acutest and most accurate of the English equity judges, Sir William Grant, M. R., wherein this subject is so lucidly discussed, that we venture to insert the substance of the opinion in the note, as the most valuable commentary which we could give upon this subject. The testator had contracted for the purchase of a house, and afterwards, by a codicil to his will, gives to his executor "the house which he had given a memorandum of agreement to purchase, and which was to be paid for out of timber which he had ordered to be cut down." This amounts to a direction, that the purchase-money for the house shall be so provided for; and evidence was admitted to show, what was the order given by the testator with reference to the cutting of timber. The propositions declared by the learned judge, in delivering his opinion, were, that the meaning of an ambiguous will is to be collected from the words and the context, and not mainly from the punctuation. Where the testator has the right to do a thing, and states that it is to be done, he must be supposed to speak imperatively, and not by way of recital. Where the subject of a devise is described, by reference to some extrinsic fact, extrinsic evidence must be admitted to ascertain the fact, and so render certain the subject of the devise. This is not like the cases of reference to a paper which is to form part of the will, where the will itself must specify the paper to be incorporated with it.74

should be sufficient to pay for the house. What is there in the fact here referred to, namely, an antecedent order for cutting down 'timber, — that makes it less a subject of extrinsic evidence, than such an one as I have alluded to? The moment it is shown, that it was a given number of trees growing in such a place, or ten thousand pounds' worth in value of the timber on such an estate, that the testator had ordered to be cut down, the subject of the devise is rendered as certain as if the number, value, or situation of the trees had been specified in the will."

"Lord Walpole v. The Earl of Cholmondeley, 7 T. R. 138; s. c. 3 Vesey, 402, by name of Lord Walpole v. Lord Orford. The point discussed in the last report, where the case came before the Court of Chancery, on a bill by

42. The learned author of the treatise on Extrinsic Evidence, in his fifth proposition, thus declares the rule upon this subject: "For the purpose of determining the object of the testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will."

"The same (it is conceived) is true of every other disputed point, respecting which it can be shown, that a knowledge of extrinsic facts can, in any way, be made auxiliary to the right interpretation of the testator's words."

43. The competency of extrinsic evidence to explain the intention of the testator, and the impracticability of its admission upon the mere ground of thereby reaching the intent of the testator, are strikingly illustrated by a leading case, where the question turned upon the admissibility of extrinsic evidence to control the legal effect of the will, as it appeared upon its face. The testator made his will, in 1752, disposing of his real estate, and in 1756 he made another will, altering these dispositions, but in neither of them did he make any disposition of his per

those in whose favor the will of 1856 had been made, upon the ground that this was made in pursuance of an agreement between the testator, and a family relative, to make mutual wills, in favor of each other's families, which by the terms of the compact would be irrevocable. The bill proceeded, therefore, upon the ground that the revocation of this will, not being within the power of the testator, was wholly inoperative. The bill was dismissed, the Lord Chancellor being of opinion, that the relief sought was not consistent with the frame of the bill, and, therefore, not to be given, under the general prayer; and that, upon the evidence, the agreement was uncertain and unfair, and not to be executed.

sonal effects, or appoint an executor, or make any provision for the payment of his debts. In 1776, he sent for his solicitor, to make a codicil for these purposes, and directed him to call upon his steward for the will, meaning that of 1756. But the steward having only that of 1752, gave that to the attorney, who drew the codicil, reciting that by his last will and testament, dated 25th November, 1752, the testator had disposed of his real estate, but had not charged the same with the payment of debts or legacies, or disposed of his personal estate, or appointed executors, and declared that writing to be a codicil to his said last will, and to be accepted and taken as part thereof, and revoked the same, so far only as it was incompatible with the codicil. It appeared the testator told one of the witnesses of the arrangement (stated in note 74,) for making mutual wills. And it appeared also, that in making the codicil of 1776, he expressed no purpose of making any alteration in regard to his real estate, further than subjecting it to the payment of debts and legacies. The question was, whether the parol evidence could be received, to control the effect of republishing the former will, by the codicil, and thus unintentionally revoking the will of 1756. The Court of Common Pleas, and afterwards the Court of King's Bench, on error, held the testimony inadmissible. In this case it had been argued, that there was a latent ambiguity, there being two wills, and the word "last" applied more to that of 1756, while the date was that of 1752. And Lord Kenyon intimated an opinion, that under a state of facts, slightly different, it might have been treated as a case of latent ambiguity. "Supposing," said his lordship, "Lord Orford had said to the attorney, 'I have two wills, in the steward's hands,... desire him to send me the last will,' and the steward had by mistake sent him the first, and that mistake had been shown by parol evidence, there would have been a latent ambiguity; and it seems to me (though the opinion is extra-judicial), that the ambiguity might have been explained by other parol evidence, on the same principle as in the instance of can

celling a will, where parol evidence is admitted to show, quo animo, the act was done; or, as in the case of a child destroying a deed."

44. It is very obvious that the learned judge here confounds an act, resting wholly in parol, with one depending for its effect altogether upon writing, and thus loses sight of the question involved, without being at all conscious of the confusion of ideas, either in his own mind, or in his language. If, by mistake, the steward had brought the wrong will, which the testator had destroyed, under the misapprehension thus induced, the act would not have amounted to a revocation, notwithstanding the destruction of the paper, or its partial destruction or obliteration, as the case might be, the animo revocandi being wanting,. which is as essential to the legal result, as the mechanical act of obliteration. But this all rests in parol, and when the mistake is shown, it goes for nothing. And the same is true of any other unintentional destruction of an instrument. But that argument does not touch the question of explaining, by extrinsic evidence, an act done in writing. This can never be done, except by reforming the writing in a court of equity.75

45. Parol evidence, as has already been intimated, is always admissible, for the purpose of rebutting a resulting trust, as this does not contradict the will, but tends to support the legal title of the devisee, against the effect of a trust resulting from the implication of law.76 And in some cases, such evidence is held admissible for the purpose of attaching a trust."

46. It was upon the former ground that the early English cases allowed the executor to rebut any presumption of trust, in

75

1 Story Eq. Jur. § 180 a. Equity will not interfere to correct mistakes in a will, as where the wrong name is inserted as legatee, by mistake of the scrivener. Yates v. Cole, 1 Jones, Eq. (N. C.), 110. See also, cases cited in 1 Story, Eq. Jur. § 180 a, and notes.

7 Mallabar v. Mallabar, Cas. t. Talbot, 79.

"Collins v Hope, 20 Ohio, 492.

favor of the next of kin, as to the residuum of the estate belonging to him, because of a specific legacy being given him in the will,78 which would seem, prima facie, to create a presumption, that the testator did not intend his executor should have any more out of his estate.

47. Such evidence may also be resorted to, for the purpose of showing, whether portions given in codicils, or in subsequent portions of a will, were intended as mere repetitions of, or in addition to, former legacies, given to the same persons, or in satisfaction of portions due to children by family settlements, marriage-contracts, and similar provisions, the general presumption of law being, that such legacies, if of equal amount, were intended as satisfaction, for portions due the same person,79 or where of less amount, then pro tanto.80 It seems, too, that extrinsic evidence is admissible, for the purpose of rebutting the general presumption, that a legacy of equal or larger amount was intended as a satisfaction of a debt due the lega

78 This is now controlled by statute in England, 1 Wm. 4, ch. 40. And it never had any practical existence in the American states, the executor being here regarded much in the same light as an administrator, and the appointment in the will treated as the nomination of the person whom the testator desires to be intrusted with the execution of the trusts of his will. But it is never supposed here, that the executor has any claim to the residuum of the personal estate, after paying debts, legacies, and charges. If there is a residuum, and no bequest of such residuum, it goes, of course, to the next of kin under the statute of distributions.

"The rule of evidence, under the present English statute, defining the rights of executors, seems not to be the same it was under the old law. Love v. Gaze, 8 Beav. 474.

80 Pym v. Lockyer, 5 My. & Cr. 29. And so is parol evidence admissible, for the purpose of showing that an advance, made by the testator during his lifetime to one of the legatees, was intended as an ademption of a legacy. Rogers v. French, 19 Ga. 316; May v. May, 28 Ala. 141. So also, to show that a legacy, not referring to a deed, was intended as a substitute for it, the testator supposing it void. Webley, Langstaff, 3 Dessaus. 504.