of dying without issue is given contingently to another, the legacy will be adeemed by a subsequent gift to the donee without any provision for the one entitled in remainder.107 In this last case it was held, it might be shown that the testatrix had placed herself in loco parentis to the legatee, in order to aid the court in giving the proper construction to the will. But in opposition to this there is a considerable array of authority, which seems more in accordance with principle than the cases already adverted to, which are chiefly of an early date. And Mr. Roper, although recognizing the question as not entirely settled, declares himself, very decidedly, in favor of not receiving any direct evidence, extrinsic of the will, to show the testator's intention in giving a legacy, as to whether it shall operate as payment of a preëxisting debt or portion, or the ademption of a former legacy.108 We shall have to consider this question more in detail hereafter. The weight of English authority appears to be in favor of admitting extrinsic evidence to show the intent of the testator in giving a legacy to a creditor, or child, to whom a portion or legacy had been already secured, and in some other similar cases; but the American courts seem disposed to adhere more strictly to the principle of rejecting extrinsic evidence in all such cases, unless in aid of the construction of the words of the will.

51. Where Mr. Jarman, whose book has acquired almost the weight of authority, says,109" No word or phrase in the will can

107 Twining v. Powell, 2 Coll. 262. The Vice-Chancellor declared that he regarded the question one of some embarrassment, in consequence of the contingent remainder over in the bequest, and no such provision being made in the advance, which was evidently intended to adeem the legacy, to all intents, his honor, therefore, felt bound to act upon such clear intention, and declare the legacy adeemed. See also, Powys v. Mansfield, 3 My. & Cr. 359, where this question is still further discussed.

108 1 Roper on Legacy, 393, et seq.; Sir Wm. Grant, in Hartopp v. Hartopp, 17 Vesey, 192.

109 1 Jarman, 386 (ed. 1861).

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be diverted from its appropriate subject or object by extrinsic evidence, showing that the testator commonly,110 much less on that particular occasion,111 used the words or phrase in a sense peculiar to himself, or even in any general or popular sense as distinguished from its strict and primary import," his language must be accepted with some qualification, or it will seriously impinge upon other rules for the admission of extrinsic evidence, clearly established, and universally recognized. And the learned author's note to this portion of his work shows, clearly, that it was intended to be received in a guarded sense. "Observe," adds the note, "that this position supposes the existence of an appropriate subject or object; otherwise it should seem evidence would be admissible, of the testator having commonly described the object (and why not the subject also ?) by the terms used in the will." 112

52. This must bring the matter to the very point of Sir James Wigram's second proposition : 113 "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,114 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. 115

110 See per Parke, B., Shore v. Wilson, 9 Cl. & Fin. 558; Crosley v. Clare, 3 Swanst. 320, n."

"Mounsey v. Blamire, 4 Russ. 384; Green v. Howard, 1 Br. C. C. 31; Strode v. Russell, 2 Vernon, 625; Barron v. Methold, 1 Jur. N. s. 994.”

112 Citing Beaumont v. Fell, 1 Peere Wms. 425; Douglass v. Fellows, Kay, 118. 113 Wigram, 17.

114 See per Coolidge, J., 9 Cl. & Fin. 525.

115 See the judgment of Sir J: L. Knight Bruce, in Bird v. Luckie, 8 Hare,

53. This proposition is discussed, by the learned author, at far greater length than our limits will allow. Many of the cases bearing upon the question have already been referred to by us, and we shall give a brief abstract of others illustrating the point. The case of Doe d. Brown v. Brown 116 is considerably in point. Here the testator devised "all his copyhold estates in North and South Collingwood," and it was held, that as the testator had such estates as were described in his will, it could not be shown by parol that he intended to include, in the devise, a freehold estate, which was intermixed with the copyhold estates in question, and which the testator intended to have pass by the devise, supposing that they were all copyholds, he having before settled the whole upon his wife, specifically enumerating the freehold, but miscalling it copyhold. Nor could it be shown, for the purpose of giving this effect to the devise, that in numerous other documents, affecting the title of these estates, they had all been included under the denomination of "copyholds." Lord Ellenborough, Ch. J., said: "It does not necessarily follow, that he meant to devise to the trustees the same premises which he had settled on his wife; or that when he made his will, in 1800, he was under the same mistake, with respect to the tenure of this part of his estate, as he might have been under in 1792, when he made his settlement, or at the date of his rental in 1794. It would be going further than any case which we are aware of has yet gone, in admitting evidence of intent, from extraneous circumstances, to extend plain and unequivocal words in a will.” The words of the learned judge make the case as satisfactory

301. But, as we have seen, where the words of a will, in their primary sense, are inoperative, in reference to extrinsic circumstances, extrinsic evidence is admissible, to show that the words may have a natural and legitimate operation, in some other sense. Pell v. Ball, Spears, Ch. 48. Parol evidence is admissible, to explain a will only, when it would otherwise become wholly inoperative. Whilden v. Whilden, Riley, Ch. 205.

116 11 East, 441.

to the mind as any exposition which could be given of it. But it cannot be denied that many other cases, under circumstances almost precisely similar, have been ruled to come under the category of admitting extraneous evidence to define the sense in which the testator had been accustomed to use the words in the will. And where he owned estates in a particular locality, intermingled with each other, chiefly in one tenure, and always designated by that tenure, it seems far more satisfactory to the sense of justice, and equally reconcilable with the strictest principle, to give the terms the import which it is shown the testator was accustomed to give them, although not, technically, quite as accurate 117

54. Another leading case 118 upon this subject, seems to involve much the same question as the two last cases referred to. The testator devised his "estate of Ashton." The testator had an estate which he usually called by that name, and the accounts in regard to which were kept in the steward's book, under that name. Part of the estate was situated in Ashton, but it included property in several adjoining parishes. The most unequivocal evidence of intention to pass the entire property under the general name of the "Ashton estate," was tendered. But the court held, as there was an estate at Ashton, answering the words of the will, their primary import could not be extended, so as to include the whole property, generally designated

117 Anstee v. Nelms, 1 Hurl. & Norman, 225, stated ante, n. 58. This case is very similar to the one last quoted, in the principle involved, and quite analogous in many of its facts, and the extrinsic evidence was received, and the devise construed according to the evident intent of the testator, and, as it seems to us, entirely without any infringement of the nicest technical rules.

118 Doe d. Oxenden v. Chichester, 4 Dow, Ho. Lds. Cas. 65; s. c. 3 Taunt. 147. The case of Hodgson v. Merest, 9 Price, 556, is often quoted, as having established the same point. But that case turned mainly upon the fact, that the requisite formalities had not been complied with, in order to pass the copyhold lands to the devisee.

by the testator, as his "Ashton Estate." And the judgment of the Common Pleas was affirmed in the House of Lords. 55. This case seems to be regarded by Mr. Jarman,119 and by Sir James Wigram,120 as having settled the principle of law, applicable to all similar questions. But the Common Pleas 121 had been equally divided upon a question, which Mr. Jarman declares precisely similar. And notwithstanding the cases of Doe d. Browne v. Greening,122 and Doe d. Tyrrell v. Lyford,123 and some others, hereafter more particularly referred to, have followed in the same path, as Doe d. v. Chichester, supra, it is certainly not a point, by any means clear, upon English authority, that it may not be shown, that an estate called by a certain name, having reference to locality, may pass by such name, although, strictly speaking, all the estate is not within the defined locality. The case of Anstee v. Nelms,124 already referred to, is clearly in favor of allowing such an extension of the name of an estate, to be brought about by the introduction of extrinsic evidence. And in the case of Doe d. Gore v. Langton,125 already referred to, the words "thereunto belonging," were allowed to receive a construction, quite as much beyond their primary import, as it is necessary to give the name of an estate, in order to pass lands beyond the locality named, but, in common parlance, included in the name, which fixes the locality of the whole

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124 1 Hurlst. & Nor. 225. Sir James Wigram, p. 28, says, in regard to this case, that "it is extremely difficult to reconcile" it with the other class of cases. In either case, there was a subject to which the words of the devise were correctly applicable; in either case, there was room for conjecture, that the testator intended to pass something, to which the words of the devise were not correctly applicable."

125 2 Barn. & Ad. 680.