[And in Miller v. Travers, (r) where a testator devised all his freeSame rule as to hold and real estates whatsoever, situate in the county of Limerick, and in the city of Limerick, to trustees and subject of gift. [(r) 8 Bing. 244, 1 M. & Sc. 342.] The judgment of Tindal, C. J., contains a full and able examination of the authorities. [See also Okeden v. Clifden, 2 Russ. 309; In re Clergy Society, 2 K. & J. 615; In re Peel, L. R., 2 P. &. D. 46; Barber v. Wood, 4 Ch. D. 885. Beaumont v. Fell, 2 P. W. 141, 2 Eq. Cas. Ab. 366, pl. 8, where a legacy to "Catherine Earnley" was, upon evidence of intention, held well bequeathed to Gertrude Yardley, is overruled (5 H. L. Cas. 168); unless it can be deemed a case of nick namewhich is questionable. The same may be said of Masters v. Masters, 1 P. W. 425, where on a legacy to "Mrs. Sawyer" inquiry was directed whether Mrs. Swapper was the person intended.]15 15. It is a well established rule that a misnomer of the legatee or devisee is immaterial, if the person really intended can be identified by the description in the will. Alabama Conference v. Price, 42 Ala. 39; Billingslea v. Moore, 14 Ga. 370; Smith v. Smith, 4 Paige 270; Gardener v. Hyer, 2 Paige 11; President, &c., v. Norwood, 1 Busb. Eq. 65; Dom. & For. Miss. Soc. Appeal, 30 Penna. St. 425; Cresson's Appeal, 30 Penna. St. 437; Gass v. Ross, 3 Sneed (Tenn.) 211; Ayres v. Weed, 16 Conn. 291; Preachers' Aid Society v. Rich, 45 Me. 552; Second Cong. Soc. v. First Cong. Soc., 14 N. H. 315. Thus "Phillis" has been shown to mean "Philip," Tudor v. Terrel, 2 Dana 49; "Priscilla Picard" to be intended for "Paris Picard," Hart v. Marks, 4 Bradf. 161; Daniel" for "David," Jackson v. Stanley, 10 Johns. 133; "Cornelia Thompson" for "Caroline Thomas," Thomas v. Stevens, 4 Johns. Ch. 607; "Samuel, son of Samuel," for "William, son of Samuel," Powell v. Biddle, 2 Dall. 70; E. A. C" for "E. A. S." (married name of E. A. C., which was unknown to the testator), Scanlan v. Wright, 13 Pick. 527; “John Evans, the son of my nephew James Evans," for "James Hooper Evans, the son of the testator's nephew James Evans," Evans v. Hooper, 2 Gr. Ch. (N. J.) 204; “my nephew James, son of Frederick," for "my nephew James' son Frederick," ex parte Hornby, 2 Bradf. 420; "Cormac, son of my brother Cormac," for "Cormac, son of the testator's only brother James," Connolly v. Pardon, 1 Paige 291. So "The American Home Missionary Tract Society," for the "American Tract Society," Button v. Am. Tract Soc., 23 Vt. 336; "the Methodist Episc. Mission at Bombay," for "the Meth. Episc. Mission at Lucknow," McAllister v. McAllister, 46 Vt. 272; “The Congregational Foreign Missionary Society," for the "American Board of Commissioners of Foreign Missions," Howard v. Am. Peace Soc., 49 Me. 288; the "Meth. Episc. Missionary Society of Maine," for the "Trustees of the East Maine Conference of the Meth. Episc. Church," Straw v. Trustees, 67 Me. 493; the "Franklin Seminary of Literature and Science, Newmarket, N. H.,” for the "Trustees of the South Newmarket Methodist Seminary," Trustees, &c., v. Peaslee, 15 N. H. 317; the "trustees who hold the funds of the Theological Seminary at Princeton," for the "Trustees of the Theological Seminary of the Presbyterian Church at Princeton," Newell's Appeal, 24 Penna. St. 197; the "New Colonization Society in Africa," for the "American Colonization Society for settling free persons of color in Africa," Maund v. McPhail, 10 Leigh 199. In describing the subject matter of the gift, parol evidence is also admissible to correct a misdescription. Thus in Allen v. Lyons, 2 Wash. C. C. 475, it was held that a house and lot on Fourth street were intended by a devise of a house and lot their heirs. At the time of making his will, the testator had no real estate in the county of Limerick, but he had considerable real estates in the county of Clare: and it was held by Lord Brougham, L. C., assisted by Tindal, C. J., and Lord Lyndhurst, C. B., that evidence to prove that the testator intended his estates in the county of Clare to pass by the devise, and that the word Limerick was inserted by mistake instead of Clare, was not admissible.] for names not And in no instance has a total blank for the name been filled up by parol evidence. (8) In such cases, indeed, there is no Total blanks certain intent on the face of the will to give to any per- to be supplied. son: the testator may not have definitively resolved in whose favor to bequeath the projected legacy. (t) The effect of partial or imperfect descriptions, however, has often come under consideration. In Hunt v. Hort, (u) where Partial blanks the bequest was to Lady Lord Thurlow considered supplied. it as equivalent to a total blank, and, therefore, that the name *could not be supplied by parol evidence. But in Abbot v. Massie, (x) where the bequest was to Mr. and Mrs. G., Lord Loughborough directed an inquiry as to who Mrs. G. was. Of course, if there had been more than one person answering to the imperfect description in the will, and the evidence had failed to point out which of them was the intended object of the testator's bounty, the bequest would, in both the preceding cases, have been void for uncertainty. sometimes ad though imma [At the conclusion of his judgment in Blundell v. Gladstone, the V. C. said he decided the case upon the words of the Evidence will, coupled with that evidence only which had been missible given as to the state of the Weld family at the date of terial. the will, and which he thought was the only part of the evidence which ought to be received. (y) But besides that evidence there was parol evidence (2) of the testator having, both before and after making his will, and even after correction of his mistake, repeatedly called the on Third street, the testator having no property on Third street; so, in Winkley v. Kaime, 32 N. H. 268, by a part of "lot 37 which I purchased of A" was intended lot 97, there being no lot 37; so, a farm described as containing eight fields will pass, though it is shown to contain nine fields, Coleman v. Eberley, 76 Penna. St. 197. See also Doe v. Roe, 1 Wend. 541. [(8) Baylis v. Att.-Gen., 2 Atk. 239; Ulrich v. Litchfield, Id. 372; Taylor v. (t) Per Parke, B., Doe v. Needs, 2 M. & Wels. 139.] (u) 3 B. C. C. 311; see also 1 M. & Sc. 351. (x) 3 Ves. 148: [and see In re De Rosaz, 2 P. D. 66. (y) 11 Sim. 488. (2) Id. 470. possessor of Lulworth by the name of Edward Weld. This evidence had been received in the master's office, and in delivering the opinion of the judges in D. P., (where the suit was carried,) Parke, B., said, they thought it was rightly received. (a) Hence it is to be inferred that evidence (to which, upon the principles discussed in this chapter there is per se no objection) of facts connected with the case, and which may by possibility influence the construction of the will, is admissible, although ultimately it is found to be immaterial and has to be excluded from consideration.] (b) (a) 1 H. L. Cas. 778, nom. Camoys v. tower, 4 Russ. 532, n.; Sayer v. Sayer, 7 Blundell. Hare 381, Wigr. on Wills, pl. 103.] (b) See also Lowe . Lord Hunting INDEX TO VOL. I. A. ACCELERATION, none where limitation subject to void trusts, 629, et seq. ACCUMULATION, trust for, during minority of any tenant in tail, void, 540. how regulated by statute, 573. period for, is to be calculated exclusive of day of death, 576. one statutory period for, only can be taken, ib. trust for, during minority of any unborn person, whether valid, ib. exceeding statutory limits, good pro tanto, 578. transgressing common law rules against perpetuity, void altogether, ib. for payment of testator's debts good though unlimited, 579. till a given sum be reached good to the extent allowed by statute though for payment of debts of another person must not contravene common law but is not affected by the statute, ib. construction of the exception in statute as to portions, 580. adding accumulations to capital is not raising portions, 581. legacy is not a portion though parent residuary legatee, 582. accumulations valid or not according as by alternate contingency they do or as to nature of interest parent must take to render raising of portions by, destination of income released by statute from, 584. nature of interest of heir in rents released from, by statute, 586. implied trust for, is within the statute, ib. whether trust for, by means of policies of assurance, within the statute, 587. ACKNOWLEDGMENT of will or signature by testator, Under 29 Car. II. what amounted to, 212. might be before each witness separately, 209. Under 1 Vict., c. 26. must be of the signature, not of the will, 253. ACKNOWLEDGMENT, (continued.) See what amounts to, 252, et seq. must be before both witnesses simultaneously, 254. may be by gestures, 253. of former signature is a sufficient re-execution, 254. ATTESTATION-PRESENCE-SIGNATURE-WITNESS. ACT of Parliament, sale under compulsory power in, effect of, 327. ACTION (CHOSE IN), cannot at law be devised away from executor, 155. ACTION (RIGHT OF), formerly not devisable, 153. "ACTUAL SERVICE" of soldiers and sailors, 60 n., 241 n. ADDITIONAL legacy, construction of gift of, 354. ADMISSION of trust by trustees, where no trust declared by will, 233 n. "ADVISE," effect in creating trust, 685. AFTER-ACQUIRED LAND, devisable, 156 n. statutes as to, in U. S., 602 n., 603 n. whether republication by codicil extends to, 364. AGE, in computing, day of birth included, 91. as affecting capacity, 63, 93 n. AGENT, effect of direction to devisee to employ particular person as, 704, et seq. AGREEMENT, held testamentary, 36. for sale, a revocation of will in equity before 1 Vict., c. 26, 324. effect of, since that statute, 326. for settlement on marriage also a revocation, 325. ALABAMA STATUTES, disposing age, 61 n. married woman's testamentary capacity, 79 n. after-acquired property, 156 n., 602 n. attestation, 198 n. legacy to witness, 226 n. revocation by marriage, 269 n. revival of former, by revocation of later, will, 365 n. perpetuity, 504 n. accumulation, 573 n. no lapse of gift to descendant, 638 n. ALIEN, devise by, voidable, 86. will vest his defeasible title in his devisee, ib. on death of intestate, lands escheat, ib. may take devise by English statute, 185. at common law until office found, ib. in the United States, 86 n., 185 n. could always take personalty, 185 n. |