norsdall v. Van Deventer, 51 Barb. 137, the devise was to the legal heirs of his (testator's) brother A., deceased, and to the legal heirs of his sister M., deceased, and to the heirs of his brother in-law W. V. At testator's death, W. V. was still living. It was held that the word "heirs," in so far as it related to the heirs of his brother-inlaw W. V., was used as synonymous with the word "children," for the will assumes that he was then living; that the children of W. V. were entitled to take, and that the estate became vested in them immediately upon the death of the testator. These cases were cited with approval in Cushman v. Horton, 59 N. Y. 149, in which the rule is laid down that to the word "heirs" must be given the ordinary legal meaning, unless it appears that the testator used the word in other than the primary legal sense, in which event courts should give effect to the intention of_the testator. If it be said that both in England and in this country the courts have more generally supported indefinite forms of transmissions by will than by grant, because in the case of wills they are intended to go into effect at a future time, and to provide for future and uncertain events, not only for individuals named, but also for described classes of donees, to be aşcertained by evidence at the death of the testator or afterwards, while in the case of the present conveyance the very nature of the act excludes the necessity of indefiniteness, it may be answered that this dif ference is not of moment in determining whether the particular rule of construction adopted in the cases cited is applicable here. The determination made was that, if from the whole will it was manifest that in using the word "heirs" the testator meant "children," the court should so construe it, and thus give effect to the intention of the testator. But the statute also requires the court to give effect to the intent of the grantor in making the conveyance before us, if it may be done consistently with the rules of law. It provides that, "in the construction of every instrument creating or conveying or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law." 1 Rev. St. (Edmond's Ed.) p. 699, § 2. As the intent of the parties is to govern in grants as well as wills, there seems to be no basis on which to found a distinction between them as to the interpre. tation to be given to the word “heirs," if in the one case as in the other it appears that it was not the intention of the grantor or testator to use it in its ordinary legal sense. We are then to ascertain whether the grantor intended by the words "the heirs of Warren Heath" to designate and describe the children of Warren Heath as his grantees. It has been determined in many cases that the word "heirs," notwithstanding its primary and well-understood meaning, is susceptible of more than one interpreta tion. Heard v. Horton, Vannorsdall v. Van Deventer, Cushman v. Horton, supra.

v.27N.E.no.11-61

"

And in determining which must be here given we may look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and the subject-matter of the instrument. French v. Carhart, 1 N. Y. 96; Coleman v. Beach, 97 N. Y. 545-553. At the date of the instrument Warren Heath had eight children, who were also the grandchildren of Benjamin Heath, the grantor. Warren Heath was not only living, but the deed distinctly recognizes that fact, in that-First, it recites that the "convey. ance is made subject to a certain judg ment rendered in favor of Jonas Rude of $250, the amount of which judgment the said Warren hereby agrees to pay;" and, second, the instrument undertakes to reserve "the whole use and absolute control of the said premises • ✦✦ to my son Warren during his life. These facts bring the question before us within the rule laid down in Heard v. Horton and other cases cited supra, that when a will recognizes the ancestor as living, and makes a devise to his heir in that name, it shows that the term was used as meaning the heir apparent of the ancestor named; or, as stated in the Vannorsdall Case, that the word "heirs" was used as synonymous with the word "children." That he intended to describe the children of his son Warren as his grantees is further supported by the fact that the grant is by its terms immediate, the grantor undertaking to reserve a life-estate in the premises to himself and to others for their lives. The conveyance was not to Warren Heath for life, and, after his death, to his heirs, but it constituted a present grant to persons whom the grantor designated as the heirs of Warren Heath, with an attempted reservation for the benefit of Warren, and the only persons answering that description in any sense in which the word is employed, whether technically or popularly, would be the children of Warren. The order should be affirmed, and judgment absolute rendered against the appellant, with costs. All concur, except BRADLEY and HAIGHT, JJ., not sitting.

(127 N. Y. 133) THOMAS et al. v. SCUTT. (Court of Appeals of New York, Second Divis ion. June 2, 1891.)

BILL OF SALE-CHATTEL MORTGAGE-PAROL EVI

DENCE.

Where a bill of sale is absolute in its terms of transfer, states the quantity and price of each class of property, and the total price, with a provision for the correction of mistakes as to quantity, and contains an agreement as to how the price is to be applied between the parties, and the vendee takes possession thereunder, parol evidence is not admissible to show that it was intended merely as a collateral security. Affirming 5 N. Y. Supp. 365.

Appeal from a judgment of the general term of the supreme court, in the fourth judicial department, affirming a judgment entered on the report of a referee. Action to recover the sum of $800 alleged by the plaintiffs to be due them from the defendant upon the sale of a quantity of lumber. The defendant denied the purchase, and alleged that all the lumber that he had of

ex

the plaintiffs' was turned out to him to secure advances that he had previously made to them, under the express agreement that it should be rafted to market, and sold as his lumber, and that he should account to them for the proceeds thereof when received, after deducting all penses and the amount of their indebtedness to him. The defendant further alleged that, owing to low water in the Delaware river, the lumber could not be got to market without great expense, necessarily incurred in taking it out of the river and rerafting it, and that the proceeds received by him were much less than the actual expenses and the amount of his claim against the plaintiffs. The action was tried before a referee, who found that June 11, 1883, the lumber in question was sold by the plaintiffs to the defendant for the sum of $728, which was to be applied by him upon a chattel mortgage given by them upon said lumber and other property to secure a debt of $1,600, and that soon after the balance of the mortgage was paid in cash. It appeared that the defendant, at about the date of the alleged sale, took possession of the lumber, and, after some delay, sold it; but, owing to the unusual difficulty of getting it to market, little or nothing was realized above expenses.

W. J. Welsh, for appellant. A. Taylor and John B. Gleason, for respondents.

VANN, J., (after stating the facts as above.) Upon the trial, the plaintiffs put in evidence a written instrument, dated June 11, 1883, duly signed by them, of which the following is a copy, viz.: "For the consideration hereinafter named, we hereby sell, assign, transfer, and deliver to Milo Scutt one raft of hemlock toggle timber, and loading thereon, now lying at Equinunk Eddy, just below the Rock, in Buckingham township, Pa., the said lumber being covered by a chattel mortgage of which the mortgage hereto attached is a copy, viz.:

4,000 feet cherry boards, at $12..... 35,000 maple plank, about, at $10...... 11,000 feet of toggle timber, at 3c.....

$48 00

350 00 830 00

$728 00

The same to apply on the amount due on said chattel mortgage, and, if any mistake in amount of lumber, same to be corrected." A chattel mortgage was annexed to this writing, dated March 29, 1883, given by the plaintiffs to defendant to secure the payment of $1,600 on the first of May following. It covered a large quantity of lumber in addition to that mentioned in the written agreement, and stated that it was all at Peas Eddy, a place within the state of New York. The indebtedness of the plaintiffs to the defendant on the 11th of June, 1883, amounted to the sum of $2,100, including that secured by the chattel mortgage. The plaintiff also showed that, shortly after the written instrument was given, they paid to the defendant enough money to fully equal the amount unpaid upon the mortgage, provided said sum of $728 had first been applied. Thereupon the defend. ant, in due form, offered to show "what

was said between the parties in reference to the bill of sale," but the offer was excluded, upon the ground that the writing was the best evidence, and that it could not be contradicted or avoided by parol. The defendant further sought to prove "that, prior to and at the time of the drawing of the bill of sale, the plaintiffs refused to make an absolute disposition of the lumber; that they were informed that such was not intended, but that the raft was in Pennsylvania, and that the chattel mortgage did not protect defendant against a levy upon or disposition of the lumber by the plaintiffs in that state; that plaintiffs should have the full benefit of the lumber, and what it brought on the sale when marketed, after paying the plaintiffs' claim, and the expense of running and marketing it; that plaintiffs said they were satisfied with that, and would make the bill of sale on this basis, and thereupon did sign the bill of sale." This evidence was also objected to and excluded upon the same ground. At a later stage of the trial the defendant, under the same objection, was permitted to testify in reference to what was said between himself and one of the plaintiffs just before the written instrument, called for convenience a "bill of sale," was executed; but it was subsequently stricken out on motion of the plaintiffs, and against the objection of the defendant, upon the same ground that had governed the prior rulings. Exceptions to these decisions of the referee present the only question that the learned counsel for the defendant has asked us to decide. It is a general rule that evidence of what was said between the parties to a valid instrument in writing, either prior to or at the time of its execution, cannot be received to contradict or vary its terms. This rule is not universal in its application, because the courts, in their effort to prevent fraud and injustice, have laid down certain exceptions, which, although correct in principle, are sometimes so loosely applied in practice as to threaten the integrity of the rule itself. 1 Greenl. Ev. § 284a. The real exceptions may be grouped in two classes, the first of which includes those cases in which parol evidence has been received to show that that which purports to be a written contract is in fact no contract at all. Thus, fraud, illegality, want of consideration, delivery upon an unperformed condition, and the like, may be shown by parol, not to contradict or vary, but to destroy, a written instrument. Such proof does not recognize the contract as ever existing as a valid agreement, and is received, from the necessity of the case, to show that that which appears to be is not, and never was, a contract. Illustrations of this class may be found in the following citations: Beecker v. Vrooman, 13 Johns. 301; Hammond v. Hopping, 13 Wend. 505; Johnson v. Miln, 14 Wend. 195; Benton v. Martin, 52 N. Y. 570; Grierson v. Mason, 60 N. Y. 394; 1 Greenl. Ev. § 284; Phil. Ev. (2 Cow. & H. notes) p. 665, note 494. The second class embraces those cases which recog nize the written instrument as existing and valid, but regard it as incomplete,

either obviously, or at least possibly, and admit parol evidence, not to contradict or vary, but to complete, the entire agreement, of which the writing is only a part. Receipts, bills of parcels, and writings that evidently express only some parts of the agreement, are examples of this class, which leaves the written contract unchanged, but treats it as a part of an entire oral agreement, the remainder of which was not reduced to writing. Two things however, are essential to bring a case within this class: (1) The writing must not appear, upon inspection, to be a complete contract, embracing all the particulars necessary to make a perfect agreement, and designed to express the whole arrangement between the parties, for in such a case it is conclusively presumed to embrace the entire contract. (2) The parol evidence must be consistent with, and not contradictory of, the written instrument. Chapin v. Dobson, 78 N. Y. 74, is an instance of this class, and, although near the border line, illustrates the two requirements just mentioned. In that case it was held competent to show by parol evidence that a written contract to furnish machinery of a specified kind, at a definite price, within a certain time, and to deliver it in a particular way, was part of an entire verbal contract, which provided that the machines should be so made that they would do the work of the person who ordered them to his satisfaction. The ground of the decision was that there was nothing on the face of the instrument to show that it was the whole agreement between the parties, and that the oral guaranty did not contradict and was not inconsistent with the written contract.

In Eighmie v. Taylor, 98 N. Y. 288, the court had under consideration a written instrument that was regarded as, upon inspection, appearing to be a full, definite, and complete agreement of bargain and sale, and therefore held that evidence of a verbal warranty in that case was inadmissible. In the course of the opinion, comment was made upon Chapin v. Dobson, supra, in this way: "It was said of the instrument then in question that there was nothing upon its face to show that it was intended to express the whole contract between the parties; the inference being, as was declared in an earlier case, that where a contract does indicate such intention and design, and is one consummated by the writing, the presumption of law arises that the written instrument contains the whole of the agreement, and that, where there is such formal contract of bargain and sale executed in writing, there can be no question but that the parties intended the writing as a repository of the agreement itself;" citing Filkins v. Whyland, 24 N. Y. 338. A further illustration of the inflexibility of the first of the two requirements mentioned may be seen in the still later case of Marsh v. McNair, 99 N. Y. 174, 1 N. E. Rep. 660, where the written instrument was in these words: "This is to certify that, in consideration of crediting C. H. Marsh at the Exchange Bank of Lima, $353.72, paying mortgage (on property formerly deed

ed by J. R. Marsh, in Avon, to C. W. Gibson) given by William F. Russell to C. H. Marsh, $110.46, and indorsing $35.82 upon a note made by C. H. Marsh, June 8, 1871, for $300, we jointly and severally sell, assign, and transfer all our right, title, and interest in two policies, Nos. 4,277 and 4,287, upon the lives of Charles H. Marsh and John R. Marsh, issued by the National Life Insurance Company of the United States of America to Chauncey W. Gibson, of Lima, N. Y." It was held that, in the absence of any claim of fraud or mutual mistake as to the contents of the assign. ment, it was conclusive, and that oral evidence was incompetent to show that it was executed as collateral security only. The opinion recognizes as well settled that an instrument assigning or conveying real or personal property in absolute terms may, by parol evidence, be shown to have been intended as security merely; states the history of the exception, and its theory; but declares, in words applicable to the case in hand, that “this instrument is more than an assignment. It contains what both parties agreed to do. It shows that the assignment was made for the purpose mentioned, and precisely what Gibson was to do in consideration thereof. He became bound to do precisely what was specified for him to do, and he could have been sued by the assignors for damages if he had failed to perform. Hence the instrument is not a mere as signment or transfer of the policy. It is a contract in writing, within the rule which prohibits parol evidence to explain, varv, or contradict such contracts. The authorities cited in the opinion apply with equal force to the case now under consideration.

The principle upon which parol evidence is held admissible to show that a simple assignment, although absolute in terms, was intended as security merely is the sup posed incompleteness of the instrument, and it is not regarded as contradicting the writing, but as showing its purpose. Truscott v. King, 6 N. Y. 147, 161; Chester v. Bank, 16 N. Y. 336, 343; Horn v. Ketel tas, 46 N. Y. 605, 610. Where, however, instead of a mere transfer or assignment, there is a contract, appearing on its face to be complete, with mutual obliga. tions to be performed, “you can no more add to or contradict its legal effect by parol stipulations, preceding or accompany. ing its execution, than you can alter it, through the same means, in any other respect. Phil. Ev. (2 Cowen & H. notes.) 668; Renard v. Sampson, 12 N. Y. 561; Shaw v. Insurance Co., 69 N. Y. 286; Long v. Iron Co., 101 N. Y. 639, 4 N. E. Rep. 735; Snowden v. Guion, 101 N. Y. 458, 5 N. E. Rep. 322; Gordon v. Niemann, 118 N. Y. 153, 23 N. E. Rep. 454; Humphreys v. Railroad Co., 121 N. Y. 435, 24 N. E. Rep. 695; Engelhorn v. Reitlinger, 122 N. Y. 76, 25 N. E. Rep. 297. In the foregoing classification collateral agreements are not included, because they are separate, independent, and complete contracts, although relating to the same subject. They are allowed to be proved by parol, because they were made by parol, and no part thereof committed to writing. Evidence to explain