1174 : In the case of Thomas v. Thomas, (1) where the testator had devised to his grand-daughter Mary Thomas of Llechlloyd in Merthyr parish, it appeared, that at the time of his death he had a grand-daughter of the name of Elinor Evans, one of the lessors of the plaintiff, who lived in the place and parish named in the will, and also a great grand-daughter, Mary Thomas, the defendant, the only person of that name in the family, but who lived in another place, and had never been in Merthyr parish; the * 415 plaintiff's counsel at the trial offered parol evidence to shew, that the person, who drew the will, had made a mistake in the name of the devisee; and Mr. Justice Lawrence received the evidence, (2) subject to the opinion of the Court above on its admissibility; but as the jury were of opinion, that the name had not been inserted by mistake, and therefore found for the defendant on the first count, which laid the demise from Elinor Evans, the admissibility of this evidence did not afterwards form any part of the argument. After this finding of the jury, the question was between Mary Thomas and the plaintiff, on a demise from the heir at law, and in this stage of the cause the defendant's counsel offered evidence of declarations made by the devisor previous to the making of his will, expressive of his regard for the plaintiff, and of his intention of giving her the premises in dispute. But this evidence was rejected, on the ground, that nothing dehors the will could be received to shew the intention of the testator, which could only be collected from the words of the will itself, after the removal of any latent ambiguity in the description of persons or other terms in the will. And this opinion was afterwards affirmed by the Court of King's Bench." If there had been no person," said Lord Kenyon, "to answer the description of grand daughter, living at Lleechlloyd in Merthyr parish, I should have rejected the de (1) 6 T. R. 671. And see Lord Walpole v Ld Cholmondeley, 7 T. R. 138. (2) See 8 Vin. Ab. 312. pl. 29.; and Hampshire v Pierce, 2 Ves. 216., cited by Lawrence J. 6 T. R. 678. See ante, p. 468. scription, and have said, that the devise applied to Mary Thomas; but it appears, that there is another person answering that part of the description, who is also (in another part of the will) an object of the testator's bounty. Then, as there are two parts of the description not answering to Mary Thomas, who is named in this clause of the will, we are left to conjecture, who was meant by the devisor: but the law will not allow an heir at law to be disinherited by conjecture. And with regard to the other question respecting the rejection of evidence," [173] added Lord Kenyon, "it was properly rejected; the supposed declarations having been made by the testator, long before the will was made: but, had they been made at the time of making the will, I should have thought them admissible evidence." (a) * 416 (a) Where a legacy was given to Samuel Powell, the son of Samuel Powell, who had two sons, one named William and the other Samuel, parol evidence was admitted to show that William was the person intended by the testator by the name of Samuel, the former being the grandson of the testator, who usually called him by the name of Samuel, but the latter being the son of Samuel Powell the elder by a second marriage, with whom the testator had no connection or acquaintance whatever. Powell v Biddle, 2 Dall. 70. In an action of ejectment to recover a lot in the military tract in the state of New York, the plaintif claimed under a patent to David Hungerford, and under an act of the legislature, for the relief of Daniel Hnngerford, which recited that letters patent had been issued in the name of David Hungerford, but the grant was intended for Daniel Hungerford, it was therefore enacted that the letters patent should be deemed to have vested the lot in Daniel Hungerford, in the same manner as if they had been issued in the name of the said Daniel. Evidence was given to show that Daniel Hungerford had served in the New-York line, and although de scribed in the ballotting book as David H., yet that there was no other Hungerford than Daniel in the company to which he was described as belonging. The defendant showed the existence of a man of the name of David Hungerford, who served in the New-York line, and under whom he claimed a verdict was found for the plaintiff, and a motion for a new trial was denied. Kent, Ch. J. in delivering the opinion of the court says: "If Daniel Hungerford was the soldier who belonged to that company and regiment, and no person of the name of David Hungerford was a soldier in that regiment, there must have been a misnomer in the Christian-name of the patentee. I think the evidence taken at the trial establishes the mistake; and the question is, whether that evidence was admissible, and if so, what is the legal effect of it? Here is no ambiguity on the face of the patent, but it is a latent ambiguity, and according to general rules the parties may go into extrinsic evidence to ascertain the grantee, and clear up the mistake in the soldier's name. Parol evidence has been admitted in the case of a will, Patent ambi. guity. If a clause in a deed, or will, or any other instrument, is so ambiguously or defectively expressed, that a court to ascertain the person when two were of the same name, or when there had been a mistake of the Christian name of the devisee. But with respect to deeds and grants, the old general rule seems to have been that an omission or mistake of the Christian-name of the grantee rendered the grant void. Lord Coke, however, holds that a grant may sometimes be good, though the grantee's name of baptism be mistaken (Co. Litt 3. a.) Thus, if lands be given to Robert Ear] of Pembroke, when his name is Henry, or to George Bishop of Norwich, when his name is John, the grant is still good, because there can be but one of that name and dignity. If then the patent in this case had designated the Hungerford intended, by specifying the regiment and company to which he belonged, at the time of his death, it might have been good, as being equally capable of being reduced to certainty. But the patent adds no description or demonstration to the name of the patentee. It is simply a patent of the lot to David Hungerford; and according to the rule which has been mentioned, the heirs of Daniel Hungerford cannot take under that patent, because their ancestor is not the patentee named. In all the cases which I have seen where there was a misnomer, there was some, description connected with the name, and there was no other person who set up a title in competition, under the erroneous name; but here the defendant claims under one David Hungerford, and contends that he was the grantee, and a soldier in the line of this state; though the proof of the fact is extremely weak, and no proof was offered that he was a soldier in M'Kean's company, in the first regiment, or that he belonged to either of the two regiments of infantry, for the use of whom the military bounty lands were appropriated. The verdict is to be considered as establishing the fact that Daniel was the soldier who served, and must have been the soldier intended. The grant then is either void by reason of the misnomer, or the parol proof supplies and corrects the mistake in the Christianname of the soldier intended, and in either case, the lessors of the plaintiff are entitled to recover." Jackson d. Dickson & others v Stanley, 10 Johns. Rep. 133. In a subsequent case, which was also an action of ejectment for a lot in the military tract, the plaintiff gave in evidence letters patent to George Houseman; it was stated in the ballotting book that a man of the name of George Houseman, belonged to Wendell's company in the first regiment. The defendant offered to < prove that no such man as George Houseman was enlisted or served in Wendell's company, and that a man of the name of George Hosmer did enlist and serve in that company, and that the patent was issued in the name of George Houseman by mistake, and that George Hosmer was the soldier entitled to the patent and intended thereby. This evidence having been rejected by the judge, a verdict was found for the plaintiff, and on a motion for a new trial it was held by a majority of the court that the patent could not be avoided in a collateral action, but that if there was a mistake, the proper remedy was by scire facias, or other proceedings for that purpose in chancery. Platt, J. in delivering the opinion of the majority of the judges observed that this case was distinguishable from that of Jackson v Stanley in two respects. 1. The alleged mistake here is in the surname, and not merely in the Christian-name of the grantee. 2. The state bas not in this case, interfered to assert its right by a new legislative grant to the opposite claimant. "The rule," says the learned judge, "is indisputable, that parol evidence cannot be received to vary or contradict a written instrument of of law, which has to put a construction on the instrument, is unable to collect the intention of the party, evidence of the declaration of the party cannot be admitted to explain his intention; but the clause will be void on account of its uncertainty. (a) In many cases an apparent uncertainty may be removed by collecting the gen clear, certain, and unequivocal import. A latent ambiguity may be explained by parol proof in order to elucidate and explain written words of doubtful sense, as if a grant be made to John Smith, and there be several persons of that name, parol evidence is admissible to explain which of the persons bearing the same name was intended, So, parol evidence would be admissible to prove, that George Houseman and George Hosmer are the same person. But certainly it is not explaining a latent ambiguity, to prove that a grant to George Houseman, a real person, was intended for another person of the name of George Hosmer. Such an extension of the rule would destroy the security of written conveyances. If a different person may be substituted by parol proof, for the person certainly described as grantee in a deed, there is no other essential part of the deed which might not be altered in the same way. Such a relaxation in the established rules of evidence, would defeat the spirit and policy of the statute of frauds, which requires conveyances of land should be in writting." Thompson, Ch. J. dissented on the ground that this case could not be distinguished from that of Jackson v Stanley. Speaking of that case he says; "If, under the patent, the title was vested in David Hungerford, it was not, nor could be pretended, that the legislature could de vest him of his title, and give it to Daniel Hungerford, the person really intended as the patentee. The patent to David must be first got rid of, before the act of the legislature could take effect, and so it was considered by the court. Notwithstanding there was a person of the same name with the patentee, who claimed title to the land, the court said the patent was void, because he was not the person intended, and that it was competent to show this by parol evidence." Jackson d. Houseman v Hart, 12 Johns. Rep. 77. A. by a written contract agreed to receive of B. 60 shares of the Hudson bank, on which 10 dollars per share had been paid, and to deliver B. his note for 667 dollars, and pay him the balance in cash; and also, to pay 5 per cent, advance. The question was whether it was competent for B. to explain by parol, whether the 5 per cent. advanced on the shares, was to be on the sum then actually paid in, or on the nominal amount of the shares. It was held that this was a latent ambiguity, and that the parol evidence was admissible. Cole v Wendell, 8 Johns. Rep. 116. (a) In Dinkle's Leesee v Marshall, 3 Binney 587., it was held that declarations of the grantor, at and immediately before the sealing and delivery of a deed, are admissible to show that he did not intend to convey what might nevertheless be included within the description of the deed. In Drum v Lessee of Simpson, 6 Binney 482., Tilghman, Ch. J. says that it had been long settled in the Sup. Court of Pennsylvania that parol evidence might be received to prove what passed before and at the time of the execution of the deed, if the party offering the evidence alleges fraud or mistake in the transaction. Et vide Hurst's Lessee v Kirkbridge, | Binney 616. Reichart v Castator, 5 Binney 109, * 417 (474) eral intention from other passages in the writing, so as to make the whole consistent; or by a reference to some event, or some other writing, or some medium of expla nation, adverted to in the instrument. But when, after comparing the several parts of a written instrument, and collecting all the lights which the writing itself supplies, the intention of the parties still appears to be uncertain, parol evidence of their intention is not admissible."Ambiguitas patens," says Lord Bacon, (1) (that is, an ambiguity apparent on the deed or instrument,)" cannot be helped by averment; and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law: for that were to make all deeds hollow, and subject to averment, and so in effect to make that pass without deed, which, the law appoints, shall not pass but by deed. It holds generally, he adds, *that all ambiguity of words within the deed, and not out of the deed, may be helped by construction, or in some cases by election, but never by averment, but rather shall make the deed void for uncertainty. (a) And in the case of a will, if any devise is expressed doubtfully and with uncertainty, the only construction, which it is capable of receiving, is by comparing it with the other parts of the will; the declarations of the testator are not admissible to remove the apparent ambi guity, or to explain his intention. As, for example, if the devise is to "one of the sons of J. S." who has several sons, such an uncertainty in the description of the devisee cannot be explained by parol proof. (2) So in a case, where the testator made dispositions in his will to several persons, among others to his wife and niece, who were the only women mentioned in the will, (1) Bac. Elem, rule 23. Doe dem. 550 Tyrrell v Lyford, 4 Maule & Selw. (2) 2 Vern. 621. (a) Vide 6 Mass. 440. Richards v Killam, 10 Mass. Rep. 239. |