or subject of the gift. (c) But in] Doe d. Hiscocks z. Hiscocks, (d) where part of the description in the will applied to one person and part to another, the Court of Exchequer rejected evidence of the testator's declarations, at the time of giving instructions for his will, respecting his actual intention. The devise was to the testator's son John H. for life, and on his decease to his (testator's) grandson John H., eldest son of the said John H., for life, and on his decease to the first son of the body of his said grandson John H., in tail male, with other remainders over. At the time of making the will, the testator's son John H. had been twice married; he had by his first wife one son, Simon; by his second wife an eldest son John, and other younger children, sons and daughters. It was held, that evidence of the instructions given by the testator for his will and of his declarations after its execution was not admissible to show which of these two grandsons was intended by the description in the will. Lord Abinger, in [delivering the judgment of the court, reviewed most of the principal cases on this subject. In the opinion of the court there was but one case, in which evidence was admissible of the testator's declarations, of the instructions given for his will, and other circumstances of the like nature, which were not adduced for explaining the words or meaning of the will, but either to supply some deficiency or remove some obscurity or ambiguity. That case was where the meaning of the testator's words was neither ambiguous nor obscure, and where the devise was, on the face of it, perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arose as to which of the two or more persons or things, each answering the words in the will, the testator intended to express. Though it was clear he meant one only, both were equally denoted by the words, whence there arose an "equivocation," and evidence of previous intention might be received to solve this latent ambiguity; for the intention showed what he meant to do; and when you knew that, you immediately perceived that he had done it by the words he had used, and which in their ordinary sense might properly bear that construction. It appeared to [(c) Thomas d. Evans v. Thomas, 6 T. R. 678; Bradshaw v. Bradshaw, 2 Y. & C. 72; in Doe d. Chevalier v. Uthwaite, 8 Taunt. 306, 3 Moo. 304, 3 B. & Ald. 632, sometimes cited in support of the same doctrine, it does not appear that any de clarations by the testator were offered in evidence. The case is said to have been ultimately compromised, per Lord Brougham, 1 H. L. Cas. 797. (d) 5 M. & Wels. 363. The rule stated. them that in all other cases parol evidence of what was the testator's intention ought to be excluded. This case is generally considered to have settled the law upon this subject, (e) and to decide that "the only cases in which evidence to prove intention is admissible, are those in which the description in the will is unambiguous in its application (i. e. equally applicable in all its parts) to each of several subjects." Declarations need not be contemporaneous with will. In the case of Doe v. Allen, (ƒ) the declarations admitted as evidence had been made by the testatrix ten months after the date of her will, and were objected to on that account. Lord Denman, C. J., concluded the judgment of the court by saying, that "none of the cases which were referred to in the books to show that declarations contemporaneous with the will were alone to be received, established such a distinction. Neither had any *argument been adduced which convinced the court that those subsequent to the will ought to be excluded wherever any evidence of declarations could be received. They might have more or less weight according to the time and circumstances under which they were made, but their admissibility depended entirely on other considerations." The same remarks would apply to declarations made before the will. (g) Evidence of immaterial circumstances rejected; It was stated in a former page that evidence of all the material facts of the case was admissible to assist in the exposition of the will. And this statement was necessarily qualified by the insertion of the word material, because though the rulės specially applicable to the subject now under consideration, may not raise any peculiar obstacle to the admission of evidence tendered in support of a given fact; yet if that fact, supposing it to be proved, ought not to influence the construction of the will, the evidence in support of it is immaterial, and therefore inadmissible. Some examples illustrating this principle have already been given. (h) It is further exemplified by the well-known rule, that words shall be interpreted in their primary sense, if the context and surrounding circumstances do not exclude such an interpretation, even though the (e) Wigr. on Wills, pl. 215; Blundell v. Gladstone, 11 Sim. 467, 470, 1 Phil. 282; Thomson v. Hempenstall, 1 Rob. 783, 13 Jur. 814; Bernasconi v. Atkinson, 10 Hare 348; Charter v. Charter, L. R., 7 H. L. 364, 377. In In re Blackman, 16 Beav. 377, the rule was transgressed, but the decision seems right without the questionable evidence, ante p. *379. (ƒ) 12 Ad. & El. 455; Wigr. on Wills 162. (g) Langham v. Sandford, 19 Ves. 649; 2 Tayl. Evid., p. 1009, 7th ed. Lord Kenyon's dictum, Thomas v. Thomas, 6 T. R. 677, seems therefore to be overruled. (h) Ante p. *424. most conclusive evidence of intention to use them in some popular or secondary sense be tendered: (i) whence it follows that a person, to whom the terms of the description are imperfectly applicable, may not, by parol evidence of facts tending to prove an intention in his favor, support his claim against another person exactly or more nearly answering to all the particulars in the description.] 14 -e. g. to ex answering the Thus, in Delmare v. Robello, (j) where a testator in 1785 bequeathed the residue of his estate, in trust to pay the interest for life to all the children of his two sisters, Reyne and clude an object Estrella; in case of the death of any, their issue to have description. their respective shares, with benefit of survivorship for want of issue. The testator died in 1789, leaving three sisters: Reyne, who was never married, but in 1757 changed her profession of religion from the Jewish to the Roman Catholic persuasion, and became a professed nun, and was baptized by the name of Maria Hieronyma, and lived at Genoa; and Estella and Rebecca, who were married, and lived at Leghorn. Rebecca had several children, who set up a claim on the ground that the testator intended Rebecca when he named Reyne. Parol evidence [of the circumstances as well as of testator's declarations] in support of this claim was rejected by Lord Thurlow, who suggested that Maria Hieronyma might have changed her mind, and have escaped into this country, and have married and had children, notwithstanding her vow. He decided, therefore, that the claim of the children of Rebecca was untenable, inasmuch as there was a sister answering to the name in the will; for he considered that the assumption of the coventual name did not prevent the applicability of the former name: it was a part of the profession, and was not meant for the rest (i) Wigr. on Wills, Prop. II., supra *417. And see Horwood v. Griffith, 4 D., M. & G. 708. In Grant v. Grant, L. R., 5 C. P. 727, Blackburn, J., cited with approval, “Blackburn on Contracts," where it is said that in applying the rule a distinction must be observed between contracts and wills, and a greater latitude allowed in construing wills, because in them the testator soliloquized, but that in a contract each party spoke to the other: and accordingly it was held in that case that "nephew" meant "wife's nephew," although it would not have been insensi ble with reference to extrinsic circumstances if it had been strictly interpreted. Sed qu.: a testator speaks to all persons interested under or against his will; and in Wells v. Wells, L. R., 18 Eq. 505, Sir G. Jessel, M. R., reaffirmed Sir J. Wigram's proposition and declined to follow Grant v, Grant.] 14. See Tucker v. Seamen's Aid Soc., 7 Metc. 188; Jackson v. Hart, 12 Johns. 97; Am. Bible Society v. Pratt, 9 Allen 109; Rom. Cath. Orph. Asylum v. Emmons, 3 Bradf. 144. (j) 1 Ves, Jr., 412. Evidence not admissible to exclude a person answering of the world; the former name, therefore, continued, and by that such persons were always spoken of. So, in Andrews v. Dobson, (k) where the bequest was to "James, son of Thomas Andrews, of Eastcheap, printer." There was no person of the name of Thomas Andrews in Eastto description. cheap, but there was James Andrews, a printer, who lived there he had one son, named Thomas, by his first wife, who was related to the testator; he had also a son by a second wife, named James, who was in no manner related to the testator. The son by the first wife claimed the legacy, insisting that the testator meant "Thomas, the son of James," instead of "James, the son of Thomas;" [and prayed some inquiry respecting these circumstances:] but Sir L. Kenyon, M. R., said that though there were cases in which legacies were left to persons by nicknames, and evidence had been admitted toshow that the testator usually called them thereby, yet he thought this was beyond all precedent, and dismissed the bill. In this case there could have been no doubt as to the identity of the father; but the difficulty was in admitting the claim of a son of a different name, there being a son of the same name. Again, in Holmes v. Custance, (1) where there was a legacy to the children of Robert Holmes, "late of Norwich, but now of London." It appeared that, at the date of the will, the testator had no relative. named Robert, but that a person of this name, *who was related to the testator, and] had gone from Norwich to London, at the age of fourteen or sixteen, had died in London, a few years before, leaving a child. It was contended that the legacy did not apply to the child of this person, but to the children of George Holmes, who was a relative of the testator, had been formerly of Norwich, and was then resident in London, and had several children, some of whom were in habits of intimacy with the testator; but Sir W. Grant held that the description was not so inapplicable to Robert, as to let in evidence that George was the person intended; that the sense of "late" was not "recently" but "formerly;" and as to his being dead at the time, that the testator might not have known or might have forgotten it, he being at a distance. [And in Wilson v. Squire, (m) where a testator bequeathed a legacy (k) 1 Cox 425. (1) 12 Ves. 279; see also Doe v. Westlake, 4 B. & Ald. 57, ante p. *433; [In re Ingle's Trust, L. R., 11 Eq. 578. to "The London Orphan Society in the City Road," and it appeared that there was no institution precisely answering this description, but there was one in the City Road called the Orphan Working School, which claimed the legacy: evidence was tendered that there was a society called the London Orphan Asylum at Clapton, and that the testator was many years a subscriber to it, and in his lifetime avowed his intention of leaving it a legacy; but Sir J. K. Bruce held, that the Orphan Working School was sufficiently described by the will, and therefore that none of the evidence was admissible. In Maybank v. Brooks (n) the rule was applied to a different species of case. A testator bequeathed a legacy to A, his executors, administrators and assigns:" A was dead at the date of the will, which, however, took no notice of the fact: but the personal representative of A claimed the legacy, insisting that the terms of the bequest made it transmissible, and in support of his claim proposed to read (amongst other) evidence of the testator's knowledge that A was dead: but Lord Thurlow rejected it, saying, "The only fact to which evidence is afforded is, that the death of A was within the knowledge of the testator. The end to which it is to be read is, that the legacy was meant to be transmissible: that could not be from a legatee who had been dead several years." "I must accordingly decree the legacy to be lapsed."] (0) Evidence of missible to sup intention inad And even where no person actually answers to any part of the description in the will, it would seem, upon principle, to be im*possible to admit parol evidence ["of intention"] in support of the claim of one to whom the description is in port claim of one to whom scription ap no part of de plies. every respect inapplicable: [for the will ought to be made in writing; and if the testator's intention cannot be made to appear by the writing, explained by the circumstances, there is no will.](p) Thus, Sir John Strange, (q) in citing a case where the executor constituted in a will was, "my nephew Robert New," which in the engrossing was written "Nune," and parol evidence was admitted, and thereupon New was declared the person meant, observed, that this would hardly have done, if it had not been for the relative words "my" nephew," and its appearing that New was the testator's nephew, and that he had no such nephew as Robert Nune. (n) 1 B. C. C. 84. (0) See as to this, ante p. *338. 5 M. & Wels. 369.} (q) Hampshire v. Peirce, 2 Ves. 218. (p) Per Lord Abinger, Doe v. Hiscocks, |