95 CHAPTER XIV. DESCRIPTION.-WHAT PASSES UNDER A SPECIFIC DESCRIPTION. dence is WITH regard to the question what evidence is admissible What evifor the purpose of discovering to what the terms of de- admissible. scription employed by the testator refer, evidence of the testator's intention must be distinguished from evidence of circumstances from which the Court may conclude what the testator's intention must have been. The former evidence is admissible only in rare cases. The latter is generally admissible. Thus: 1. "All facts relating to the subject matter of the devise, Surrounding circum such as that it was or was not in the possession of the stances. testator, the mode of acquiring it, the local situation, and the distribution of the property, are admissible to aid in ascertaining what is meant by the words used in the will." Doe d. Templeton v. Martin, 4 B. & Ad. 771, 785, per Parke, J.; Sanford v. Raikes, 1 Mer. 646. art. 2. Words of art, foreign words, nicknames may be ex- Terms of plained by evidence. Kell v. Charmer, 23 B. 195; Goblet v. Beechey, 3 Sim. 24; 2 R. & My. 624; Lee v. Pain, 4 Ha. 251. of custom. 3. Where a word has a meaning in common use, but has Evidence a different meaning by local custom, evidence of the custom is admissible. Shore v. Wilson, 9 Cl. & F. 545, 566; Richardson v. Watson, 1 Nev. & M. 575; Clayton v. Gregson, 5 A. & E. 302; Smith v. Wilson, 3 B. & Ad. 728; Anstee v. Nelms, 1 H. & N. 225. Word with natural but It has been held that, where a measure is defined by statute, evidence is not admissible to show that the word has a different meaning by custom. O'Donnell v. O'Donnel, 1 L. R. Ir. 284. 4. Where a word has a meaning in ordinary language, meaning, but there is nothing to which it can apply, evidence is admissible to show that the testator used the word in a nothing to which it meaning peculiar to himself. This case falls within the second head above mentioned. can apply. Word with natural meaning and some thing to which it applies. Devise of estate by name. Devise of estate of or at A. 5. But if the word has a meaning in ordinary language, and there is something to which it applies, evidence is not admissible to show that the testator used it in a different or wider sense, there being no general custom to that effect. Millard v. Bailey, L. R. 1 Eq. 378. 6. If lands are devised by a particular title, evidence is admissible to show what the testator habitually included under the name. Doe d. Beach v. Lord Jersey, 3 B. & C. 180; 1 B. & Ald, 550; Ricketts v. Turquand, 1 H. L. 472; Webb v. Byng, 1 K. & J. 580; Whitfield v. Langdale, 1 Ch. D. 61 (devise of Claggetts); Jennings v. Jennings, 1 L. R. Ir. 552. 7. Where a testator devises his estate of A., or at A., and there is an estate answering the description, evidence is not admissible to show in what sense the testator used the expression. Doe d. Chichester v. Oxenden, 3 Taunt. 147; 4 Dow. 65; Doe d. Browne v. Greening, 3 M. & S. 171. 8. No evidence is admissible to explain a patent may not be ambiguity; for instance, if the testator uses symbols, explained. which on the face of the will require explanation and Patent ambiguity have no meaning to any one but himself. Clayton v. Lord Nugent, 13 M. & W. 206; see Sullivan v. Sullivan, I. R. 4 Eq. 457. When the admissible evidence has been taken, the following rules apply to determine to what the words of description used by the testator refer: there is 1. Non accipi debent verba in falsam demonstrationem Where qua competunt in limitationem veram. something answering tor's de Therefore, where there is property, which exactly fits all the testathe terms of the description, the whole of it passes and no more. Seal seal & Tayler (1894) 1 Ch. 316 Webber & Stanley 16 C. B. NS 698 i Smith & Ridgway L.R.126.331 sorption Joh It is immaterial whether the larger words precede or follow the restricting words, provided there is something to which the whole description applies. that alone passes. to occu Thus, a devise of lands described as in the parish A., and Reference in the occupation of a particular person, will not pass lands pation. not in the occupation of that person. Doe d. Parkin v. Parkin, 5 Taunt. 321; Morrell v. Fisher, 4 Eq. 591; Homer v. Homer, 8 Ch. D. 758. to title of from whom So the general description may be restricted by a refer- Reference ence to the person from whom the testator purchased or person derived the land. Doe d. Tyrrell v. Lyford, 4 M. & S. lands de550; Doe d. Conolly v. Vernon, 5 East, 51; Doe d. Harris rived. v. Greathed, 8 East, 91; Roe d. Ryall v. Bell, 8 T. R. 579; Doe d. Newton v. Taylor, 7 B. & C. 384; Cooch v. Walden, 46 L. J. Ch. 639. to county. If the lands are described as being at A. in the county Reference of B., lands not in that county will not pass. Webber v. Stanley, 16 C. B. N. S. 698; Pedley v. Dodds, 2 Eq. 819. Description of a farm as freehold excludes a leasehold Freehold portion of the farm. See p. 165; Stone v. Greening, 13 Sim. 390; Hall v. Fisher, 1 Coll. 47. farm. lands at A. It seems that a devise of lands at A. is not to be limited Devise of to lands within the parish of A., but would carry immedi ately adjoining lands in a neighbouring parish. This is clearly the case where the devise is of lands at or At or near near A. Homer v. Homer, 8 Ch. D. 758. But a devise of lands at A. will not include lands some distance from A., where there are lands to which the description applies. Attwater v. Attwater, 18 B. 330; Doe v. Bower, 3 B. & Ad. 453; sec Doe d. Dell v. Pigott, 1 J. B. A. Manufactory in a street. Property held under lease. Everything included under the name at Moo. 274; 7 Taunt. 552; Pogson v. Thomas, 8 Sc. 621; 6 A devise of a manufactory on the west side of a street, with the appurtenances, will not include a manufactory on the east side of the street. Smith v. Ridgway, L. R. 1 Ex. 46, 331. A devise of property in a street may pass the whole of a piece of land which, when purchased by the testator, had a frontage on that street and on another street, though the testator has subsequently divided the land and built two houses upon it, one abutting on one street and one on the other. Harman v. Gurner, 35 B. 478; see, too, Newton v. Lucas, 6 Sim. 54; 1 M. & Cr. 391. A devise of two houses in a street will pass only two houses, though the testator may be possessed of three houses in the street held under the same lease, two of which are comprised in one underlease, and the third in a separate underlease. Tapley v. Eagleton, 12 Ch. D. 683. So a devise of certain lands held under a lease where the testator goes on to describe the lands by name passes only such of the lands held under the lease as are named. West v. Lawday, 11 H. L. 375. In wills, since the Wills Act, everything included under the particular description at the death of the testator, though added to the estate after the date of the will, will the testa- pass. In re Midland Railway Co., 34 B. 525; Castle v. Fox, 11 Eq. 542. Webb v. Byng, 1 K. & J. 580, is contrà, but the point was barely argued. tor's death passes. As to whether the words "now occupied by me" would prevent lands subsequently taken into occupation from passing, see Hutchinson v. Barron, 9 W. R. 538; 6 H. & N. 583; Jepson v. Key, 10 Jur. N. S. 392; 12 W. R. 621; Williams v. Owen, 2 N. R. 585, and see post, pp. 150, 2. Falsa demonstratio non nocet, cum de corpore Inaccurate constat. description accurate; a. Thus, where an object is sufficiently described, addi- part intional words, which have no application to anything, may be rejected. Blague v. Gold, Cro. Car. 447, 473; Doe d. Dunning v. Cranstoun, 7 M. & W. 1. nate de inaccurate b. Where there is a complete description and the subordi testator goes on to add words for the purpose of identifying scription if or elaborating the previous description, these words, if rejected. inconsistent with the previous description, may be rejected. Armstrong v. Buckland, 18 B. 204; see Slingsby v. Grainger, 7 H. L. 273; Travers v. Blundell, 6 Ch. D. 436. c. Where there is one continuous description, and there Inconsis is something answering to part of it, and something scription. answering to other part, but the two together are inconsistent, the question is, which are the leading words of description. In the first class of cases under this head there is no repugnancy between the general terms and the particular superadded description, in the second and third class there is a repugnancy between two parts of a description. tent de tion. Where the estate is devised by a specific name, followed Name followed by by a reference to occupation, the reference to occupation occupamay be rejected if the whole estate known by the name is not in the occupation of the person referred to. Goodtitle d. Radford v. Southern, 1 M. & S. 299; Down v. Down, 7 Taunt. 343; 1 J. B. Moo. 80; see Doe d. Beach v. Earl of Jersey, 1 B. & Ald. 550; 3 B. & Cr. 870; Paul v. Paul, 1 W. Bl. 255; 2 Burr. 1089; see, too, Cunningham v. Butler, 3 Giff, 37; 7 Jur. N. S. 461; In re Boulter, 4 Ch. D. 241. lowed by locality. Upon similar principles a description by a specific name Name folwill prevail over an erroneous reference to a parish or county, or to acreage. Hardwick v. Hardwick, 16 Eq. 168; Whitfield v. Langdale, 1 Ch. D. 64. |