Imatges de pàgina
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Of the ef fect of a

blank left name of a

for the

legatee.

Some ambiguities patent are not ineura ble.

Thus much as to mistakes in the names and descriptions of persons, by which it appears, that very wide deviations and mistakes have been corrected by parol and extrinsic evidence. But when a blank is left for the name of a legatee or devisee, it is too much to set up an object of the testator's bounty, by any description of evidence. Thus in the case of Hunt v. Hort (9), where the testatrix directed that her other pictures (having made some previous specific bequests of pictures), should become the property of Lady the Chancellor said he could not supply a blank by parol evidence; though there certainly were some strong circumstances in the will itself, to shew that Lady Hort was the person intended. But where there was a blank only left for the christian name, evidence was without difficulty read to shew the testator's intentions, with regard to the person answering to the surname. And two initials of the person to whom a legacy is given, have been filled up by parol evidence of the person intended (10).

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It must be allowed, that, in the last instance, the rule of admitting parol evidence in the case of an

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(9) 3 Bro. C. R. 311.; and the same point was adjudged in Baylis and Church v. the Attorney General, 2 Atk. 239.; and again in Castledon v. Turner, 3 Atk. 257.: and see Pym v. Blackburn, 3 Vez. Jun. 457.

(10) Abbott v. Massie, 4 Vez. Jun. 148.; and where a will is hardly legible, and the legacies are in figures, the court will refer it to the Master to examine what the legacies were. So where a legatee's name was falsely spelt, it was referred to a Master to see who was intended. 1 P. Wms. 425.

ambiguity latent, and rejecting it when offered to expound an ambiguity patent, becomes a little unsteady. Where a testator gives a legacy to Mrs. G. it is not easy to shew that the ambiguity which this imperfect designation creates is not an ambiguity arising upon the face of the will, and, as such, an ambiguity pa

tent.

Perhaps we must allow that the rule is flexible to the extent of admitting extrinsic evidence in a few particular cases, where the ambiguity, though patent, arises from something short in the expression or designation of the objects of the testator's intention, and is of a nature calculated to receive an easy explanation from outward facts.

So in other cases, although the effect of a positive clause, is not to be controuled by inference from other parts of the instrument; yet if matter can be collected from the general context of the instrument, the approach to an ambiguity patent in a particular clause or sentence, will not exclude the admission of parol evidence, provided it tends to confirm this collective inference from the context. Indeed, that can scarcely be termed an ambiguity, which is capable of an exposition from other parts, or from the bearing and scope, of the instrument. And it is generally true, that where the context of the instrument reflects light upon an ambiguous passage, but not strong enough to decide the exposition with sufficient certainty, it may nevertheless afford a ground for the admission of extrinsic evidence. Perhaps, too, we may go a step further, and say, that where

Jones v. Colbeck, 8 Vez. Jun. 42.

of the

lights re

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lar passages by

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the cou

text.

such secondary grounds of construction are morally decisive, as may sometimes be the case, it may be doubted, whether any extrinsic evidence can be received to contradict it; for instruments are not to be construed piecemeal, but illustration is to be borrowed from all the parts of them, to give light to particular passages.

In Ulrick. Litchfield', the ambiguity was also upon the face of the instrument, but there was a bearing in the language of the will that assisted the sense; parol evidence was therefore, as it seems, very consistently and properly admitted, to decide the preponderance. The devise in Castledon v. Turner, upon which the question arose, was considered as receiving illustration from the other parts of the will, and from a natural order of preference, inferrible both from the instrument itself, and from the relation of the persons concerned; so that the particular uncertainty was expounded by a comparison with the general tenour and object of the will; yet the Lord Chancellor seemed to hold, that as it was a case in which there was an absolute omission of a devisee, no extrinsic evidence could be admitted. But the case, as it was regarded by his Lordship, did not stand in need of it, there being enough in the will for its own exposition. The point of the case was this:-W. bequeathed his lands to his wife for her life, and after her decease, to M. D. the niece of his wife, and proceeded thus: "Item, I give the use of 5001. stock for her natural life, but after her decease, I give the 500l. among my wife's brothers and sis

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ters."

Lord Hardwicke considered this as a case of the absolute omission of a devisee, and nearly the same as where a blank is left for the name of the devisee, in which case parol evidence is always excluded.

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Upon the whole it appears that whatever doubts may exist, whether in any case of a palpable ambiguity patent, any help can be borrowed from mere parol evidence, consisting of words and declarations; yet it seems to be settled in practice, that if the The courts court can, from the lights furnished by the instru- times look ment itself, gain some foundation of conjectural in- instrument, ference, they will look out of the instrument itself the inten to the situation of the parties or persons concerned (11). Masters v. Masters (12), was a strong case decided on this principle. There a testatrix gave a sum of money to all and every the hospitals, without saying where the hospitals intended by her were; but because it appeared that the testatrix lived at

and infer

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the situa

tion of the

person or property.

(11) In the case of Crone v. Odell, Ball and Beatty's Reports of Cases in the Court of Chancery in Ireland, page 449. we find Lord Chancellor Manners thus expressing himself on this point: "An argument has been urged by the counsel for the defendant (with a view to exclude the considération of the state of the testator's family), that the court cannot travel out of the will for that purpose. The contrary, however, has been held to be law from the time of Wild's case, 1 Rep. 16. to the present time. In Goodinge v. Goodinge, 1 Vez. 231. the same argument was urged, and over-ruled by Lord Hardwicke; and his opinion on that point has been confirmed by the uniform decisions of courts of equity ever since.

(12) 1 P. Wms. 423. It appears also by this case, that a blank left in a codicil may sometimes be supplied from the will.

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Canterbury, and moreover, that she took notice by her will of two Canterbury hospitals; the devise was held not to be void for uncertainty, but to have been intended for all the hospitals of Canterbury.

The same practice of looking out of an instrument to the situation of the parties concerned, for collecting inferences of intention, appears in the case of Harris v. the Bishop of London, which was thus: Talbot Barker being seised in fee of a real estate, as heir on the part of his mother's mother, and being also seised in fee of a very small estate of 4l. per annum, as heir of his own father, devised all these lands to trustees and their heirs, in trust to pay several annuities and charities; after payment of which, he devised the residue of the rents and profits of the premises to his own right heirs of his mother's side, for ever and the question was, who should be entitled to the residue of the rents and profits; whether the heir of the mother's father, or the heir of the mother's mother. Here the court looked beyond the will to the testator's title to the property devised, and finding it to be derived through the mother's mother, decreed it to go the heirs of the testator on the part of his mother's mother.

This will perhaps appear, when properly considered, a stronger case than that of Masters and Masters; for although the extraneous matter was not introduced to explain an ambiguity patent, since in the words of the will there was no ambiguity at all; yet it was certainly resorted to by Lord Macclesfield, to annex a meaning to words beyond their legal effect;

2 P. Wms. 135.

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