Imatges de pàgina
PDF
EPUB

the "right heirs of the mother's side," being a description properly applicable, in the first place, to the heir of the mother's father; nevertheless, as we have seen, the court gave the estate to the heir of the mother's mother, in deference to the argument drawn from the manner in which the estate had in fact devolved to the testator. And it is to be further noted, that in this case the Chancellor did not look out of the will to the title to the property (13) for the sake of deciding the judgment already inclined the same way by the context of the instrument, for it does not seem that the will afforded any internal evidence.

But the want of this internal evidence in the will itself, to justify the resort in the last-mentioned case to the external facts, makes the propriety of that decision at least questionable, if we regard the authorities on this head; and, perhaps, the consistency of legal principles was better consulted by the firmness of the decision of Lord Talbot, in the case of Brown v. Selwyn ", which was shortly as follows: John Brown made his will, and after several dispositions of real and personal property, devised as follows: "And as to the rest, residue, and remainder of my estate, whether real or personal, whereof. I am seised or possessed, or which I am any ways en

Cas. Temp. Lord Talbot, 240.; and see 4 Bro. P. C. 179.

(13) There are numerous cases where the descriptive force of words have been decided by reference to the circumstances of the property; as where words inapplicable in their proper sense to leaseholds or copyholds, have been held to include them out of regard to the actual situation of the testator's property. See these eases, ante, Vol. I. ch. 4.

titled to, I give and bequeath the same, and every part thereof, and all my right, title, and interest therein and thereto, unto such my executor or executors hereinafter named, as shall duly take on him or them the execution of this my will, his or their heirs, executors, administrators, and assigns, as tenants in common, and not as joint-tenants." And the testator afterwards appointed the plaintiff and defendant his executors, and died, and the plaintiff and defendant both proved the will. The defendant was, at the time of the testator's death, indebted to him in 3000l. and for securing thereof, had given a bond to the testator (14). The prayer of the bill was, that the defendant might account with the plaintiff for the testator's residuary property, and pay to him a moiety of the said sum of 3000l. with interest, and the cross bill was brought up to have the bond delivered up to be cancelled. It appeared by the answer of the defendant in the original cause, and by the proofs (15), that the testator really designed to give this money

tor's making his debtor his

In equity a (14) In equity, a debt is not released by a creditor's making debt is not his debtor his executor; but at law it is otherwise; and if a crereleased by the credi- ditor makes his debtor and another his executors, the consequence at law is still the same; nor is this consequence varied by the fact of the debtor's administering, or not administering; the reason whereof is this, that the other cannot bring an action without joining him who refuses, and they cannot sue one of themselves for a personal thing. See this doctrine well treated of, in Plowd. Comm. 184. Woodward v. Lord Darcey.

executor.

(15) In courts of equity, these parol proofs are generally permitted to be read without prejudice. But at law, where the jury might, and probably would be, influenced, by the admission of such improper testimony, the production of it will not be allowed. See this distinction adverted to by Mr. Justice Powell, in Newton v. Preston, Prec. in Ch. 104.

to the defendant, and that he had actually instructed one Viner, the attorney who drew the will, to make this disposition accordingly; that Viner neglected to make mention of it in the will, insisting that the bond would be extinguished and released, of course, by Selwyn's being appointed executor; but that the testator appearing dissatisfied with Viner's opinion, a case was laid before counsel, who confirmed what Viner had said, relying upon which, the testator signed and published his will, with a full persuasion that the bond would be extinguished; and this appeared clearly to have been the intention of the tes

tator.

It was impossible for parol evidence to be more decisive than that which was offered in this case, if it could have been received; but it is equally plain, that if the will were considered without the parol evidence, and the general devising words giving all the real and personal property, not before disposed of, to the residuary legatees, were only attended to, that this debt was included in the bequest, as falling under the description of personal estate. The Chancellor, although he declared it to be his private opinion that the debt was intended to be released to the executor, by whom it was owing, thought himself not at liberty to yield to the parol evidence, and to make a construction against the plain words of the will.

Although the case of Brown v. Selwyn, is not easily reconcileable with that of Harris v. the Bishop of London, yet it is not opposed to the doctrine of the admissibility of parol and extrinsic evidence, to decide the judgment already strongly inclined by

the context and external evidence of the instrument.

We may safely say that there is no rule which stands on a surer principle than this-that parol evidence is never to be admitted where there is no ambiguity to call for explanation, and where the will may operate according to the words without any such foreign help. If, on the other hand, there is no subject on which the words in their ordinary and received sense can operate, extrinsic evidence may be called in. But an intention in the testator beyond the natural meaning of the expressions used, is never to be gratuitously inferred. Thus in a late case in the Common Pleas, where there was an estate sufficient to satisfy the devise according to the proper meaning of the description of the premises, collateral evidence was held not admissible to shew that the testator meant to use the description in a more extensive sense. In that case the devise was of "all my estate of Ashton." The testator had an estate from the mother's side, and also a paternal estate. His maternal estate comprehended a manor, capital farm, and lands in the parish of Ashton, as well as several other estates, some in an adjoining parish, and some in parishes at the distance of ten or fifteen miles from Ashton. It was attempted to be shewn that the testator was always accustomed to call his maternal property his Ashton estate,' to raise the inference that he intended to devise the whole of his maternal estate by the name of his 'estate of Ashton;' but the court refused the evidence".

Doe d. Sir Arthur Chichester, Bart. v. Oxenden, 3 Tauut. 147.

1

SECTION V.

Rules of construction not to be opposed by extrinsic evidence.

UPON the whole, the distinction, according to Lord Thurlow, seems to be this: that all sorts of evidence are admissible, with different degrees of weight and value, to rebut presumptions of equity (1), and even that constructive operation of an instrument which is referrible to presumption; but that where the question arises upon the construction of words, qua words, no extrinsic evidence can be admitted; still less can it be received to controul a technical rule of verbal construction (2).

There are some equities arising upon written instruments, the strict and technical nature of which

Some equit too strict

able rules

to depend

seems to place them clearly out of the reach of parol upon evi

dence of intention.

(1) It has long been fully settled, that parol evidence is admissible to rebut a resulting use, Lord Altham v. the Earl of Anglesea, 2 Salk. 676. see also Roe, lessee of Roach . Popham and others, Dougl. 2.

(2) When certain words have received a certain technical construction, we must abide by the decisions in construing such words, otherwise we shall be removing land-marks, by Kenyon C. J. and Lawrence, J. 6 T. R. 354.

[blocks in formation]
« AnteriorContinua »