are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circumstances, they are capable. IV. Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, or to inform the court of the proper meaning of the words. V. For the purpose of determining the object of a 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 ancillary to the right interpretation of a

testator's words. VI. Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases-see Proposition VII.) will be void for uncertainty. VII. Notwithstanding the rule of law, which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning-courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: where the object of a testator's bounty, or the subject of disposition (i. e. the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator."

2. For confirmation of this rule see Wigram's Propositions II. and VI. above given. In support of these propositions, Sir James Wigram says, Am. ed., 1872, pp. 85, 96, as to Proposition II., and pp. 178-182, as to Proposition VI.: “The rule of construction contained in this proposition is applicable to those cases in which the testator's expressions, though

Letters and oral declara

not precise and technical, are so far accurate as to admit of no doubt as to the sense in which they were used. In other words, when a court is once satisfied that particular words express a particular meaning, although inaccurately, it is just as much bound to adhere to that meaning, as if the most precise and technical expressions had been used. In the Attorney-General v. Grote (3 Mer. 316) in which the language of the will was most inaccurate throughout, Sir William Grant said, 'To authorize a departure from the words of a will, it is not enough to doubt whether they were used in the sense which they properly bear. The court ought to be quite satisfied that they were used in a different sense, and ought to be able distinctly to say what the sense is in which they were meant to be used.' In the same case Lord Eldon said 'Individual belief ought not to govern the case, it must be judicial persuasion.' The only positive exception to the second proposition, of which the writer is aware, exists in those cases in which a testator, having no children, devises property in default or failure of issue of himself; in which case the words, in default of issue, or failure of issue, contrary to their strict legal meaning, have been construed to mean issue living at the death of the testator. These cases are always spoken of as anomalies. The remaining cases applicable to the sixth proposition are numerous and decisive, and appear to conclude the question now under consideration, and to decide in conformity with the

(b) Cheney's Case, 5 Rep. 68; Vernon's Case, 4 Rep. 4; Lawrence v. Dodwell, 1 Ld. Raym. 438; Bertie v. Falkland, 1 Salk. 232; Gowers v. Moor, 2 Vern. 98; Bennett v. Davis, 2 P. W. 316; Parsons

tions of testator rejected.

principle, (supra, pl. 9, 10,) that, if a testator's words, aided by the light derived from the circumstances with reference to which they were used, do not express the intention ascribed to him, evidence to prove the sense in which he intended to use them, is, as a general proposition, (see the exception, infra, pl. 130, et seq.,) inadmissible-in other words, that the judgment of a court in expounding a will must be simply declaratory of what is in the will. Thus it has been laid down (either in dictum or decision), that evidence is inadmissible for the purpose-1, of filling up a total blank in a will; (Baylis v. Attorney-General, 2 Atk. 239; Castledon v. Turner, 3 Atk. 257; Hunt v. Hort, 3 Bro. C. C. 311;) or 2, of inserting a devise omitted by mistake; (Lady Newburgh's case, 5 Mad. 364; Anon., 8 Vin. Abr. 188, G. a, pl. 1;) or 3, of proving what was intended by an unintelligible word; (Goblet v. Beechey, App., infra, No. 1, and 3 Sim. 24;) or 4, of proving that a thing in substance, different from that described in the will was intended; (per M. R. in Selwood v. Mildmay, 3 Ves., Jun., 306;) or 5, of changing the person described; (Delmare v. Robello, 1 Ves., Jun., 412; and see per M. R. in Beaumont v. Fell, 2 P. Wms. 140;) or 6, of reconciling conflicting clauses in a will; (per Lord Hardwicke, C., in Ulrich v. Litchfield, 2 Atk. 372;) or 7, of proving to which of two antecedents a given relative was intended to refer; (Lord Walpole v. Lord Cholmondeley, 7 T. R. 138; Castledon v. Turner, 3 Atk. 256;) or 8, of ex

v. Lanoe, 1 Ves. 189; Ulrich v. Litchfield, 2 Atk. 374; [Parmiter v. Parmiter, 1 J. & H. 135.]

(c) 3 Ch. Rep. 98.

plaining or altering the estate; (Cheyney's Case, 5 Rep. 68;) or 9, of proving which of several testamentary guardians was intended to have the actual care of children; (Storke v. Storke, 3 P. Wms. 51; 2 Eq. Abr. 418, pl. 13; contra, Anon., 2 Ves., Sen., 56. The admissibility of evidence in this case may be satisfactorily explained; for, if guardians disagree, the court has jurisdiction independently of the will, and then the evidence may be resorted to as a guide for the independent judgment of the court;) or 10, of proving what was to be done with the interest of a legacy till the time of payment; (Mansel v. Price, Sugd. Vend. 138, 6th ed.;) or 11, of proving that, by a bequest of residue, a particular sum was intended; (Brown v. Langley, 2 Eq. Abr. 416, pl. 14; and 8 Vin. Abr. 197, pl. 36. See Dyose v. Dyose, 1 P. Wms. 305, disapproved by Lord Thurlow in Fonnereau v. Poyntz, 1 Bro. C. C. 472, and by Sir W. Grant, M. R., in Page v. Leapingwell, 18 Ves. 466; and see 1 P. Wms. 306, n.;) or 12, of construing the will with reference to the instructions given for preparing it; (Goodinge v. Goodinge, 1 Ves., Sen., 230; Murray v. Jones, 2 Ves. & B. 318;) or 13, of proving that an executor was intended to be a trustee of residue for next of kin; (Bishop of Cloyne v. Young, 2 Ves., Sen., 95; White v. Williams, Coop. 58; Langham v. Sandford, 2 Mer. 17;) or 14, of proving that an executor was intended to take beneficially, where, upon the face of the will, it was conclusively apparent that he was intended to be a trustee; (S. C.;) or 15, of controlling a technical rule of verbal construction; (per Lord Kenyon, C. J., and Lawrence, J., 6 T. R. 252, 354;) or 16, of explaining the sense in which the word 'relations' was intended to be used; (Goodinge v. Goodinge, 1 Ves., Sen., 230; Edge v. Salisbury, Amb. 70; Green v. Howard,

1 Bro. C. C. 31;) or 17, what a testator intended to give by the word 'plate;' (Nicholls v. Osborn, 2 P. Wms. 419; Kelly v. Powlet, Amb. 605;) or 18, what a testator intended to devise by the words 'lands out of settlement;' (Strode v. Russell, 2 Vern. 621;) or 19, of proving that a portion was intended to be a satisfaction of a bequest of residue; (Freemantle v. Bankes, 5 Ves. 85 ;) or 20, that a legacy in a codicil was intended to be a substitution for a legacy in the will; (Hurst v. Beach, 5 Mad. 351;) or 21, of proving that a devise to a wife was intended to be in bar of dower; (Leake v. Randall, 1 Vin. Abr. 188, G. a, pl. 3;) or 22, of supplying a use or trust; (Id., pl. 4;) or 23, of ascertaining whether the real estate was charged with the payment of debts in aid only, or in exoneration of the personal estate; (Bootle v. Blundell, 1 Mer. 193;) or 24, of proving that the intention, in appointing a debtor to be executor, was to release the debt; (Brown v. Selvin, Cases temp. Talbot 240; S. C. on appeal, 3 Bro. P. C. 607;) or 25, of rebutting a presumption which arises from the construction of words simply qua words; (per Lord Thurlow, 2 Bro. C. C. 527;) or 26, of raising a presumption; (Rachfield v. Careless, 2 P. Wms. 157;) or 27, of increasing a legacy; (per Lord Hardwicke, in Goodinge v. Goodinge, 1 Ves., Sen., 231;) or 28, of increasing that which is defective; (Anon., 8 Vin. Abr. 188, G. a, pl. 1;) or 29, of adding a legacy to a will; (Whitton v. Russel, 1 Atk. 448;) or 30, of proving what interest a legatee was intended to take in a legacy; (Lowfield v. Stoneham, 2 Strange 1261;) or 31, of ascertaining an intention which upon the face of the will was indeterminate, as in the case of a devise to one of the sons of A, who hath several sons; (2 Vern. 625; and see Altham's Case, 8 Rep. 155;) or 32, of proving that words of limitation

were intended to be construed as words of purchase; (Bret v. Rigden, Plow. 340; and see Doe v. Kett, 4 Term R. 601; Maybank v. Brooks, 1 Bro. C. C. 84 ;) or 33, of proving that executors who had acted in part, and then renounced, were intended by the testator to act only to the extent to which they had acted; (Doyle v. Blake, 2 Sch. & Lefr. 240;) or 34, of proving that the testator meant to use general words in this or that particular sense; (Goodinge v. Goodinge, 1 Ves., Sen., 231;) or 35, of adding to, detracting from, or altering, the will; (Herbert v. Reid, 16 Ves. 481;) or 36, (generally) of proving intention. (Per Buller, J., in Nomse v. Finch, 1 Ves., Jun., 358; per Sir William Grant, M. R., in Cambridge v. Rous, 8 Ves. 22, and in Bengough v. Walker, 15 Ves. 514; per Lord Eldon, in Herbert v. Reid, 16 Ves. 485–6 and 489; Attorney-General v. Grote, 3 Mer. 316; Maybank v. Brooks, 1 Bro. C. C. 84; Doe v. Kett, 4 T. R. 601; Lord Lansdowne's Case, 10 Mod. 98-9; Cole v. Rawlinson, 1 Salk. 234; Bertie v. Lord Falkland, 1 Salk. 231; Lowfield v. Stoneham, 2 Strange 1261; Chamberlayne v. Chamberlayne, 2 Freem. 52; Towers v. Moor, 2 Vern. 98; Vernon's Case, 4 Rep. 4; Cheyney's Case, 5 Rep. 68; Brett v. Rigden, Plow. 340; Bac. Elem. Reg. 23; 2 Bac. Abr. 309; Challoner v. Bowyer, 2 Leon. 70; and the following treatises Sugd. Vend., tit. 'Ambiguity;' Phil. on Ev.; and Roberts on Wills. ContraHarris v. Bishop of Lincoln, 2 P. Wms. 135; Pendleton v. Grant, 2 Vern. 517; S. C., 1 Eq. Abr. 230; Dayrel v. Molesworth, 1 Eq. Abr. 230; Docksey v. Docksey, 2 Eq. Abr. 415; but see S. C., 11 Vin. Abr. 153; Masters v. Masters, 1 P. Wms. 420; and see per Lord Chancellor Brougham, in Guy v. Sharp, 1 Myl. & K. 602, supra,

pl. 96, note.)" See also 1 Greenl. Ev., ¿ 275, et seq.; 1 Redf. on Wills 496; Wms. Ex'rs (6th Am. ed.) 1237, note; see also Am. Bible Society v. Pratt, 9 Allen 109, and the note to this case in Redf. Am. Cas. on Wills 600; Crosby v. Mason, 32 Conn. 482; Spalding v. Huntington, 1 Day 8; Hearn v. Ross, 4 Harring. 46; Wiley v. Smith, 3 Ga. 551; Billingslea v. Moore, 14 Ga. 370; Doyal v. Smith, 28 Ga. 262; S. C., 31 Ga. 198; Thweatt v. Redd, 50 Ga. 181; Walston v. White, 5 Md. 297; Puller v. Puller, 3 Rand. 83; Webley v. Lanstaff, 3 Desaus. 509; Grimes v. Harmon, 35 Ind. 198; Huston v. Huston, 37 Iowa 668; Caldwell v. Caldwell, 7 Bush 516; Timberlake v. Parish, 5 Dana 346; Humble v. Humble, 3 A. K. Marsh 126; Jackson v. Payne, 2 Metc. (Ky.) 570; Tucker v. Seamen's Aid Soc., 7 Metc. 188; Watson v. Boylston, 5 Mass. 417; Gregory v. Cowgill, 19 Mo. 415; Brownfield v. Wilson, 78 Ill. 467; Gilliam v. Brown, 43 Miss. 641; Brown v. Brown, 43 N. H. 17; Nevius v. Martin, 1 Vroom 465; Heater v. Van Auken, 1 McCart. 160; Brokaw v. Peterson, 2 McCart. 194; Cleveland v. Havens, 2 Beas. 101; Brearley v. Brearley, 1 Stockt. 21; Heslop v. Gatton, 71 Ill. 528; Richards v. Miller, 62 Ill. 417; Hyatt v. Pugsley, 23 Barb. 285; Arculavius v. Geissenhainer, 3 Bradf. 64; Mann v. Mann, 1 Johns. Ch. 234; S. C., 14 Johns. 1; Belt v. Belt, 1 Harr. & McH. 409; Taggart v. Boldin, 10 Md. 104; Starling v. Price, 16 Ohio St. 29; Painter v. Painter, 18 Ohio 247; Worman v. Teagarden, 2 Ohio St. 380; Miller v. Springer, 70 Penna. St. 269; Brown v. Brown, 6 Watts 54; Comfirt v. Mather, 2 Watts & S. 450; Weatherhead v. Sewell, 9 Humph. (Tenn.) 272.

3. "Where the inquiry is, what the words of a will express, as distinguished

Evidence of mistake by person who

drew the will rejected.

from what the testator meant by the words, evidence of declarations of intention, of instructions given by the testator for preparing his will, (Bernasconi v. Atkinson, 10 Hare, 345,) or any evidence of a similar nature, is obviously inapplicable to the point of inquiry. Such evidence, therefore, is, for the purpose of such an inquiry, inadmissible. Declarations by the testator, on a point collateral to the question of intention, may, however, be evidence of an independent fact, material to the right interpretation of the testator's words. Such evidence will, then, upon the general principle, be admissible. (Herbert v. Reid, 16 Ves. 484; Goodtitle v. Southern, 1 M. & Selw. 299; Benson v. Wittam, 2 Sim. 493; Powys v. Mansfield, 3 Myl. & Cr. 359; Blundell v. Gladstone, 11 Sim. 467.) No fact, (it may be observed), as a general proposition, can be material, which is not coincident in point of time with the making of the will. (5 B. & C. 69, in Doe d. Winter v. Perratt." Wigram Extr. Ev. 174, 104. And see Wms. Ex'rs (6th Am. ed.) 1237. See also 1 Greenl. Ev., 8% 290, 291; 1 Redf. on Wills, 539, et seq.; Brown v. Saltonstall, 3 Metc. 426; Richards v. Dutch, 8 Mass. 506. So, too, Weatherhead v. Baskerville, 11 How. 329, where declarations of the

(d) Cas. t. Talb. 240, 3 B. P. C. Toml. 607. [It must always be assumed that the language of the will is that of the testator: if proposed by his professional adviser, it is yet adopted by him; per Wood, V. C., 10 Hare 348, 349; and see per Romilly, M. R., 32 Beav. 423. And parol evidence that a will was or was not drawn by a skilled person is not admissible, though any evidence on the point apparent on the face of the will may be consid

ered in construing it, Richards v. Davies,

testator, made at the time of making the will, were offered to prove that in a gift to children he did not intend to include daughters; or that a bequest of $90,000, "to be made up of his (legatee's) notes, &c., which will be found sealed up and among my papers and directed to him to be delivered to him," was intended to embrace other notes over and above those found in the package, Crosby v. Mason, 32 Conn. 482. See, too, Fowler v. Colt, 10 C. E. Gr. (N. J.) 202; Vernon v. Marsh, 2 Green Ch. (N. J.) 502; Massaker v. Massaker, 2 Beas. 264; Leigh . Savidge, 1 McCart. 124; Yard v. Carman, Penn. (N. J.) 936; Farrar v. Ayres, 5 Pick. 407; Barratt v. Wright, 13 Pick. 45; Gilliam v. Brown, 43 Miss. 641; Johnson v. Johnson, 18 N. H. 594; White v. Hicks, 33 N. Y. 383; Arthur v. Arthur, 10 Barb. 9; Lewis v. Lewis, 2 Watts & S. 455; Comfort v. Mather, 2 Watts & S. 450; Woodman v. Good, 6 Watts & S. 169; Ritter v. Foxe, 6 Whart. 99; Harrison v. Morton, 2 Swan (Tenn.) 461; Den v. Van Cleve, 4 Wash. C. C. 262; Weston v. Foster, 7 Metc. 297. Neither are the testator's declarations admissible to show that by a gift of moneys he intended bonds, mortgages, &c., Mann v. Mann, 14 Johns. 9; nor even

13 C. B. (N. S.) 69, 861; and if obviously technically drawn, the technical is the primary meaning, per Byles and Willes, JJ., Thellusson v. Rendlesham, 7 H. L. Cas. 449, 486. But as in the case of a deed (10 East 427, 4 B. & Cr. 272), so in the case of a will, evidence is admissible to show that the instrument was in fact executed on a different day from that stated in it, Reffell v. Reffell, L. R., 1 P. & D. 139.]