1 Will. IV., c. 40) to the undisposed of residue of a testator's personal estate, against the presumption in favor of the next of kin created by a legacy to the executor. (u) Such evidence may also be adduced to repel the presumption [as distinguished from an express declaration (x)] against double portions; in other words, to show that a legacy by a parent to his child was intended not to be (as the general rule would make it) a satisfaction of a portion previously due to such child by the testator, or that a subsequent advancement to the child was not to be (as it would, according to the general doctrine) a satisfaction [entire or partial, according to its amount, (y)] of a legacy to such child. (z) [In all these cases, where parol evidence is admissible to repel the presumption, counter evidence is also admissible in support of it; the evidence on either side being admissible, not for the purpose of proving, in the first instance, with what intent the writing was made, but simply with the view of ascertaining whether the presumption, which the law has raised, is well or ill-founded. (a) But evidence in support of the presumption is not admissible, unless evidence to rebut it has been first admitted; still less is evidence admissible to create a presumption not raised by the law; in the former case it is unnecessary; (b) and in both cases its effect would be to contradict the apparent meaning of the will. (c)] It is clear, also, that parol evidence is admissible to prove the fact that the testator intended to place himself in loco *parentis towards a legatee, who was not his child; (d) [or to prove that gifts have been made to the legatee by the testator in his lifetime, and that they were of a nature to bring them within the equitable presumption, (e) or within the terms of an express declaration contained in the will, (ƒ) that advancements should be in satisfaction of legacies. And for this purpose contemporaneous declarations of the testator's intentions are admissible; since the rule which would exclude them, if the intention had been committed to writing, does not apply.] (u) See 1 Rop. Leg. by White 337. [Secus since the act, Love v. Gaze, 8 Beav. 474. (x) Smith v. Conder, 9 Ch. D. 170. White v. Williams, 3 Ves. & B. 72. (c) Hall v. Hill, 1 D. & War. 94; Lee v. Pain, 4 Hare 216; Palmer v. Newell, 20 Beav. 39.] (d) Powys v. Manfield, 3 My. & C. 359. [(e) Rosewell v. Bennett, 3 Atk. 77; Kirk v. Eddowes, 3 Hare 509; Twining v. Powell, 2 Coll. 262. (f) Whateley v. Spooner, 3 K. & J. 542; M'Clure v. Evans, 29 Beav. 422. f Construction not to be influ Returning, however, to the general rule, it is clear that parol evidence of the actual intention of a testator 8 is inadmissible enced by parol for the purpose of controlling or influencing the constructual intention. tion of the written will, the language of which must be evidence of ac 8. As to the inadmissibility of parol proof of the testator's intentions, see Robinson v. Bishop, 23 Ark. 378; Avery v. Chappel, 6 Conn. 270; Canfield v. Bostwick, 21 Conn. 550; Wiley v. Smith, 3 Ga. 551; Williams v. McIntyre, 8 Ga. 34; Allen v. Van Mater, 1 Metc. (Ky.) 264; Long v. Duvall, 6 B. Mon. 219; Stephen v. Walker, 8 B. Mon. 600; Mitchell v. Walker, 17 B. Mon. 61; Weston v. Foster, 7 Metc. 297; Armistead v. Armistead, 32 Ga. 597; Crocker v. Crocker, 11 Pick. 252; Johnson v. Johnson, 18 N. H. 594; Yard v. Carman, Penn. (N. J.) 936; Jackson v. Sill, 11 Johns. 201; Kelly v. Kelly, 25 Penna. St. 460; McKay v. Hugus, 6 Watts 345; Comfort v. Mather, 2 Watts & S. 450; Gannaway v. Tarpley, 1 Coldw. (Tenn.) 572; Den v. Van Cleve, 4 Wash. C. C. 262; Bradley v. Bradley, 24 Mo. 311; Coffin v. Elliott, 9 Rich. Eq. 244; Durant v. Ashmore, 2 Rich. 184; Ralston v. Telfair, 2 Dev. Eq. 255; Judy v. Williams, 2 Ind. 449; Field v. Eaton, 1 Dev. Eq. 283; Doe v. Kinney, 3 Ind. 50; Bradley v. Bradley, 24 Mo. 311; Fitzpatrick v. Fitzpatrick, 36 Iowa 674. See also 1 Redf. on Wills 594, et seq. It is not admissible to prove by parol that the testator, by a provision that a bequest should vest absolutely in his daughters and their heirs, intended to create a separate estate in them, Johnson v. Johnson, 32 Ala. 637; nor that he intended to include grandchildren in a gift to children, Willis v. Jenkins, 30 Ga. 169; Mordecai v. Boylan, 6 Jones Eq. 365; nor that slaves were not intended to be included in a general bequest of testator's movable effects, Humble v. Humble, 3 A. K. Marsh. 126; nor to prove that testator intended a bequest to a debtor to be a satisfaction of the debt, Cloud v. Clinkinbeard, 8 B. Mon. 397 (but this case must be considered to be overruled; see infra); or that “property” was intended to include only personal and not real property, Wheeler v. Dunlap, 13. B. Mon. 292; or that a remainder to A's children, B and C, was intended for all his children, including others, Osborne v. Varney, 7 Metc. 301; or by testator's declarations that a gift to A and his wife, and the survivor of them, was intended to give A a fee simple, Farrar v. Ayres, 5 Pick. 407; or that a direction to executors to provide a "handsome support" for A and B, was intended only for the case of their other means failing, Crocker v. Crocker, 11 Pick. 252; or thát by a trust until the charter of a certain bank expire, was meant until the original charter expire, Barrett v. Wright, 13 Pick. 45; or what testator intended by the word "heirs," Love v. Buchanan, 40 Miss. 758; or by the word "expenses," as, for instance, that he caused the word “funeral,” before “expenses," to be omitted, in order that the word might cover also expenses of settlement of the estate, Matter of Haines, 4 Halst. Ch. 506; or that the intention was to give two-thirds where the will gave one, Jones v. Jones, 2 Beas. 236; or that it was intended to include illegitimate children in the word children, Heater v. Van Auken, 1 McCart. 160; Gardner v. Heyer, 2 Paige 11; or stepchildren, Fowke v. Kemp, 5 Harr. & J. 135; or to include in a gift to three daughters the son of a deceased (fourth) daughter, Brokaw v. Peterson, 2 McCart. 194; Reitter v. Fox, 6 Whart. 99; or to charge legacies on the land devised, Massaker v. Massaker, 2 Beas. 264; Leigh v. Savidge, 1 McCart. 124 (in this case a distinction was made between testator's declarations and the circumstances of his property, the latter being held admissible and the former not); Andress v. Weller, interpreted according to its proper acceptation, or with as near an approach to that acceptation as the context of the instrument and the state of the circumstances existing at the time of its execution (which, 2 Gr. Ch. (N. J.) 604. The distinction above noted in Leigh v. Savidge is made also in Van Winkle v. Van Houten, 2 Gr. Ch. (N. J.) 172; Paxson v. Potts, 2 Gr. Ch. (N. J.) 313; Dey v. Dey, 4 C. E. Gr. (N. J.) 137; Puller v. Puller, 3 Rand. 83. To the same effect, as to charging legacies on land, see Tole v. Hardy, 6 Cow. 333. But it is held, in Myers v. Eddy, 47 Barb. 263, that extraneous circumstances are only admissible to prove such intention in case of latent ambiguity. So parol evidence to show an intention on the part of the testator to execute a power by his will was held admissible in the way of circumstances of property, &c., but not of declarations of the testator, White v. Hicks, 33 N. Y. 383. And parol evidence (as to character of the land devised) is inadmissible to show that it was testator's intention to give a fee simple, Charten v. Otis, 41 Barb. 525; or to contradict the legal presumption of revocation in certain cases, Adams Winne, 7 Paige 97; or that it was the testator's intention that the heirs of D should together take one-fourth (instead of each one-fifth) in a gift to A, B, C and the heirs of D, i. e., E and F, Bunner v. Storm, 1 Sandf. Ch. 357; or to show that the testator considered certain land to belong to him, and intended it to pass by a general devise, Miller v. Springer, 70 Penna. St. 269; or that the testator had declared his intention to die intestate, as evidence of a revocation, Lewis v. Lewis, 2 Watts & S. 455; or what the testator intended as to the powers under a trust erected by his will, Woodman v. Good, 6 Watts & S. 169; or that testator intended A's son to take a gift "to A, her heirs and assigns," in case of A's death before the testator, Sword v. Adams, 3 Yea. 34; or that only sons were intended by "children," Weatherhead v. Sewell, 9 V. Humph. (Tenn.) 272; Weatherhead v. Baskerville, 11 How. 329; or children and grandchildren, Harrison v. Morton, 2 Swan (Tenn.) 461; or that, by a gift expressly in lieu of dower, testator did not intend to bar dower in after-acquired property, although a letter of testator's to that effect was found with the will, Chapin 'v. Hill, 1 R. I. 446; or that testator intended to give only a life estate, McCray v. Lipp, 35 Ind. 116; or that by a bequest of a slave named "Aaron," testator meant a slave named Lamon," Barnes v. Snivens, 5 Ired. Eq. 392. In this case it was said by Ruffin, C. J.: "There is no ambiguity as there would be if there were two Aarons, when it would be admissible to show which of the two was meant. But here the attempt is to show that testator did not mean any Aaron at all, but meant Lamon, a different person altogether." But parol evidence has been held admissible to show that advancements made by a testator subsequent to his will were not intended by him to satisfy the provision in the will, May v. May, 28 Ala. 141; Rogers v. French, 19 Ga. 316; Clendening v. Clymer, 17 Ind. 155; Hine v. Hine, 39 Barb. 507; or to show that certain notes taken by the testator were given for advancements made by him, Nolan v. Bolton, 25 Ga. 352; Tillotson v. Race, 22 N. Y. 122; or where a bequest of money was made to executors, to be used and disposed of. by them according to verbal instructions given them, to show what those instructions were, Cagney v. O'Brien, 83 Ill. 72 ; or to show that certain of his children were intentionally omitted in his will, Ramsdill v. Wentworth, 101 Mass. 125; Buckley v. Gerard, 123 Mass. 8; Wilson v. Foster, 6 Metc. 400; Lorieux v. Kellar, 5 Iowa 196. (But this rule is different in Rhode Island-Chace v. Chace, 6 R. I. as we shall presently see, forms a proper subject of inquiry,) will admit of. No word or phrase in the will can be diverted from its appropriate subject or object by extrinsic evidence, showing that the testator commonly, (g) much less on that particular occasion, (h) 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. Copyhold" Thus, in Doe d. Brown v. Brown, (i) it was held that a devise *of copyhold lands could not be extended to freeholds, by the not extended to production of evidence showing that the testator had so parol evidence. described them in a deed executed by him, the will itself freeholds by 407; Missouri-Bradley v. Bradley, 24 Mo. 311; California-Estate of Garraud, 35 Cal. 336;) or that one child's name was omitted by mistake, Geer v. Winds, 4 Desaus. 85. So an intention on the part of the testator to evade a statute against manumission may be proved by parol, Smithwick v. Evans, 24 Ga. 461; Cobb v. Battle, 34 Ga. 458. So, too, an intention that a legacy to a debtor should be a discharge of the debt or otherwise, Gilliam v. Chancellor, 43 Miss. 437; Gilliam v. Brown, 43 Miss. 641; Williams v. Crary, 8 Cow. 246; 4 Wend. 443; Stagg v. Beekman, 2 Edw. 89; (whether testator's declarations are admissible for that purpose, quære, Eaton v. Benton, 2 Hill (N. Y.) 576;) Zeigler v. Eckert, 6 Penna. St. 13; Holmes v. Holmes, 36 Vt. 525; Hopkins v. Holt, 9 Wis. 206. And in Brown v. Dysinger, 1 Rawle 408, parol evidence was admitted to show that only personal property was intended by a gift of "any earthly property which God hath been pleased to give me;" or to show whether gold or Confederate States paper was intended by a legacy in "dollars," Elder v. Ogletree, 36 Ga. 64. In the foregoing enumeration of cases relating to parol evidence of intention of testator, no notice is taken of the large class of cases where there is a latent ambiguity, and such evidence is admitted to identify the person or thing designated. As to these cases, see infra. [(g) See per Parke, B., Shore v. Wilson, 9 Cl. & Fin. 558; Crosley v. Clare, 3 Sw. 320, n.; Millard v. Bailey, L. R., 1 Eq. 378. (h) Mounsey v. Blamire, 4 Russ. 384; Green v. Howard, 1 B. C. C. 31; Strode v. Russell, 2 Vern. 625; Barrow v. Methold, 1 Jur. (N. S.) 994; Knight v. Knight, 2 Gif. 616, is contra; but the rule as stated in the text is firmly settled.] Observe that the rule 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. [Lee v. Pain, 4 Hare 251, post; Douglas v. Fellows, Kay 118.] (i) 11 East 441. See Hughes v. Turner, 3 My. & K. 666, where Sir C. Pepys, M. R., held that a revoked will could not be looked at for the purpose of influencing the construction of the subsequent unrevoked instrument. [See also M'Leroth v. Bacon, 5 Ves. 165; Randall v. Daniel, 24 Beav. 193. But in In re Feltham's Trusts, 1 K. & J. 532, on a bequest to "Thomas Turner, of Regency Square, Brighton," the facts being that there was a James Turner of Regency Square, surgeon, and a Rev. Thomas Turner, of Daventry, both nephews of testatrix's husband; an old will containing a bequest to "Thomas Turner, of Regency Square, Brighton, Surgeon," was admitted to furnishing no distinct indication that the testator meant to give what was conveyed by the deed, and there being copyhold lands to satisfy the devise. tate of Ashton" by extrinsic So, in Doe d. Chichester v. Oxenden, (k) (which is a leading authority,) where a testator devised his "estate of Ashton, in the Extent of "escounty of Devon;" and evidence was adduced to show not enlarged that the testator was accustomed to distinguish by the evidence. appellation of his "Ashton estate" the whole of his maternal estate, including property in several contiguous parishes; the Court of C. P. notwithstanding this evidence, held that only the premises in the manor of Ashton passed; Sir James Mansfield observing, that this would give the will an effectual operation, and herein the case differed from all others in which such evidence had been received: for in them, without it, the devise would have had no operation; and it was, he said, safer not to go beyond the line. This decision was affirmed in D. P. on the unanimous opinion of the judges; (7) and the principle of it has been since repeatedly recognized. Thus, in Doe d. Browne v. Greening, (m) the Court of K. B., on its authority, rejected evidence offered to show that, under a devise of lands "at Coscomb," it was intended to include lands near Coscomb. of words not dence of actual So, in Doe d. Tyrrel v. Lyford, (n) where the testator devised lands at Sutton Wick, in the parish of Sutton Courtney, which Construction he purchased of S., the same court would not allow it to be varied by eviproved by extrinsic evidence that he intended to include intention. certain pieces of ground not in the hamlet of Sutton Wick, but parcel of the estate purchased of S., and in the parish of Sutton Courtney. Again, in Doe d. Preedy v. Holton, (o) where a testator devised to A his messuage or tenement in Swalcliffe, wherein he (the testator) then resided, with the offices, outhouses, barns, stables, and other prove the fact that the testatrix always called the surgeon Thomas. From that fact the court inferred that the actual will (which was not strictly applicable to either claimant,) erred in the name and not in the description. "But," said the V. C., "I cannot rely on the circumstance that she therein (i. e. in the old will) gave him a legacy." The distinction appears to have been overlooked in In re Gregory's Settlement, 6 N. R. 282.] (k) 3 Taunt. 147. This case seems to have settled a point left in doubt by (m) 3 M. & Sel. 171. [See also Evans v. Angell, 26 Beav. 202. But as to the meaning of "at," see Homer v. Homer, 8 Ch. D. 758.] (n) 4 M. & Sel. 550. [As to Collison v. Girling, 4 My. & C. 63, 9 Cl. & Fin. 88, see Wigr. Wills, 43 and 48, n., 4th ed.] (0) 5 Nev. & M. 391, 4 Ad. & Ell. 76. |