behalf of the children could not be supported. Vice-Chancellor Stuart was of opinion, that the evidence did not show that the testator was so far personally acquainted with his nephew's mode of life, that he must be considered as having reference to the woman, with whom he lived, and as describing her by the word "wife;" but that he merely indicated, any woman, who survived him, and had been his wife; and that if he had been legally married to any other woman, after the date of the will, who survived him, she would clearly have been entitled, under the will, and rejected the claim.

69. We can give but a brief synopsis of some few of the American cases upon the question discussed in this section, and in doing this we shall only repeat the same propositions already stated, with reference to the English decisions. In New York, it has been often declared, as we have seen, that the intention of the testator is to be gathered from the words of the will.141 But a will may be construed in connection with another written instrument to which it refers. 142

70. Extrinsic evidence, it has often been held, in this state, is not admissible to control, or influence, the construction of a will, when such construction is based upon clear language, and wellsettled rules.143 But the construction of a will may be aided by extrinsic, collateral circumstances, such as might be supposed to influence the testator's mind at the time of making the will.144

141 Mann v. Mann, 1 Johns. Ch. 231; s. c. 14 Johns. 1, affirmed in Court of Errors; Jackson v. Luquere, 5 Cow. 221; Arcularius v. Geisenhainer, 3 Bradf. Sur. Rep. 64; Sweet v. The same, id. 114; ante, § 37, pl. 9, n. 14.

142 Jackson v. Babcock, 12 Johns. 389.

143 Bunner v. Storm, 1 Sandf. Ch. 357; Mann v. Mann, 14 Johns. 1; s. c. 1 Johns. Ch. 231.

144 Wolfe v. Van Nostrand, 2 Comst. 436; Ellis v. Essex Merrimack Bridge Co 2 Pick. 243; Braman v. Stiles, id. 460. Circumstances extrinsic of the will are often received, whereon to found presumption of intention. Williams v. Crary, 4 Wend. 443; 14 Ga. 370. The intention of the testator is to be looked for, with reference to the date of the will. Maupin v. Goodloe, 6 Monr. 399. The

71. The introductory words of a will, it has been said, may have some effect upon the provisions contained in the body of

situation and circumstances of the testator to his property and family, are always to be taken into the account. Morton v. Perry, 1 Met. 446, 449. And the other provisions of the will and the reasonableness of the different constructions claimed; ib.; Jarvis v. Buttrick, 1 Met. 480, 483. And all courts receive evidence of the amount and value of the different portions of the testator's property, and of the circumstances of the testator's family, known to him, with a view to fix the proper construction upon the words of the will. Morton v. Perry, supra; Marshall's Appeal, 2 Barr, 388; Stoner & Barr's Appeal, 2 Barr, 428; Mason v. Mason, 2 Sandf. Ch. 432; and the character of the subject devised may be shown. Nichols v. Lewis, 15 Conn. 137; Morton v. Edwards, 4 Dev. 507. Extrinsic evidence must be received in all cases, to define the extent of the subject-matter intended to be included under general terms, but not to enlarge or vary the extent and meaning of the terms used. Spencer v. Higgins, 22 Conn. 521. It is said, the court will put themselves in place of testator, where the will is doubtful, but not when it is plain. Perry v. Hunter, 2 R. I. 80, the import of which must be, that, in the former case, it will become necessary to do so, in order to determine the true purpose of the will, but not in the latter. The same language is used in other cases. Brearley v. Brearley, 1 Stockt. Ch. 21. But it is always considered that the knowledge of the circumstances surrounding the testator at the time of making his will, afford important aid in determining its true import, and will be looked to in all cases of doubt. Rewalt v. Ulrich, 23 Penn. St. 388; Wotton v. Redd, 12 Gratt. 196. But in this last case the familiar principle, that the declarations of the testator cannot be received, to show his intention, even when made at the time of making his will, was declared. And it has often been decided, that testimony in any form to show an intention of the testator different from that indicated by the words of the will, cannot avail. Brown v. Saltonstall, 3 Met. 423; Long v. Duvall, 6 B. Monr. 219. Extrinsic evidence cannot be received to add to or substract from or modify the fair import of the words of the will; but it must be resorted to for the purpose of identifying things described. Kinsey v. Rhem, 2 Ired. 192. And it is not admissible to show that the testator had contemplated a different disposition of his property, with any view to alter the legal construction of the instrument. Stephen v. Walker, 8 B. Monr. 600. And it is not competent to prove that a child has not received advancements, as stated in the will, with any view to enlarge the provision made for such child by the will. Painter v. Painter, 18 Ohio, 247. Some of these cases have been before referred to, where the same point arose in another form.

the instrument.145 But such words cannot be allowed to operate to enlarge a devise, unless in some way connected with such devise.146

72. But it has been held, that evidence of the testator's intention may be resorted to for the purpose of determining whether an equivocal instrument shall operate as a deed or a will.1⁄447 This will depend upon the peculiar circumstances of the case, undoubtedly, but in general we should not apprehend, that an instrument of this equivocal character is any more liable to be controlled in its legal operation, by extrinsic evidence, than any other.

73. The question of the admissibility of parol evidence to rebut legal presumptions, is extensively, and, to our apprehension, lucidly discussed, in a late case in New Hampshire,148 by Bell, Ch. J., and the rule declared, that no presumption is liable to be so disproved, unless it be of the character of presumptions of fact, which the court make upon grounds of probability, or experience, in the absence of express proof, that the rule does not apply to such legal presumptions, as are denominated in the Civil Law, presumptiones juris et de jure, but to mere prima facie, or disputable presumptions, in which contradictory evidence is admissible, denominated in the Civil Law, from which the ecclesiastical and equity courts derive this rule, presumptio juris.

145 Earl v. Grim, 1 Johns. Ch. 494.

140 Barheydt v. Barheydt, 20 Wend. 576, in Court of Errors; Van Derzee v. Van Derzee, 30 Barb. 331.

147 Robertson v. Dunn, 2 Murphy, 133.

148 Loring v. Woodward, 41 N. H. 391. It was here decided, that as matter of legal construction, the income of specific legacies goes to the legatee, without reference to the time of delivery of the article, and that parol evidence is not admissible to show the intention of the testator, as to the income of such legacies, where the will is silent. It is said, in a still later ease in this state, that where there is no latent ambiguity in a devise, parol evidence of the intention of the testator is inadmissible. Brown v. Brown, 43 N. H. 17.

CHAPTER XI.

UNCERTAINTY IN WILLS.

SECTION I.

BEQUESTS OR TRUSTS VOID FOR UNCERTAINTY.

1. The difficulties of the subject stated with reference to courts, and to cases. 2. The earlier cases upon the subject not reliable, unless reaffirmed by later ones. n. 3. Mr. Jarman's rule upon the subject.

3. Extremes should be avoided, as to certainty, in defeating, or upholding wills. 4. Where a bequest is made to one by name, and there are two of the name. 5. Where the amount is wholly indefinite, the bequest must fail.

6. But this uncertainty is commonly removed by referring to the purpose of the

testator.

7. And some indefiniteness of terms may be disregarded, as an approximation. 8. Bequest not avoided because differently stated in different parts of will.

9. Uncertainty in the subject-matter to avoid a will, must leave it mere conjecture. 10. The case of Henry v. Hancock, in the House of Lords, discussed.

11. Arbitrary rule adopted, to avoid uncertainty.

12. Devise of a portion of estate, by acres, not separated from a large field, not void. 13. Bequest of part of a larger quantity, gives the election to the legatee, or devisee. 14. The gift of such as the legatee may select, implies that the whole is not given. 15. Where an exception is so indefinite as to be unintelligible, it is void, and the whole passes.

16. The bequest of that vested in a mortgage will carry all invested, in several

17. A gift to the legatee not excluding a given sum, includes that sum.

18. A bequest of personal estate must be precise and definite, to create a trust over.

19. Enumeration of indefinite expressions in will, not sufficient to create trusts.

n. 35. Enumeration and analysis of the cases upon this point.

20. Gifts of personal estate for life with remainder over, perfectly valid.

21. Gift of what shall remain, with a power of appropriation, means what is unap

propriated.

22. Bequest of the income of a fund with power to apply the capital, is valid. 23. Questions of repugnancy in wills often more matter of construction than of necessity.

24. Bequests in trust for the life of another, being discharged, the heir entitled to

surplus.

25. Devise of all, with a defined exception depending upon condition not performed, will pass all.

26. But a gift in parcels depending upon each other, will wholly fail, if the parts cannot be ascertained.

27. A bequest of all, after certain illegal expenditures, never ascertained, must fail. 28. But where the prior expenditure is capable of ascertainment, it will be done. 29. Where all of a fund is given in unascertained proportions, these may be determined.

30. And the indefiniteness of other funds to be created will not effect a definite legacy.

31. A bequest rendered uncertain, by double application, explainable by extrinsic

evidence.

32. But a bequest uncertain upon its face cannot be so explained. Illustration. 33. Where the bequest includes all of a class, with an undefined exception, all will take.

34. Instance of uncertainty which will avoid bequest.

35. Bequest to persons, or classes, in the alternative, void, unless uncertainty removed by construction.

36. Reference to extraneous facts may leave the bequest to mere conjecture, and void.

37. Bequest to several in succession, the order of succession will be determined by construction.

38. Charitable bequests will not fail by reason of the uncertainty of the object.

39. How far inaccuracy of one or more particulars of the description will avoid a bequest.

40. Same rule applies to errors in description of the subject as of the object of a devise.

41. The name of a devisee being correct, will, in general, control the matter. 42. But the certainty in the name must be sufficient to remove the uncertainty of description.

43. And where the name is imperfect, or erroneous, description may remove un

certainty.

44. This has been carried so far as to reject one name and substitute another. 45. Some extreme cases occur where description supersedes the name.

46. Where the name and description both fail to identify the devisee, the devise void. 47. But where the description is supported by circumstances, it controls the name. 48. The will must be incapable of any clear meaning, to be held void for uncertainty. 49. Mere error or defect in name, or description, not sufficient.