the respective legacies should at his death be paid to the legatees or their respective heirs, the inconsistency contended for would have existed: but a payment to the representative at the end of a year after the testator's death, if the legatee be not then living, is not inconsistent with a personal gift to the legatee."

20. But, notwithstanding numerous cases of this character, where the evident intention of the testator has been defeated by holding the words "heirs," "personal representatives," "executors, administrators, and assigns," as words of limitation, intended to define the extent of the interest given, and not words ⚫ of purchase, and indicating those who should take in the event of the decease of the first donee, during the life of the testator, there is no question a will may be so drawn as to prevent the lapse of a legacy or devise. But it is said in many cases, and in the text-books, that to this result it must appear to have been the manifest intention of the testator that the legacy should not lapse. And it would seem that a mere expression of such an intention, without naming any person or class of persons who are to take, in the event of the predecease of the first donee, will not be sufficient to prevent the lapse.

testator, from what would have been conveyed if the word and had been used; that in the former case, it is obvious the testator intended to secure the estate to either, whichever might happen to be in existence at the time of his own decease. And as one can have no heir or legal representativè during his lifetime, he would be the donee during his life, and his heir afterwards. And the learned judge also considered that the language of the will, as to the residuary estate, "and upon their deaths respectively to their heirs," evinced an evident purpose to create a gift over to the heir, as persona designata. The argument is certainly very plausible, and were it not for the cases already referred to, and many others of the same class, no one could object to it.

His lordship, the Chancellor, when the case was opened on the part of the appellant, “considered it unnecessary, for the reasons stated in his judgment, to hear the other side." Lord Brougham's opinion is so valuable and so characteristic, that we should be glad to give it entire, but our space is so much occupied we must refer the reader to the report.

21. From the earliest periods of English law, it seems to have been recognized as the settled rule, in regard to legacies dependent upon any condition, that such condition should not be construed as creating an absolute bar, unless such seemed to be a result consistent with the meaning and intent of the testator.39 The reason why an express declaration, that the testator does not intend the legacy to lapse, will not alone produce that result is, that if there is no person named to whom it shall be transmitted in case of the decease of the legatee, courts cannot hinder its lapse, where the legatee predeceases the testator, since the legatee, not being in esse at the time the will becomes operative, he cannot take, and his heirs or legal representatives can only take from him, or through him, what has already become vested in him during his life. But where the will provides, that in case of the death of the legatee the legacy shall be paid to his heirs, or to his legal personal representatives, there can be no doubt the gift is saved from lapse, unless, as before stated, it fail in consequence of the uncertainty as to the person, or persons, entitled to take. In an early and leading case 40 upon this point, the will, after giving several legacies, declares, if any of the persons should die before the same become due, that they shall not be deemed lapsed legacies, and gives £50 to Ann, wife of R. W., and to her executors or

"Swinburne, 462, pt. vii. § xxiii, (8). The words of this careful writer are, after speaking of the lapse of legacies: "Limitations of this former rule are many. First, when it is the testator's will and meaning, that the conditional legacy be transmitted."

40 Sibley v. Cook, 3 Atk. 572. This case was decided by Lord Hardwicke, upon the authority of Darrell v. Molesworth, 2 Vern. 378, where the will expressly provided, that if any legatee named in the will should "die before the legacy was payable," it should go to his brothers and sisters, in which it had been held that no lapse would occur in consequence of any legatee dying before the testator. The cases do not appear to have much analogy in principle, but are, no doubt, both correctly decided. In Darrell v. Molesworth, the legacy was made payable to the legatee "at twenty-one or marriage.”

administrators. The legatee died before the testator. Lord Hardwicke held this not to be a lapsed legacy, and decreed it to the husband, who was administrator of the wife's estate. Accordingly, where the testatrix gave her residuary estate to certain persons, by name, that, "in case of the death of any of them before her, then the share of him, her, &c., should go, be had and received by, his or her legal representatives," and one of the residuary legatees died, it was held, the next of kin should take his share. The Master of the Rolls said, "There is nothing more clear than that a testator may, if he thinks fit, prevent a legacy from lapsing. It is necessary, according to Sibley v. Cook (3 Atk. 572), not only that he should declare that the legacy should not lapse, but likewise who should take, in the stead of the residuary legatee."

22. The same rule is recognized in numerous, and more recent cases.42 But where any time is given for the payment of the legacy, after the decease of the testator, there a provision in the will that the legacy shall be paid to the children, or heirs, &c., of the legatee, in the event of his death before payment, according to the usual course of decision, as before stated, has been treated as making the legacy liable to lapse, since the provision in the will may reasonably be supposed to have had reference, solely, to the decease of the legatee, during the time given for payment after the decease of the testator.43

" Bridge v. Abbott, 3 Br. C. C. 224.

"Long v. Watkinson, 17 Beav. 471; Hinchliffe v. Westwood, 2 De G. & Sm. 216; Hewitson v. Todhunter, 22 L. J. Ch. 76.

43 Smith v. Oliver, 11 Beav. 494. There are many other cases bearing upon this general question, to which we have not specially referred, our desire being at this time to give the principles, fairly deducible from the careful exposition of the cases, and such as are now universally recognized by the profession, in order to illustrate the application of extrinsic evidence to the subject. The subject will be found further discussed in the following cases, in the English reports. Hutcheson v. Hammond, 3 Br. C. C. 129, 143; Evans v. Charles, 1 Anst. 128; Long v. Blackall, 3 Vesey, 486, 490; Booth v. Vicars, 1 Coll. 6.

23. In all this class of cases it is entirely obvious, upon principle, that neither the expressed intention of the testator, shown by extrinsic evidence, nor the conjectural expectation of the testator, in the event, of the death of the legatee, an event not specifically provided for by him, and not shown, by any thing in the will, to have been in his mind, can be allowed to control the legal and established construction, or the natural import, of the words used in the will. The only advantage which in such cases can be derived from extrinsic evidence, is to enable the court to place themselves in the precise position of the testator, with his knowledge of extraneous facts and circumstances, so as to enable them to give such a construction to the words as the testator himself would have done; i. e. such as will carry out his intention in using them, as far as that can be clearly gathered, from the words of the will. We shall discuss this subject more at length hereafter.

24. It seems to be settled, by all the best considered cases, that extrinsic evidence cannot, as a general thing, be received to support the claim of one to whom no part of the written description applies. And the same rule applies to the description - of the subject-matter.45 There are, no doubt, numerous cases, which seem to be exceptions to this rule, many of which we have already referred to. But they will be found to have been decided upon other grounds, or else to rest upon no satisfactory basis.46

25. The courts do not commonly reject any evidence which in any fair view may be presumed to have a bearing upon the construction of the will. And it is not uncommon for the courts to call for the original draught of a will, or a former will, from which the will in question was made, and inspect them for the

"Lord Abinger in Hiscocks v. Hiscocks, 5 M. & W. 362.

45 Miller v. Travers, 8 Bing. 244.

“Ante, pl. 13.

purpose of seeing precisely how the mistake did occur. This was done by Lord Brougham, Chancellor, in the important case of Langston v. Langston.47 And his lordship, while deciding precisely in accordance with the light thus obtained, disclaimed all aid from this source, and declared the testimony inadmissible. But where evidence is confessedly inadmissible, it would seem more consistent, and more dignified, in the court, as a general rule, certainly, not to examine it.48

26. In Blundell v. Gladstone,48 where the devise was to the second son of Edward Weld of Lulworth, Esq., during his life, and it appeared there was no such person, but Joseph Weld was then the possessor of Lulworth. The will gave remainders

47

* 2 Cl. & Fin. 240. His lordship here said: "I had the curiosity to see the draft from which the engrossment was made, and one party were exceedingly anxious my curiosity should be gratified, but that anxiety was met by just an equal anxiety on the opposite side, that it should remain unsatisfied. I, at once, therefore, proceeded to have a still greater anxiety and curiosity, because I plainly saw it was likely to be a decisive matter. I am aware, as a lawyer, that I had no right to look at it, but humanly speaking, it was impossible not to wish to see whether one's extra-judicial conjecture was well founded, namely, that the whole history of this was an error in copying, and accordingly, when I looked at it, I found that there was a limitation to the first son of a testator's son, J. H. Langston, which the person who made the engrossment had for a very obvious reason passed over, in copying it, having in his haste gone from the same word in one line to the same word in another, in mistake. I here lay that entirely out of view. It has no right to enter into the consideration of the case, and I can positively assure your lordships, that I have formed my opinion upon the instrument as it now stands, without matter dehors, without having recourse to the draft. I have no right to look at the draft, but anybody who reads this will cannot, if he has his senses about him, doubt that some mistake must have happened; and that is a legitimate ground in construing an instrument, because that is a reason derived, not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself."

48 11 Simons, 467, 488. Sir Lancelot Shadwell, V. C. said, in giving judgment, "the case seems to me to be a very simple one, and wholly free from doubt." This case was heard on appeal before the chancellor and two common-law judges, and affirmed. 1 Phill. 279.