this end, it is obviously essential that the judicial expositor should place himself as fully as possible in the situation of the person whose

language he has to interpret ; (e) and guided by the light thus thrown on the testamentary scheme, he may find himself justified in departing from a strict construction of the testator's language, without allowing "conjectural interpretation *to usurp the place of judicial exposition." (f) Thus, if it appears (and of course it can only appear by extrinsic evidence), that there is no subject or object answering to the description in the will strictly and literally construed, but that there is a subject or object precisely answering to such description interpreted according to the popular and less appropriate sense of the words, the conclusion that the testator employed them in the latter sense is irresistible. Examples of this principle of construction are widely scattered through the present treatise. It may be discerned in the rule (hereafter treated of) which reads a general devise of lands as extending to leaseholds, where the testator had no freeholds on which it could operate and also in the rule (likewise discussed in the sequel) which reads such a devise as an appointment under a power, where it would otherwise be nugatory for want of property of the testator, strictly so called, on which to operate, though neither of these questions can now arise under a will made or republished since 1837. The principle is further exemplified in those cases in which a devise of lands at a given place has been extended to property not strictly answering to the locality, because there is none which does precisely correspond to it, (g)

not forbid a reference to the state of facts under which the will was made." See, too, Hunt v. White, 24 Tex. 642; Wasthoff v. Dracourt, 3 Watts 240; Marshall's Appeal, 2 Penna. St. 388; Glover v. Hayward, 4 Cush. 580; Fogle v. Fogle, 9 Bush 721; Gregory v. Cowgill, 19 Mo. 415; Stephenson v. Denley, 4 Ind. 519. Nor can it be admitted to show what a testator meant by a devise "in fee simple for life," McAllister v. Tate, 11 Rich. 509. (e) Doe d. Templeman v. Martin, 4 B. & Ad. 771, per Parke, J., Smith v. Doe d. Lord Jersey, 2 Br. & B. 553, 5 B. & Ald. 387, per Bayley, J.; Doe d. Freeland v. Burt, 1 T. R. 701; Guy v. Sharp, 1 My. & K. 602, per Lord Brougham; Att.-Gen. v. Drummond, 1 Dr. & War. 367, per Sugden, C.; Shore v. Wilson, 9 Cl. & Fin. 555, per Parke, B.; Doe d. Thomas v. Beynon, 12 Ad. & Ell. 431; Blundell v.

Gladstone, 3 Mac. & G. 692; Phillips v. Barker, 1 Sm. & Gif. 583; Wigr. Wills, Prop. V. But in Pilcher v. Hole, 7 Sim. 210, the V. C. said he could not look at the price of stocks for the purpose of putting a construction on a will. How far it may be assumed that a testator, when he makes his will, has the material circumstances in his mind, see Hopwood v. Hopwood, 22 Beav. 494, 495; In re Herbert's Trusts, 1 J. & H. 121. If he shows by the will that he has taken a mistaken view of the circumstances, that view must govern the construction; see Hannam v. Sims, 2 De G. & J. 151.]

(f) Vide Wigram on Wills, 2d ed., 75; a work which should be perused by every person who wishes to acquire an intimate acquaintance with this intricate subject.

(g) Doe v. Roberts, 5 B. & Ald. 407; [see Baddeley v. Gingell, 1 Exch. 319;]

or in which an [apparently] specific bequest of stock in the public funds has been held to [authorize payment of the legacy out of the general personal estate,] the testator having no such stock when he penned the bequest. (h) Again, we discover traces of the doctrine in the rule (also hereafter discussed) which construes a gift to the children of a deceased person, or the children "now born" of a living person, as comprising illegitimate children, there being no legitimate child to supply the gift with a more appropriate object; [or a gift to the testator's nephews, as a gift to his wife's nephews, he having none, and there being, at *the date of his will, no possibility of his ever having any:](i) and lastly, in the rule which reads a devise or bequest to apply to a person or thing imperfectly answering the name and description in the will, there being no person or thing more precisely answering to them. (k) In these instances, and many more which might be adduced, the application of the rules of construction evidently depends on and is governed by the state of extrinsic facts. (1)

State of facts at when not to instruction.

date of will,

It would be dangerous, however, to place this statement of the doctrine in the hands of the reader, unaccompanied by a caution against the mistaken application of it to gifts comprising a subject or object, or a class of objects, which, by the rules of construction, is to be ascertained at the death of the

but learn the limits of this doctrine from Miller v. Travers, 1 M. & Scott 342, 8 Bing. 244.

[(h) Selwood v. Mildmay, 3 Ves. 306; see, on this much-discussed case, Miller v. Travers, ubi sup. (where Tindal, C. J., refers it to the head "falsa demonstratio non nocet.") In Lingdren v. Lingdren, 9 Beav. 358, Lord Langdale, M. R., followed it, and said of it, "The absence of the fund purported to be given showing that a specific legacy was not intended, other evidence was admitted to show how the mistake arose; and this being clearly shown, it was held that the legatees were entitled to payment out of the general personal estate." See also Wigram on Wills, pp. 102, 103, 164, 167; Auther v. Auther, 13 Sim. 422, where the V. C. took the context for his sole guide. If in another part of the will the testator correctly described the subject, the inference

fluence con

that he meant to include it in the incorrect description would be rebutted, Waters v. Wood, 5 De G. & S. 717.

(i) Sherratt v. Mountford, L. R., 8 Ch.

928.

(k) King's College Hospital v. Wheildon, 18 Beav. 33.]

(1) Observe that, in all the above cases, the parol evidence is not adduced to show that the testator actually intended the devise to have the operation which is given to it, but merely to supply facts from which the court infers such to be the intention; and this inference would not be allowed to be controlled by the production of evidence showing that the construction thus put on the will is at variance with the testator's real intention. [See Stringer v. Gardiner, 27 Beav. 35, 4 Dc G. & J. 468; Sherratt v. Mountford, L. R., 8 Ch. 928.

testator, or at any other period posterior to the date of the will. In such cases, it would be manifestly improper to admit the state of facts existing when the will is made to have any influence upon the construction for instance, since a residuary bequest comprehends all the personal property of which the testator is possessed at the time of his decease, the absence of any given species of property, or of any property whatever, at the date of the will, to satisfy such bequest, ought not, in the slightest degree, to affect its construction, by extending the bequest to property not strictly belonging to the testator, or over which he has not any power of disposition. (m) On the same principle, if a testator bequeaths all the stock of a particular denomination, of which he may be possessed at the time of his decease, no argument is supplied for extending the bequest to stock of any other denomination by the circumstance that the testator had at the making of the will no stock answering to the description. (n) Again, as a devise or bequest to the *children of a living person as a class will comprise all who come in esse before the death of the testator, the fact of there being no child properly so called, i. e., no legitimate child, at the date of the will, raises no necessary inference that the testator had in his contemplation then existing illegitimate children. (o) [And in every case it must be remembered, that, whatever the surrounding circumstances, it is still the will that is to be construed. In the words of an eminent judge, (p)

(m) Stephenson v. Heathcote, 1 Ed. 38; Cave v. Cave, 2 Ed. 144; Sibley v. Perry, 7 Ves. 532; Lord Inchiquin v. French, Amb. 40; Abbott v. Middleton, 4 H. L. Cas. 257, (per Lord St. Leonards); Wigram on Wills, p. 81, 3d ed.; Doe v. Gillard, 5 B. & Ald. 788, is contra: sed qu. But it is otherwise if it appears by the will that the testator is estimating the amount of his property and its sufficiency for the payments he directs; Barksdale v. Gilliatt, 1 Sw. 565; Colpoys v. Colpoys, Jac. 451, 457; and see Singleton v. Tomlinson, 3 App. Cas. 418, 425. And as to real estate see Stanley v. Stanley, 2 J. & H. 503: with which compare Davenport v. Coltman, 12 Sim. 605; Tennent v. Ten nent, 1 J. & Lat. 384.

(n) It is otherwise in the case of a specific bequest of stock belonging to the testator at the date of the will, Att.-Gen.

v. Grote, 3 Mer. 316, 2 R. & My. 699; Sayer v. Sayer, 7 Hare 380, 3 Mac. & G. 607; Boys v. Williams, 3 Sim. 563, 2 R. & My. 689; Horwood v. Griffith, 4 D., M. & G. 708; Fonnereau v. Poyntz, 1 B. C. C. 472, cit. 6 Ves. 401.

(0) Post ch. XXXI.; and see Doe d. Allen v. Allen, 12 Ad. & Ell. 451.

(p) Per Sugden, C., Att.-Gen. v. Drummond, 1 D. & War. 367. And see per Cotton, L. J., Everett v. Everett, 7 Ch. D. 433, 434. The expression "surrounding circumstances" is sometimes strained to include matters wholly outside the scope of the rule, as, instructions given by the testator for preparing his will, Birks v. Birks, 4 Sw. & Tr. 23, 34 L. J., Prob. 90 (referred to another ground, ante *175, n.,) or declarations of intentions by the testator, In re Ruding's Settlement, L. R., 14 Eq. 266.

"when the court has possession of all the facts which it is entitled to know, they will only enable the court to put a construction on the instrument consistent with the words; and the judge is not at liberty, because he has acquired a knowledge of those facts, to put a construction on the words which they do not properly bear."]

And it is material to observe, that the statute 1 Vic., which (we have seen) makes the will speak as to both real and personal Effect of Vict., estate from the death of the testator, will tend greatly to

c. 26.

narrow the practical range of the rule which authorizes the application of words to a less appropriate subject, on account of the non-existence of one strictly and in all particulars answering to those words. If, therefore, a testator, by a will made or republished since 1837, should devise all his lands in the parish of A, the fact of his then not having lands in that parish will supply a much less forcible and conclusive argument than heretofore, for holding the words to apply to lands in a contiguous parish, seeing that a testator not only may extend his devise to after-acquired estates, but that a devise is to be construed as speaking at his death, unless the contrary appears; so that the testator may have contemplated, and is to be presumed to have contemplated, the future acquisition of lands in the parish in question, to satisfy the terms of the devise in their strict and proper acceptation. (q) Of course, parol evidence is admissible (and that, without intrenching on the doctrine of Doe v. Oxenden,) in order to ascer*tain what is comprehended in the terms of a given description, referring to an extrinsic fact.10 Thus, if a

(q) See however Lake v. Currie, 2 D., M. & G. 536; Nelson v. Hopkins, 21 L. J., Ch. 410; ante p. *326, et seq.; post ch. XX., 22 4, 5.]

10. Thus evidence is admissible to locate land "bounding east on the harbor at the foot of bank," Nichols v. Lewis, 15 Conn. 137; or "running to a heap of stones at the shore at Elwell's corner," Storer v. Freeman, 6 Mass. 440; or "beginning at the corner of A between A and B" (there being two such corners), Den v. Cubberly, 7 Halst. 308; or "an east course to a post, the corner of J. B. and my home place," Brownfield v. Brownfield, 20 Penna. St. 55, affirming 12 Penna. St. 136; or to show that by "section 4, township 60," "with access to the 'Big

Parol evidence comprised

admissible to show what is

within a given

Spring," the testator intended section 4, township 59, he owning no land in township 60, but owning land in section 4, township 59, and the "Big Spring" being in the latter section, Riggs v. Myers, 20 Mo. 239; Creasy v. Alverson, 43 Mo. 13. But this is not admissible in Iowa; Fitzpatrick v. Fitzpatrick, 36 Iowa 674; or Illinois, Kurtz v. Hibner, 55 Ill. 514. See, too, Walston v. White, 5 Md. 297. Evidence is also admissible to identify such description as "the house now occupied by me;" Brown v. Saltonstall, 3 Metc. 426. "My plantation whereon I now live," Holton ads. White, 3 Zab. 330. "The old homestead whereon I lived at the time of making my will;" Waugh v. Waugh, 28 N. Y. 94. "The farm which I now oc