question in such cases is, what the testator intended to have expressed; any evidence, which upon general principles is relevant and material to that inquiry, will be admissible. And it seems, from the cases which have been referred to, that facts affording an inference of intention, and declarations by the testator at the time of making his will, are equally admissible. Declarations of intention, however, made before or after the date of the will, are, it is said inadmissible. This distinction does not appear to have been adverted to in all the cases which have been referred to. It is a distinction depending upon the general rules of evidence, and is unaffected by any principle peculiar to the subject of this work. The cases have also decided, that if the description of the person or thing be wholly inapplicable to the subject intended, or said to be intended by it, evidence is inadmissible to prove who or what the testator really intended to describe. The Chief Justice of the Court of Common Pleas appears, indeed, in one part of the judgment in Miller v. Travers, to lay some stress upon the circumstance that 'the devise in question had a certain operation and effect, namely, the effect of passing the estate in the city of Limerick.' It is impossible, however, to read the whole judgment without seeing that the grounds upon which it proceeded are wholly independent of that circumstance, and that the objections there pointed out, to the admission of extrinsic evidence to prove intention, would have applied with equal force whether the will had contained a devise of land in the city of

(a) Doe d. Gord v. Needs, 2 M. & Wels. 129; Doe d. Smith v. Jersey, 2 B. & B. 553; Fonnereau v. Poyntz, 1 B. C.

C. 472; Colpoys v. Colpoys, Jac. 451,

Limerick or not. The devise of lands in the county of Limerick was independent of that in the city of Limerick, and the will would not have expressed more plainly than it did, an intention to devise other lands than those which the testator had in the city of Limerick, if this latter devise had been wholly omitted. Where the terms of a single devise can be in any way satisfied, the argument against enlarging its effect is irresistible. But, where there are two distinct devises, the fact that one of them is satisfied cannot furnish an argument for refusing to give effect to the other. The decisions have also overruled the distinction taken in Seldwood v. Mildmay (3 Ves., Jr., 306) as to the substance of the thing intended being sufficiently described, and the denomination only mistaken; for clearly the testator in Miller v. Travers, intended to devise some real estate besides that in the city of Limerick. This, indeed, is involved in the last observation. The cases of Day v. Trig and Goodtitle v. Southern cited in the judgment in Miller v. Travers, do not touch the question of admitting extrinsic evidence to prove intention. For in those cases, after rejecting words of mere surplusage, there remained (as the Chief Justice observed) a 'sufficient description in the will to ascertain the thing devised.' The question of admitting extrinsic evidence to prove intention does not therefore, arise in such cases. In cases like the latter, indeed, a question might be made whether the words referring to the occupation of the farm were not restrictive; and if admitted to be so, a court would (so long as it received the

Wigr. on Wills, 65 66, 178, whence the views expressed in the text have been adopted.

instrument as the will of the testator) be bound to give effect to them. But in that particular case, the court was of opinion, upon the construction of the words alone, that they were not restrictive but mere surplusage and that the only operative words in the devise were, 'all that my farm called Trogue's farm.' In Miller v. Travers, the learned judge said, that there were two classes of cases only to which the maxim 'Ambiguitas verborum latens verificatione suppletur,' applied, and these cases he illustrates with great exactness. The learned reader, however, may perhaps still consider that a class of cases, which existed before the decision in Miller v. Travers, has not been satisfactorily adjudicated upon by the decision in that case. The judgment of the Vice Chancellor in that case, and the judgments in previous cases already referred to, had decided that a description wholly inapplicable to the subject intended might be corrected by evidence proving the intention of the testator; from which it would follow, of course, that a description partially correct might be aided by the same means, although such description when taken in connection with the circumstances of the case alone, might not be sufficient to satisfy the mind of a judge. A case, however, might easily be suggested, in which a judge knowing aliunde for whom or for what an imperfect description was intended, would discover a sufficient certainty to act upon, although, if ignorant of the intention, he would be far from finding judicial certainty in the words of the devise. The question then, which Miller v. Travers may be considered as having left undecided, is,-whether extrinsic evidence to prove intention is admissible in the case of such a description as that which has just been suggested? The question arises from the high au

thority of the case of Beaumont v. Fell, which is a case in point. There was no resemblance in that case between the names of Gertrude Yardley and Catharine Earnley, except in the resemblance in sound between Gatty and Katy, which possibly might (as the court ingeniously guessed) have occasioned the mistake in the will. Assuming that the court could not, in such a case, act upon the description in the will without first inquiring who was really intended, could such an inquiry be lawfully gone into? The case of Hiscocks v. Hiscocks has decided this point also. In point of principle, it is submitted, that a description which is so imperfect as to be useless as it stands, i. e. useless unless it be aided by evidence of intention, is not distinguishable from one which is wholly incorrect. The case of Selwood v. Mildmay, as explained in Miller v. Travers, proceeded upon a correct principle: but that principle, it is submitted, was altogether misapplied, and the case is one which ought not to be followed in specie. Upon this point, also, the decision in Hiscocks v. Hiscocks appears to be conclusive. The case of Beaumont v. Fell, just adverted to, is one which is extremely difficult, if not impossible to reconcile with Miller v. Travers, unless it be upon the ground that the description of the legatee was, in the circumstances of that case, sufficient without reference to what the testator had declared. The difficulty in the way of this explanation is, that the case is always referred to as a leading authority for the admissibility of evidence to prove intention in cases in which the description of the person or thing intended is sufficient without the aid of such evidence. The case is pointedly noticed with disapprobation in Hiscocks v. Hiscocks. The MS. case (supra pl. 146) is clearly overruled by Miller v

"Equivocation."

Conn. 274; Cromie v. Louisville Orphan Home, 3 Bush 371; Bodman v. Am. Tract Soc., 9 Allen 447; Graydon v. Graydon, 8 C. E. Gr. (N. J.) 230; St. Luke's Home v. Association for Indigent Females, 52 N. Y. 191; Lefevre v. Lefevre, 59 N. Y. 434, reversing 2 Thomps. & C. 330 on other points; Ward v. Espy, 6 Humph. (Tenn.) 447; Wood v. White, 32 Me. 340. See, too, Smith v. Smith, 1 Edw. 189, where the gift was to Mary, wife of Nathaniel Smith, and there being no such person it was held that Mary, wife of Abraham Smith was intended, and not Sarah, wife of Nathaniel Smith. So where the gift was to James Vernor Henry, describing him as the testator's nephew, and son of his deceased sister E., and there was no such person, evidence of testator's affection was admitted to show that James Vernor Henry, his greatnephew, and the grandson of E., was intended, and not Robert R. Henry, the only son of E. Vernor v. Henry, 3 Watts 393. But in Stokeley v. Gordon, 8 Md. 496, where the devise was to "Anna Maria German wife of Jonathan German," and Anna Maria was his daughter, while the wife's name was Catharine, it was held by Mason, J., that parol testimony was inadmissible to show whether the devise was intended for the wife or the daughter. And in Tucker v. Seamen's Aid Soc., 7 Metc. 188, where there was a society answering exactly to the name in the will, it was not permitted to another society of the same character,

but different name, to show that it was intended. See, too, Jackson v. Hart, 12 Johns. 97, where George Hosmer claimed under a land patent issued to George Houseman, described as in a certain regiment and company, of which Hosmer was a member but not Houseman, and the evidence as to Hosmer was not admitted. And where there are two or more persons or things answering to the description in the will, parol evidence may be received to show which of them testator meant, but not to show that he meant a different person or thing. Per Van Fleet, V. C., Burnet v. Burnet, 2 N. J. Law Jour. 185; S. C., 3 Stew. (N. J.) 595. The rule as to two or more objects, all answering partially, and none perfectly, to the description of the will, applies also to the subject of the gift. Worthington v. Hylyer, 4 Mass. 202; Boggs v. Taylor, 26 Ohio St. 604. In the case of the American Bible Soc. v. Pratt, 9 Allen 109, a bequest of "all moneys due me at the time of my decease from the Dedham Bank, Dedham," was not allowed to pass deposits in the "Dedham Institution for Savings," although testator had never had a deposit in the "Dedham Bank." But in Rom. Cath. Orphan Asy. v. Emmons, 3 Bradf. 144, a bequest of shares in "the Mechanics Bank so usually called in the city of New York," was held to pass testator's shares in the "City Bank," on its being shown that he never had any in the Mechanics' Bank.

[(e) See, as to the meaning of the word