it," are not competent evidence. So, also, the testator's declarations, made both before and after the date of the will, that the legatees, named in the will, “should never have any of his property," and declarations after the date of the will that "he had no will," unsupported by other testimony, do not furnish any evidence whatever of the testator's incapacity, or of undue influence, and are not admissible for that purpose. Nor are the declarations of the testator admis

62 Roberts v. Trawick, 17 Alabama, 55.

63 Gibson v. Gibson, 24 Mo. 227. See also, 17 Ala. 55; Patton v. Allison, 7 Humph. 320. The harmony of the will with testator's dispositions and affections is to be considered. Allen v. Public Admin. 1 Bradf. Sur. Rep. 378. The previously declared intentions of testator are admissible, where undue influence is charged. O'Neil v. Murray, 4 Bradf. Sur. Rep. 311.

The apparent injustice of a testator to members of his family, although evidence in regard to the testamentary capacity of the testator, is never regarded as any thing more than a circumstance, and not, in itself, sufficient to invalidate the will. Gamble v. Gamble, 39 Barb. 373.

"Cawthorn v. Haynes, 24 Mo. 236.

sible to show the existence of a will, at the time they were made.65

18. We have extended the discussion of this point so far, and referred to so many American cases, under the different points presented, that we cannot allow much more space for the purpose of discussing particular questions, determined in the different states. The same strict adherence to the words of the will prevails in America, as at common law, and parol evidence is inadmissible, to show the intent of the testator, in a will ambiguously expressed, although the consequence of its rejection will be, to render the instrument wholly inoperative, on the ground of uncertainty.66

Betts v. Jackson, 6 Wend. 187. In Tennessee, where holograph wills, "found among the valuable papers and effects" of the deceased, are recognized as valid, by statute, the declarations of the testator are admissible to show a compliance with the requirements of the statute. Marr v. Marr, 2 Head, 303. It was decided in New York, at an early day, as before stated, Jackson v. Kniffen, 2 Johns. 31, that while it was competent to prove by parol, that the testator executed the will under duress, his own declarations to that effect, made after the execution, were not admissible for that purpose. But in a late case in Michigan it was held, that where, after the death of the testator, a will, twenty-five years old, was discovered in a barrel, among waste papers, and either torn or worn into several pieces, which were scattered, loose, among the papers in the barrel, that the declarations of the testator, made after the date of the will, were admissible, not as separate and independent evidence of revocation, but as tending to explain, whether the instrument was thus torn, accidentally, or with intent to revoke. Lawyer v. Smith, 8 Mich. 411.

"Hand v. Hoffman, 3 Halst. 71; Wootton v. Redd's Ex'r, 12 Gratt. 196; Kelly v. Kelly, 25 Penn. St. 460. Declarations made after the execution of a will, cannot be received to show what the testator intended by the terms "nephews and nieces." Cromer v. Pinckney, 3 Barb. Ch. 466. And the rule would be the same, in regard to declarations made at the time of its execution. These propositions have been repeatedly recognized in most of the American states. Weston v. Foster, 7 Met. 297; Osborne v. Varney, id. 301.

It seems to be a universally received doctrine in the American courts, that extrinsic evidence of the declarations of the testator, whether made at the time, before, or after the execution of the will, cannot be received to show the

19. The courts of equity have, in some of the American states, assumed to correct mistakes in wills, as where the name

intention of the testator, by the use of particular words therein, or by its general scope, as that by the use of the word "children,” he meant to include step-children, Fouke v. Kemp, 5 Har. & J. 135; Asay v. Hoover, 5 Barr, 21; or that a bequest to the parent, was intended for the children of such parent, who was known by the testator to have deceased, Judy v. Williams, 2 Carter, 449; or that the term children was intended to include illegitimate children, 2 Sneed, 618; Shearman v. Angel, Bailey, Ch. 351; or in any sense to vary the express provisions of the will, or to show in what sense he used well-settled terms of law, Aspden's Estate, 2 Wallace, Jr., 368; Gregory v. Cowgill, 19 Mo. 415; Allen v. Allen, 18 How. 385. It is here said, that evidence of extrinsic circumstances, such as the amount and condition of the estate, &c., cannot be received to control the interpretation of the will; but that it is only admissible to explain ambiguity, arising out of extraneous circumstances. But it is evident that the learned judge does not here mean to include the proof of such circumstances as will tend to put the court in the place of the testator, by looking into the state of his property, and the circumstances by which he was surrounded when he made the will, since this is expressly recognized as proper evidence in all cases, and that without such information it must often happen that the will could not be sensibly construed, but it was only intended to exclude all such proof, so far as it tended to "show a different intention in the testator from that which the will discloses. Weatherhead v. Baskerville, 11 How. (U. S.), 357.

The learned surrogate of New York, in Ex parte Hornby, 2 Bradf. Sur. Rep. 420, seems to suppose, that the courts in that state have not gone the length, which he admits to be the fact, in the English courts, of rejecting all proof of the declarations of the testator, with a view to show his intentions, for the purpose of aiding the construction of a will, except in the single case of a latent ambiguity; and declared, that it is competent to give evidence of the testator's declarations at the time of making the will, where, as the will is written, there is no one to answer the precise description in the instrument. This was where the legacy was to "James, son" of testator's "brother Frederic," proof was admitted, by the testimony of the scrivener and others, that the legacy was intended for "Frederic, son of James," whom the testator expressed as “James' son, Frederic," and the scrivener confounded, and thus transposed the names. But, with all due respect for the opinion of so learned and experienced a judge, we cannot but feel, that the direct evidence of intention, as proved by the declaration of the testator, and the testimony of the scrivener, as to the mistake

of one child was inadvertently omitted, or to supply a clause, omitting a devise of residue. But as a general rule, we apprehend no such omission can be supplied by parol.69

20. It seems to be settled, that mere mistakes in the execution of a will, where no fraud is imputable to the parties inter

in writing the will, should not have been received. If the will could have been made to conform to the extraneous facts, by transposition of words, or sentences, it was no doubt allowable to do so, but otherwise the bequest must have failed, since it is not competent to foist any new word into the will, by means of extrinsic evidence. And drawing one word into the place of another, by mere extrinsic evidence, is making a new will. All the legacies might be made dependent upon parol evidence in this same way, and the words of the will become a mere shadow; ante, § 34, n. 7. See, also, Connolly v. Pardon, 1 Paige, 291; Smith v. Smith, 1 Edw. Ch. 189; Root v. Stuyvesant, 18 Wend. 257.

In Ohio, the strict rule prevails, excluding extrinsic evidence, when offered to vary, contradict, or to supply any omission, or apparent ambiguity, in the will. Worman v. Teagarden, 2 Ohio, N. s. 380. And the same rule prevails in Maryland. Walston v. White, 5 Md. 297.

And there are some cases, where it seems the court have pressed the rules of law somewhat beyond their legitimate office, in order to reach the necessities of the case, as where extrinsic evidence was received to show the testator's intent, by a bequest of a slave and her increase. Reno v. Davis, 4 Hen. & Munf. 388. The cases are almost innumerable, where extrinsic evidence was received to identify the subject-matter, even where the description was very imperfect. Maund v. McPhail, 10 Leigh, 199; Pitchard v. Hicks, 1 Paige, 270.

And it has been held, that parol evidence is not admissible to show that the testator did not intend that his will should have its full and legitimate operation, Reeves v. Reeves, 1 Dev. Ch. 386; or that, in a bequest to the executors, they were intended to take in trust for the next of kin, Ralston v. Telfair, 2 Dev. Ch. 255; or that a devise for the support of children, generally, was intended for a particular class, Whilden v. Whilden, Riley, Ch. 205; or to create a trust by an absolute devise, Elliott v. Morris, 1 Harp. Ch. 281; or that a bequest was intended to be in lieu of dower, Timberlake v. Parish, 5 Dana, 345; or to supply a clause, omitted in a devise by mistake, Webb v. Webb, 7 Monr. 626.

Geer v. Winds, 4 Dessaus. 85.

63 Webb v. Webb, 7 Mon. 626.

"Abercrombie v. Abercrombie, 27 Ala. 489.

ested, or their agents, cannot be corrected in a court of equity.70 Thus, where any statutory requirement does not appear on the face of the will, or where the name of a wrong legatee is inserted, by mistake of the scrivener,72 or where the subject-matter of the intended devise is not fully expressed, no relief in equity will be afforded.

21. But we have before shown, that so far as the procurement of a will, or any of the provisions of a will, is based upon the fraudulent suppression of truth, or the suggestion of falsehood, it is void and inoperative, as to all parties, who have, in any manner, either directly or indirectly, participated in the fraud.78 And a will procured by fraud, or undue influence, is void, even where the party benefited is innocent of all participation in such fraudulent practices. And in all similar cases, it is undoubtedly true, that the courts of equity will lend their aid, where the remedy is not fully adequate in the courts of law. But as all questions of this character will arise upon the probate of the will, and become conclusively settled by the decree upon that matter, in most of the American states, both as to real and personal estate, it is not common in practice, that any resort to a court of equity becomes important.

SECTION IV.

LATENT AMBIGUITIES AND THE MODE OF THEIR REMOVAL.

1. This, one of the most extensive grounds for receiving parol evidence.

2. Cannot be received to add to the will itself.

70 Story, Eq. Jur. ed. 1861, § 180 a.

"Nutt v. Nutt, 1 Freem. Ch. Miss. 128.

72 Yates v. Cole, 1 Jones, Eq. 110; Bennett v. Marshall, 2 Kay & J. 740;

Goode v. Goode, 22 Mo. 518.

73 Ante, § 38, pl. 20, n. 24.

" Brown v. Moore, 6 Yerg. 272.