certainty which arises must come from behind the instrument, and is in this consideration of the phrase with propriety called a latent ambiguity: and indeed to a certain extent extraneous evidence must be resorted to in establishing the title under any devise, since, let the words be ever so clear, the person designed can only bring himself within the description in foro contentioso, by proof of his identity.

The late Chief Justice of the King's Bench, in the case of Thomas v. Thomas, 6 T. R. 676, makes this observation: "It has been a long established rule, that where there is a latent ambiguity in a will, the parties may go into extrinsic evidence to render that certain, which, without the aid of such evidence, is uncertain; but here the evidence has itself raised the ambiguity; on the face of the will there is no uncertainty." This passage seems to imply, that where there is no uncertainty on the face of a will, but the evidence raises the ambiguity, the case is incurable. Possibly, however, his Lordship did not mean to be so understood, since there would be tautology in the phrase of latens ambiguitas, unless it imported an ambiguity not existing on the face of the instrument, but lying behind in the dubiousness of the objects to which its provisions were directed, and therefore capable only of being explained by reference to those objects through the medium of external evidence.

the third: especially when he who was first named in the will was by the verdict found to be the eldest brother. Had the devise been to A. B. and C. to take successively, it would have been void for uncertainty.

The truth will be found upon consideration to be, that the state of facts raises the latent ambiguity', and may also dissolve it; but the patent ambiguity consists in the uncertainty of the language used, or in the vagueness of description or expression, and can be expounded only by the context and general sense of the instrument. Thomas v. Thomas", above referred to, was a case of the ambiguitas latens, wherein the words of the will comprised a clear and certain description, but the parol or extrinsic evidence raised the doubts respecting the intention of the testator. The state of facts in that case created the latent ambiguity; which facts were shortly these:

The testator devised lands to Mary Thomas, his grand-daughter, of Llechlloyd, in Merthyr parish, and it turned out in fact that the testator, at the time of his death, had a grand-daughter, of the name of Elinor Evans, who lived at Llechlloyd, in Merthyr parish, and a great-grand-daughter, Mary Thomas, an infant, of the age of two years, the only person of that name in the family; but it appeared that she lived at Green Castle, in the parish of Llangain, at the distance of some miles from Merthyr, in which place she had never been.

Here there was a person in existence to answer to the name in the devise; but she was neither the grand-daughter, nor living at Llechlloyd, in Merthyr parish; and there was another person, a granddaughter, who was of Llechlloyd, in Merthyr parish, but to whom the name did not apply. The

judge at nisi prius received the evidence (subject to the opinion of the Court as to its admissibility) to shew that the name of Mary Thomas was inserted by mistake for that of Elinor Evans; but the jury were not persuaded by it, so that the admissibility of that evidence did not come to be judicially decided. The contest between these claimants, to neither of whom the words of the disposition corresponded, opened the way by the uncertainty appearing on the parol evidence, for the title of the heir at law.

After it had been found that there was no mistake in the name, the question of course lay wholly between Mary Thomas, and the heir at law; or, in other words, the only consideration which remained was, whether the description was applicable, with sufficient certainty, to entitle her as the object of the disposition; in which shape of the contest the distinction which has been above shewn to have been taken in Beaumont v. Bell", in favour of those cases of defective dispositions, where the person intended was clearly perceived through the mistake, and no person was in existence to claim under the erroneous description, became very important; for though the jury had disallowed the pretensions of Elinor Evans, the court thought that in as much as the description both of place and relationship was applicable to her, such a degree of uncertainty as to the person intended was thereby introduced as was sufficient to exclude the application of the maxim of falsa demonstratio non nocet; for that rule will only apply si constat de per

2 P. Wms. 241.

Of the effects of a false or true de

sona (6). And therefore, as Elinor Evans could not take because nothing but the description or demonstratio belonged to her, and there was a person in existence and claiming, to whom the name applied; so neither was Mary Thomas suffered to take under the devise, because nothing but the name applied to her, and the description both as to place and kindred was precisely appropriate to another person in existence and contending for the preference on these grounds (7).

It is to be observed, that neither the christian nor surname of Elinor Evans agreed with the name in the scription. will; but where the mistake has been only in the christian name, and the instrument has contained a full and exact description of the person so imperfectly designated by name, although there has existed another person wholly answering to the name in both particulars, the particularity of the description has outweighed the advantage on the other side arising

(6) But a true description will assist a wrong name, if there is no other person of the name. 2 Vez. 217. And if there is a certain description, and a further description is added, it is immaterial whether the superadded description be true or false. See Bradwin v. Harpur, Amb. 375. Which case presents an instance of a transposition of parties, the legacy intended for one being given to the other by a very evident mistake of the names. See this subject ably commented upon in Doe on dem. Harris v. Greathead, 8 East, 91. see also 8 East, 149.

(7) In this case, the first ambiguity was ambiguitas latens, for it only appeared by reference to outward circumstances; but though extrinsic circumstances produced the ambiguity, they offered no media for its explanation; and this is the proper description of an incarable latent ambiguity.

from the coincidence in both the christian and surnames. As where the devise was to the Rev. Charles Smith, of Stapleford Tawney in the county of Essex, clerk, and the legacy was claimed by the Rev. Richard Smith, of Stapleford Tawney, in the county of Essex, clerk. It was contended that one Charles Smith, an officer in the army, who had lived at Rumford in Essex, and had been dead some time, was intended, and that so the legacy had lapsed; but it was proved by the widow of Charles Smith, that he died before the testatrix made her will; and upon the court's manifesting a decided opinion against the executor and trustee of the residuary legatee, the point was given up, and a decree was made for the legacy, with interest, but without costs, in favour of the plaintiff, the Rev. Richard Smith (8).

The result seems to be, that wherever an ambiguity arises from the inapplicability of the name or description, as such ambiguity is produced by the state of facts, it is open to explanation by parol evidence, being properly an example of the latens ambiguitas; but still the evidence, when let in, may increase instead of lessening the degree of uncertainty, or it may fall short of affording that degree of inference, which is requisite to decide the court or the jury.

(8) 6 Vez. Jun. 42. Smith v. Coney. So in Parsons v. Parsons, 1 Vez. Jun. 266. and in Garth v. Meyrick, 1 Bro. C. R. 30. circumstances weighed in favour of a person imperfectly named against another person to whom the name belonged, but who clearly appeared not to be the person intended, when the circumstances of description, and the facts coming in upon parol evidence, were coupled together.