son, Edward Fleming, a life-estate in a dwelling-house, then in the occupation of his son John, and after the decease of Edward, the same to "descend to my grandson, Henry Fleming, and his heirs." The testator had two grandsons named Henry Fleming, sons respectively of his sons Edward and John, and it was held, that there was a latent ambiguity in the will, in regard to the two grandsons, and that parol evidence was admissible to explain it.

24. In a late Irish case,28 the testator, by his will, left all his estates to M. F., "now living in France with her uncle M." The fact was, that M. F. had never lived with her uncle M., while C. F. was living with him, at the date of the will, and had been for some time. It was held, that extrinsic evidence was inadmissible to explain the ambiguity in the will; but that the name should control the description, and that M. F. was therefore entitled. And in another case,29 where the name and description of the legatee was given, which could apply to no other person, it was held, that evidence of the state of the family might be received, but an affidavit of the person who drew the will, to show what had been the cause of the mistake, was held inadmissible.

25. And where the testator, having drawn his will to his entire satisfaction, and executed the same in due form, subsequently called upon his solicitor to draw a codicil, for the purpose of altering two bequests contained therein. The attorney, in drawing the codicil, intended to conclude the codicil with a paragraph, "in all other respects, I confirm my said will," but by mistake wrote "revoke" instead of "confirm," and in this state the codicil was executed. It was held, that parol evidence could not be received to correct the mistake.30

28 Plunkett in re, 11 Irish, Ch. 361.

29 Drake v. Drake, 8 Ho. Lds. Cas. 172; s. c. 29 L. J. Ch. 850.

20 Davy in re, 5 Jur. N. s. 252; s. c. 1 Swabey & Tr. 262. But a bequest to the testator's "four remaining children," having before named two of his chil

SECTION V.

PROOF OF THE TESTATOR'S INTENTION.

1. Indirect evidence of intention received by way of aiding the construction.

n. 2. Selwood v. Mildmay considered.

2. and n. 3. Doe d. Le Chevalier v. Huthwaite discussed.

3. Sir James Wigram's criticism of certain cases.

4. The case of Door v. Geary reviewed.

n. 7. Evans v. Tripp explained.

5. The case of Dobson v. Waterman approved.

6. The case of Penticost v. Ley recognizes the same principle.

7. Direct evidence of intention admissible to remove latent ambiguity.

8. Lord Cheney's Case applied in illustration of this point.

9. Counden v. Clerke examined and explained.

10. Jones v. Newman explained.

n. 12. Several cases bearing on the subject, commented upon.

11. Hampshire v. Peirce discussed.

12. Hodgson v. Hodgson explained.

13. Beaumont v. Fell commented upon and questioned.

n. 14. Same case further discussed, and compared with other cases.

14. Doe d. v. Westlake shows that strict equivocation must exist.

15. Cases of misnomer and misdescription.

a. Great inaccuracies of name, or description, often cured by obvious intent.

b. Misdescription of corporations cured by intendment.

c. Entire mistake, both of name and description, fatal to bequest.

d. Same subject further discussed and illustrated.

e. Bequest to the son of A, he having more than one, may be treated as a latent ambiguity.

f. But if the name apply to a person known to the testator, he must take.

16. Bequest to one, his heirs, executors, &c., will lapse, if such person die before the

testator.

n. 33. Same subject discussed and cases examined.

17. Brett v. Rigden, and other cases bearing upon the point, discussed.

18. Express provision that legacy shall be paid to heirs, &c.

19. Must clearly appear the heirs, &c., were intended to take, as purchasers.

20. The rule has prevailed from earliest times. Cases stated.

dren, will embrace all the four, notwithstanding the testator, in naming the four, omit one of the names. Eddels v. Johnson, 1 Gifford, 22; 4 Jur. N. s. 255.

21. Further illustrations of the application of the rule.

n. 43. The same question further discussed.

22. Grounds for admitting parol evidence in this class of cases.

23. The intention of testator cannot be allowed to control the legal import of the words.

24. Parol evidence cannot support the claim of one to whom the words do not apply. 25. All testimony bearing on the construction received.

26. The case of Blundell v. Gladstone discussed.

27. Courts go great lengths in transposing the different portions of a will.

28. Evidence often receivable to correct what was an obvious mistake in the will.

29. The case of Careless v. Careless discussed at length.

30. Still v. Hoste carried this point further than most others.

31. Price v. Page seems to have been decided upon the ground that no other person

could have been intended.

n. 51. The opinion of the Vice-Chancellor at length.

32. M. S. Case reported by Sir James Wigram, and comments upon it.

33. The admissibility of extrinsic evidence to explain nicknames, pet names, &c. 34. The same subject continued.

35. Will in a foreign language may be translated.

36. Legacy expressed in figures explained by parol.

37. Celebrated case of Goblet v. Beechy, as to import of "Mod."

n. 63. The case of Clayton v. Lord Nugent, where testator did not name any of

the devisees.

38. Kell v. Charmer, where sums expressed by cipher, it was held sufficient. 39. Extrinsic documents, as well as facts, may be resorted to for identification. 40. The terms, "appurtenances," "belonging to," and the like, how construed. 41. Sir William Grant's commentary upon the construction of wills.

n. 73. Extract from the opinion of the learned judge.

42. Sir James Wigram's fifth proposition.

43. Parol evidence not admissible to correct mistake in will.

44. Distinction between explaining an act wholly in parol, and where it is partly in writing.

45. Parol evidence received to rebut resulting trust under will.

46. Executors may thus rebut the implications in favor of the next of kin.

47. So also to show whether legacies are double, or single, &c.

48. May be received both to rebut and to confirm the legal presumption.

49. But not to create a presumption not raised by law.

50. To show an intention to adeem a legacy or portion. Also, testator's declarations.

51. Mr. Jarman's definition of the rule excluding extrinsic evidence of intention.

52. Sir James Wigram's proposition upon the same subject.

53. Discussion of some cases under this head. Doe d. Brown v. Brown.

54. Doe d. Oxenden v. Chichester commented upon.

55. Mr. Jarman's and Sir James Wigram's views on this question. The principle

further discussed.

56. Exposition of the question, by the judges, in Anstee v. Nelms.

57. Review of Sir James Wigram's criticism of the opinions of the judges in the cases last named.

58. The two classes of cases seem identical in principle.

59. A bequest to children cannot be shown to have been intended for natural off

spring.

60. This rule often leads to anomalous results.

61. The rule further discussed and illustrated.

62. The rule applies to a general devise of real estate, but not of personalty.

63. Where there are persons answering the words, their primary signification cannot be extended by parol.

64. There must be something in the will to enable the court to give meaning to relative terms.

65, and note. The commentary of Mr. Wigram upon this point.

66. Some American cases referred to upon the question.

67. Case illustrating the subject, decided by Sir John Leach.

68. Recent cases, illustrating the strict adherence of the English courts to established rules of construction.

69. The intent must be gathered from words of will, but may be construed in connection with writing referred to in the will.

70. Construction influenced by extrinsic facts in the mind of the testator.

71. The introductory words of will cannot enlarge devise except they are connected with it.

72. Paper ambiguous must depend upon legal construction.

73. Parol evidence not admissible upon the question of such construction.

§ 41. As the statutes in most of the American states require that wills be in writing, it is obvious, as a general rule, that extrinsic evidence cannot be received, either to explain, or vary, the written instrument. And the rule, to be of any practical use, must be inflexibly adhered to, even where it becomes obvious, that in so doing, the court defeat the purpose of the testator. But, like all rules, this also has its exceptions.

As has been said by one of the most lucid writers in the English common law, upon the subject of admitting extrinsic evidence to aid in the interpretation of writings, "notwithstanding the rule of law which makes a will void for uncer tainty, where the words, aided by the material facts in the case, are insufficient to determine the testator's meaning, courts of

law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose." 1

The conclusion to which this writer comes is much the same which we have already intimated; that the words 'of the will must be "applicable, indifferently, to more than one person or thing," in order to admit direct evidence of the intention of the testator, as to which person or thing he did mean. We shall now proceed to examine and review some of the cases bearing upon this most important practical question, with a view to extract, if possible, the precise rules now prevailing in the courts of England and America in regard to it.

1. There is a class of cases where indirect evidence of intention has been received to aid the construction of the will, when nothing of latent ambiguity, in the strict sense of that term, exists, but where, in fact, the words of the will had but an imperfect application to any person, or subject-matter, as the case might be.2 In this case, the parol evidence of the mode in

Sir James Wigram's Extrinsic Evidence, (101), 109.

* Selwood v. Mildmay, 3 Vesey, 306. The testator here gave a sum, part of his £4 per cent. bank annuities. It appeared that he had no such property, at the date of the will, having previously invested it in long annuities. But all through the will, these £4 per cent. annuities were referred to, as existing funds, belonging to the testator, when, in fact, he had no such at the date of the will, or any time thereafter. The scrivener deposed, that the testator gave him, as part of his instructions in regard to drawing the will, a former will, wherein he had given sundry legacies payable in £4 per cent. stocks, and he, not being informed of their investment in long annuities, thus made the mistake, in the will, above stated. The court was of opinion, that upon this evidence the mistake might be corrected, and decided accordingly. This case is regarded in Miller v. Travers, 8 Bing. 244, as coming within the maxim, falsa demonstratio non nocet. It is obvious that the purpose of the testator in giving his wife, during her life, the income of £1,250, "part of my stock in the £4 per cent. annuities in the Bank of England," was to give her the use of £1,250, in his stocks; and as his personal estate, at the time of his decease, consisted only of some long annuities, household furniture, and leaseholds, specifically bequeathed, it became very