edifices and buildings, yards and gardens to the same adjoining, and all the several closes or inclosed grounds, pieces and parcels of ground, called and known by the several names of "Cow-house," &c., with the appurtenances, part of the farm and lands then in his own occupation, &c. And he devised to B all other his hereditaments in Swalcliffe (except what he had before devised to A). The question was, whether *the devise to A comprised two cottages adjoining the messuage in which the testator resided, and which he had separated therefrom by a stone wall, and let off to tenants. It was held, that the cottages in question, though not in the testator's own occupation, passed under the devise to A (it being considered that the devise was not confined to what was in the testator's own occupation,) and that evidence of the testator's intention, orally declared at the time of giving instructions for and executing his will, that the cottages should be included in the devise to B, was inadmissible.

tive pronouns

by parol evi

dence.

And it may not, perhaps, be quite superfluous to observe, that relaPosition of relative pronouns, which have no independent force or signot to be varied nification, but whose effect depends wholly upon the position which they occupy in the instrument, cannot, by means of parol evidence, be shifted, so as to relate to a different antecedent. Thus, in Castledon v. Turner, (p) where a testator had made dispositions in his will to several, and but two women were mentioned throughout the whole will, viz., his wife and his niece, and, in the latter part of the will, a particular estate was devised to "her" for and during her natural life-Lord Hardwicke refused to receive parol evidence for the purpose of showing to which of the two women "her" referred; the offering it was an attempt contrary to the principles of the court, because it would tend to put it in the power of witnesses to make wills for testators. And he held, that, though "her" was a relative term, it related to the wife, upon the ground that, throughout the will, in other places, "her" seemed to relate to the wife. (q)

diverted from

If, however, the context of the will presents an obstacle to the conWords may be struing of the terms of description in their strict and most appropriate sense, a foundation is thereby laid for the admission of evidence showing that they are susceptible of some more popular interpretation, which will reconcile

their primary

acceptation by inconsistency of context.

[(p) 3 Atk. 257.]

tion, Clementson v. Gandy, 1 Kee. 309,

(q) Parol evidence is also inadmissible post ch. XIV. for the purpose of raising a case of elec

them with, and give full scope and effect to, such seemingly repugnant

context.

Briton Ferry

To this principle, it is conceived, may be referred the important case of Doe d. Beach v. Earl of Jersey, (r) where a testatrix, after reciting a power reserved to her by her settlement, on her marriage with G. V. P., devised, subject to the estate for life of her husband Devise of the therein, all that her Briton Ferry estate, with all the estate. manors, advowsons, messuages, buildings, lands, tenements, and *hereditaments thereto belonging, or of which the same consisted. In a subsequent part she added: "Also I give my Penlline Castle estate, which, as well as my Briton Ferry estate, is situate, lying, and being in the county of Glamorgan," &c. [A claim was laid under this devise to certain lands which were neither in the parish of Briton Ferry nor in the county of Glamorgan, but in a parish in the county of Brecon. It appeared by special verdict that the Glamorganshire lands contained 30,000 acres, part whereof consisted of the messuage and lands in the parish of Briton Ferry, comprising the whole of the parish; and that the Brecon lands contained 4000 acres: that there were six advowsons, of which the advowson of the parish of Briton Ferry was one, and one manor, and one undivided sixth of another manor in Glamorgan, and that there was no manor of Briton Ferry. Objections were made to the reception of certain evidence, consisting of old account-books, in which was the following entry: "Briton Ferry estate in the county of Brecon ;" and of proof that the lands in question, together with the other property, had all gone by the name of the Briton Ferry estate. Abbott, C. J., delivered the opinion of the judges, namely, that the words "all that my Briton Ferry estate, with all the manors, &c.," found in the will of this testatrix, in which mention also was made of her "Penlline Castle estate," denoted a property or estate known to the testatrix by the name of her Briton Ferry estate, and not an estate locally situate in a parish or township of Briton Ferry, (s) and consequently that a question arising upon any particular tenement was properly a question of parcel or no parcel,

(r) 1 B. & Ald. 550, and 3 B. & Cr. 870. [(s) The same case had previously been before the Court of K. B. on a somewhat different point; and there Bayley, J., said it was clear that the devise could not be confined to that part of the estate which was within the parish of Briton

Ferry, for the testatrix spoke of manors and advowsons, and in that part of the estate there was no manor and only one advowson: the devise, therefore, must extend to the whole of the Briton Ferry estate; 1 B. & Ald. 558.

and they therefore thought the several matters offered to be proved and given in evidence on the part of the defendant were admissible and ought to have been received. However,] on account of an imperfection in the special verdict, the House of Lords awarded a venire de novo.

unto belong

ing."

So, in Doe d. Gore v. Langton, (t) it was contended that the words Words "there- "thereunto belonging" must be taken in their primary sense, the consequence of which would be to exclude the lands in question by reason of the words being correctly applicable in every particular to other lands. But the Court of K. B. thought that it was to be collected from the face of the will itself, that *the testator had not used the disputed words in their primary sense, (u) and held that extrinsic evidence was therefore admissible to show in what sense he had used them. Lord Tenterden, C. J., in delivering the judgment of the court said, "The extrinsic facts in this case leave no room to doubt that the testator intended his newly-acquired property to pass by his will as part of his Barrow estate; but, nevertheless, it cannot pass unless that meaning can be collected from the will itself; and there are two clauses in the latter part of the will which appear to manifest that intention, and to be sufficient to authorize us to put such a construction on the words thereunto belonging as will accord with and give effect to that intention."]

As to trans

lating or deciphering pecuJiar characters,

And here it may be observed, that if a testator make his will in a foreign language, or introduce therein certain terms or characters which are not understood by the court, recourse may be had to persons conversant with the subject, for the purpose of translating the will, or deciphering the characters. (x) -and explain- [And where the testator makes use of words which in their ordinary sense are intelligible, but which are used by a certain class of persons to whom the testator

ing local or technical terms.

belonged, (y) or in a certain locality where he dwelt, (z) in a peculiar sense, parol evidence may be given to show the fact of such usage, unless it also appears on the face of the will that the testator used the word in its ordinary sense. Generally speaking, for instance, evidence would be admissible to show that the word close meant the same thing as farm in the country where the property was situate; but if the testator has in another part of the will used the word closes (in the plural), it is manifest that he has used the word close in its ordinary sense as denoting an inclosure; and then such evidence is not admissible; for that would be to contradict the words of the will. (a)

Nicknames.

*[Again, the testator may have habitually called certain persons by peculiar or nicknames, by which they were not commonly known. If these names should occur in his will, they could only be explained and construed by the aid of evidence, to show the sense in which he used them, just as if his will were written in cypher or in a foreign language. (b) Thus, in Lee v. Pain, (c) a testatrix, by a codicil dated in 1836, "had bequeathed to Mrs. and Miss Bowden, of H., widow and daughter of the late Rev. Mr. Bowden, £200 each." The legacies were claimed by Mrs. and Miss Washbourne, the widow and daughter of Mr. D. Washbourne, who had been a dissenting minister at H. The evidence proved that Mrs. Washbourne was the daughter of Mr. Bowden, who died leaving a widow, which latter died in 1820; that the testatrix had been intimately acquainted with Mr. Bowden, and with the claimants, whom she had been in the habit of calling by the name of Bowden, and, on the mistake being pointed out, had acknowledged it. Sir J. Wigram, V. C., held, that the evidence was admissible, and, there being no other Mrs. and Miss Bowden, decreed the legacies to the claimants. (d)]

State of facts at

Though it is (as we have seen) the will itself (and not the intention, as elsewhere collected) which constitutes the real and only subject to be expounded, yet, in performing this office, a court of construction is not bound to shut its eyes to the

[(y) Clayton v. Gregson, 5 Ad. & Ell. 302; Shore v. Wilson, 9 Cl. & Fin. 525. (2) Per Parke, B., Richardson v. Watson, as reported 1 Nev. & M. 575; Smith v. Wilson, 3 B. & Ad. 728; Anstee v. Nelms, 1 H. & N. 225. In the last case, the devise was of "lands in the parish of D.," and evidence was admitted to show that a part of the testator's lands which

the date of will proper to be re

garded.

was in another parish was generally reputed to be in the parish of D.

(a) Richardson v. Watson, 4 B. & Ad. 799, 1 Nev. & Man. 575. See Wigr. Wills, pl. 119.

(b) Per Lord Abinger, C. B., Doe v. Hiscocks, 5 M. & Wels. 368. (c) 4 Hare 251.

(d) See also Wigr. Wills, pl. 65, and n.

state of facts under which the will was made; on the contrary, an investigation of such facts often materially aids in elucidating the scheme of disposition which occupied the mind of the testator.9 To

9. Evidence as to the condition of the of the testator's estate or other extrinsic testator's property, family, &c., is admissi- circumstances, in order to ascertain the ble to explain a latent ambiguity. Brain- testator's intention to charge legacies erd v. Cowdrey, 16 Conn. 10; Bond's Ap- upon real estate or to exonerate the perpeal, 31 Conn. 90; Billingslea v. Moore, sonalty, the authorities are by no means 14 Ga. 370; Allen v. Van Meter, 1 Metc. agreed. The decided weight of the Eng(Ky.) 264; Mitchell v. Mitchell, 6 Md. lish authorities would seem to be against 224; Darnall v. Adams, 13 B. Mon. it. Stephenson v. Heathcote, 4 Eden 43, 273; Kincaid v. Lowe, Phill. Eq. 41; and cases cited, note (a); Ancaster v. Lowe v. Carter, 2 Jones Eq. 377; Morton Mayer, 1 Bro. C. C. 466; Brummel v. v. Perry, 1 Metc. 449; Brown v. Salton- Prothero, 3 Vesey 111; Aldridge v. Lord stall, 3 Metc. 426; Tucker v. Seamen's Wallscourt, 1 Ball & B. 315; Booth v. Aid Soc., 7 Metc. 188; McLeod v. Mc- Blundell, 1 Mer. 154; Parker v. FearnDonnel, Ala. 236; Travis v. Morrison, ley, 2 Sim. & Stu. 592; see, also, Tole v. 28 Ala. 494; Lamb v. Lamb, 11 Pick. Hardy, 6 Cowen 341. In Stephenson v. 375; Brown v. Thorndike, 15 Pick. 400; Heathcote, Lord Keeper Henley said: Gilliam v. Chancellor, 43 Miss. 437; 'The intention of the testator must be Wooten v. Redd, 12 Gratt. 196; Waters discovered from the words of the will itv. Howard, 1 Md. Ch. Dec. 112; Rich- self, and not from extrinsic circumstances. ards v. Miller, 62 Ill. 417 (to show whom We are not to inquire into the amount of testatrix considered her heirs-at-law); the personal estate to know whether it be Goodhue v. Clark, 37 N. H. 525; Second or be not sufficient to pay the testator's Cong. Soc. v. First Cong. Soc., 14 N. H. debts; because that would be to establish 327; Trustees v. Peaslee, 15 N. H. 327; a general rule, that in every case where Morgan v. Dodge, 44 N. H. 255; Halsted the personal estate is insufficient, it must v. Meeker, 3 C. E. Gr. (N. J.) 136 be presumed to be the testator's intention ("where there is any doubt on the face to charge his real estate with the payof the will," Zabriskie, C.); Van Winkle ment of all his debts. Besides the perv. Van Houten, 2 Gr. Ch. (N. J.) 172; sonal estate is vague and uncertain, and Paxson v. Potts, 2 Gr. Ch. (N. J.) 313; subject to great fluctuations; few men Dey v. Dey, 4 C. E. Gr. (N. J.) 137; know what their personal estate is.' And Brearley v. Brearley, 1 Stockt. 21; Leigh in the comparatively recent case of Parv. Savidge, 1 McCart. 124; White v. ker v. Fearnley, 2 Sim. & Stuart 592, the Hicks, 33 N. Y. 383 (devise shown to be Vice Chancellor said, 'the court cannot in execution of a power, by the fact that take into consideration the amount of the the amount bequeathed greatly exceeded personal estate.' The authorities are, the testator's private property). So in however, by no means uniform. In Staconstruing a gift to wife of "her lawful pleton v. Colville, Forester 202, which is right of dower out of my estate," to one one of the earliest reported cases on this. share of both real and personal property. subject, the question was, whether the tesAdamson v. Ayres, 1 Halst. Ch. 349. tator, by his will, had charged the debts Chancellor Green uses this language in the upon the real estate in exoneration of the case of Leigh v. Savidge, 1 McCart. 131, personalty. The single question, said above cited: "Whether parol evidence Lord Chancellor Talbot, for the judg is admissible as to the amount and nature ment of the court is, whether the per