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HAZARD'S

REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

EDITED BY SAMUEL HAZARD.

VOL. XV.--NO. 4.

PHILADELPHIA, JANUARY 24, 1835.

LAW CASE-BRINTON'S WILL.
Lee of Warner

vs.

Brinton.

Charge of the Court.

No. 368.

before, the decree of the Registers Court concludes them in no matter either of law or fact, whether it relates to the sanity of the testator, the execution proof or construction of the paper. 3 Rawle 20, 4, S & R 193, 12 S & R 283, 10, S & R 84. It is only in virtue of the act of Assembly, that the proceedings of the Register, DELIVERED BY JUDGE BALDWIN. or the Register's Court can be admitted in evidence, Edward Brinton in his life time. was seized of a tract neither the copy or probate of a will are evidence of a of land in Birmingham Township, Chester county, devise of lands at common law 5 S & R 213, 3 Wash. lying on the South side of the Kennett road, on which 582, 3, 10 Wh. 465, 70, 201, 4, and however regular he resided, containing by estimation eighty acres; he and full the probate may be, it is only prima facie evidied leaving one son, the defendant, and eight daugh-dence; its effect is destroyed it on the face of it, the ters of whom the wife of the lessor of the Plaintiff is will appears to have been unduly admitted to record, one. Six of the other daughters with their husbands or it appears by extrinsic evidence 5 S & R 215,1 Wash have conveyed their shares to him, so that he is invest- 302,1346. This may be done by proof of the incompeed with the title to seven-ninth parts of this land, if tency of the witnesses, defect in their evidence to Edward Brinton had not disposed of it in his life time by establish the necessary facts, or by showing that in his will duly executed, so as to pass the land to the de-point of law the proof before the Register was insuffifendant, and will be in such case entitled to your ver- cient to establish the paper admitted to probate as the dict. On the other hand, if Edward Brinton did devise last will and testament of the testator .1 Yeates 87, 90.. this land to his son James, your verdict must be for the 4 Yeates 413. In order to show the legal insufficiency of defendant-the whole case therefore turns on the single the proof on which the Registers Court acted in the question of whether he made a valid testamentary dis-present case, the Plaintiff has given in evidence the position of this property, by which the descent to all whole proceedings before the Register and in the Rehis children as directed by the act of assembly in case gisters Court, which were the foundation of their de of his dying without a will, will be interrupted in favor cree, admitting the paper in question to probate, as of his son. part of the will of Mr. Brinton. It was necessary for them to do this, in order to make their objections to its establishment as a will, for otherwise the certificate of probate under the seal of the Court, would have been open to the allegation, that it was made on due and legal evidence; and as the copy and probate were evidence without inquiring on what ground the Court acted, the Plaintiff would have been much embarrassed without resorting to the testimony referred to in their minutes. By inspecting them it now appears, that the only proof of the devise of this land to the defendant is contained in the minutes of the evidence of James Gibbons, of William and Amos Brinton, and a deposition or statement of James Gibbons which was read in the Registers Court, but is now lost and no copy or evidence of its contents produced, and the instructions themselves. These minutes are as follow. Vide minutes and instructions.

It is not pretended that Edward Brinton died without any will, it is admitted that the paper executed on the 7th August, 1806, is a valid will, duly executed and proved according to law to pass real estate, but by this will he only disposes of the property, in question during the widowhood of his wife, saying nothing to whom it should go after her marriage or death. Unless therefore he has disposed of the remainder in fee, by some other paper duly authenticated to pass lands, or which can be transferred to, and be made a part of his last will and testament, the law considers him as dying intestate as to this land, as if he had made no will at all.

The act of Assembly requires that all wills concern ing real estate shall be in writing and be proved by two witnesses. You will then consider a will to be the written declaration of a man of his intention as to what shall become of his property after his death-proved by two witnesses. The evidence in the case is before us There is no doubt that the Plaintiff had a right to in the transcript of the proceedings of the Registers refer to these minutes, to show the foundation of the Court of Chester county. (Vide the copy of the will decree of the Registers Court, but we entertain strong and certificate of probate,) and the petition to the leg- doubts whether they are competent evidence on an islature. This is legal and competent evidence to es- ejectment to try the title to the land; they relate extablish the paper set up as a will in the absence of any clusively to a matter wholly unconnected with the peropposing testimony. None has been offered in oppo-sonal estate, or the administration of the will, and it sition to the executed will, you will therefore take that so far as it goes, as the established will of Edward Brinton, agreed to by both parties now, and never intended to be contested by any of the family.

As to the paper of instructions, or the rough draft of the will, drawn up by Mr. Gibbons, which is copied into the certificate of probate, you will take it only as prima facie or presumptive evidence of its being any part of the wili of Edward Brinton, open to be contradicted or disproved by any testimony competent to show, either that he did not make it his will in fact, or that it is not in law his will. The other children are as fully at liberty to contest the paper after probate as VOL. XV. 7

might have been a serious question whether the evidence was admissible, had the objection been made.Vide 4 Wash. 187, 6 Cr. 219, 7 Cr. 271, 3 412, 6 Wh. 113, 2 Yeates 341, 2 Binney 511, 3 Rawle 20, 4 Yeates 413, 4 S & R 193, 10, S & R 84, 12 S & R 283, 4, 2 Rawle 178, 4 Wh. 220, 10 Wh. 201, 4, 465, 70, 5 S & R 214, 15, Wash. 187, 8. But as the counsel on both sides have considered it properly before us, and have rested the case of their respective clients on its legal sufficiency, to establish this clause in the instructions or rough draft of the will as a devise of the land in question, the Court will consider it in this aspect alone. Taking the testimony as it is reduced to writing with all

Jegal inferences which a jury can legally draw from it, s true to the full extent, and connecting it with the only other evidence in the cause, the petition to the Le gislature, we proceed to inquire whether Edward Brinton did devise this land to the defendant.

The acts of Assembly of Pennsylvania have directed that the estate of a person undisposed of by will, shall descend to and be enjoyed equally by all his children; of the natural justice of this provision and its perfect congeniality with the genius and spirit of all the institutions of the state and country, no man can doubt.

to dispose of his property in some definite manner. The requisites are few and simple, every man however unlettered has the means of making his will by expressing his intention in writing and the writing proved by two witnesses, he has only to thus point out the thing he gives, the person to whom it is given, and the law effectuates his intention by declaring such paper to be his last will and testament.

For all the purposes of this case the facts as stated are admitted to be proved, and the only question which remains is their sufficiency in law to make out the issue on the part of the defendant. This is a question of law Has Edward Brinton done so as to this tract of land? which the law must decide, 8 Co. 155, a. It is an if he has the defendant is entitled to it, if not we cannot universal rule of property that it must descend and be make a will for him, the question is whether this paper enjoyed according to the course which the law has pre- is his will. In cases of this kind very interesting ques scribed, unless the owner has made some other dispositions often arise as to the kind of evidence, which is adtion of it which the law recognises as valid and binding missible to prove the various facts on which the validity 3 Rawłe, 20. of wills depend, those which have been made in this case are highly so, they have been argued on both sides with great ability and learning, and deserve yours and our most serious cousideration. We do not know how much property may depend on the final settlement of the principles involved, and questions arising on this case, and cannot proceed with too much deliberation; we cannot settle the law; our opinion is subject to the revision of a higher tribunal which will correct our errors, but cannot reach yours. In laying down the law to you it is not as one may think it ought to be, but as in our consciences and on our oaths we believe it to be settled by the legislature and courts of justice, as a rule from which we cannot depart. We shall do it plainly and without reserve, so that whether our judgment is affirmed or reversed; this case will eventually place some principles beyond further discussion, and those who will read it, be able to understand what is, and what is not a will. There is but one kind of evidence on which a paper can be established as the last will and testament of any man,—it must be in writing, and proved by two witnesses, to be the written declaration of the makers intention, to dispose of his property according to its directions. The disposing intention and the fact of disposition, must appear substantially on the face of the paper, there must be a devisor and a devisee and a thing devised, when by a fair construction of the instrument, it contains the se three requisites, it is a will however informal if duly proved-if either are wanting it is no will.

It was a rule of the common law founded in the wisdom of ages, and adopted by our ancestors, that the heir at law should not be disinherited unless by the plain words or necessary implication from the will of his ancestor, and this rule is assumed as a sacred land mark of property in all countries where the law of the land is respected, as the guardian of the rights of the people. It is never departed from in that country from which we derive our best rules of jurisprudence, in which the oldest son is the sole heir to all his fathers lands; surely it ought not be less respected here, where there is no odious law of primogeniture, and equality of right between the sexes has been established from the first settlement of the province in conformity with the policy of its founder.

This law leaves every man at liberty to do with his property as he pleases-his will is the supreme law, and when it speaks it must be obeyed-it is only when he makes no will or none which disposes of any particular part of his estate, that the law makes a will for him, and does that which he omits to do for himself by declaring to whom it shall go if he leaves behind him no directions testifying his intention in writing and so attested as to afford authentic evidence of his will as a muniment of title to the favored object of his bounty.

There is no rule more reasonable, than that which imposes on those who wish to divert the property of a deceased person from the established course of succession, the necessity of doing it by legal and satisfactory proof; nor is there any subject on which a regard to the peace of society and the security of property makes it more incumbent on juries and courts to adhere to fixed and settled rules than in cases of wills. They are the title deeds to a vast proportion of the property held by our citizens, and unless they are regulated by steady and well established principles, we lay a train of gunpowder under the possessions of purchasers. If a paper is established as a will, upon other than legal proof with any view to avoid a supposed hardship in a particular case, the consequences are interminable. If a paper defective in law to pass an estate should be permitted to disturb the succession established by the act of assembly, we must give effect to one the object of which was to revoke a former will, and thus in the zeal to make wills where a deceased person had made none, we should destroy those which had been most solemnly executed. For it must not be forgotten, that the same evidence which will take an estate from an heir at law, will take one from a devisee under a will, which generally speak ing is made and recorded by the same acts, and they have the same effect for both purposes.

In the will executed by Mr. Brinton and witnessed by the subscribing witnesses, there is no devise of the remainder of this land, if there is any, it is by the instructions or rough draft written by Gibbons, but it is admitted that these were superseded in every thing but the one paragraph by the executed will.

We must then be satisfied that this clause of the rough draft was legally intended to remain as his will, while all the rest was supplied. The law requires that the will should be in writing, and proved by two witnesses, but it need not be signed by the testator 6 S & R 454, or be formally declared to be his will 1 S & R 263, 5, nor attested by subscribing witnesses, though it must be proved by two 2 Dall. 286, 6 S &R 47, 223, 484, 16, S & R 84, 1 Wash. 302, 346, it need not be written by the testator, if done by his desire or consent by another and he adopts it, and that is proved by two witnesses it is sufficient, 1 Yeates 91, 1 S & R 263, 6 S & R 454, or if usual act of execution subjoined though without suba paper containing "the substance of a will with the scribing witnesses or proof of publication, if found in his possession, that is prima facie evidence of its adoption as a testamentary act.' titute of every formal act of authentication, the preBut if the paper is dessumption is adverse in the absence of proof of actual publication or any other act of recognition equally satisfactory. The omission to perfect an instrument which carries with it intrinsic evidence of a design to superThe law is very liberal in favor of last wills, it makes add an act of authentication which the decedent has not great allowance for infirmities of body and mind, been prevented from executing by sudden death, is dispenses with all forms and requires no solemnlties referred to a change of intention. Scraps of paper notes which are not absolutely indispensable in point of sub- or memoranda or indorsements on bonds though intendstance, to show the deliberate intention of the makered to denote a testamentary disposition must contain at

least the substance of a devise. 3 Rawle, 20, 1, 4, S & R 557.

The testator may intend to correct the paper, he may give the rough notes or instructions to a scrivener to make a formal draft of a will, yet these will not invalidate it as a will, if he dies before the formal draft is executed or read over to him for his approbation, if the original instructions are duly proved they will control it when they differ. 3 Yeates 511, 14, and positive proof by one witness and circumstances equal to such proof by another are sufficient. 16 S & R 84. 5, but the paper must contain sufficient intrinsic evidence of a tes tamentary disposition, and be intended to be his last act in disposing of his property after his death.

which would destroy every thing like stability of de-
cision and leave titles depending on intention to the de.
cision of chance and the sport of opinion," p. 13, 2
Rawle 32. 10 wh. 228, We also laid it down as a
settled rule, that the intention of a testator must be col.
lected from the words of the will, that no averment
ought to be taken out of the will which cannot be so
collected from the whole will applied to the subject
matter to which it relates p. 14, 3, Co. 28. 6,3 Atk. 258,
4 Co. 48, 5, Co. 68,b. Latch 137, Harg. L. 'T. 495, 6,
1 Bro. Ch. 216, 3 Binney 148, 61, and that the parol
declaration of the testator as to who should be his heir
was of no effect in law, p. 18, Pl. 345 b.

There are however cases in which parol evidence This then is the important question in this case, was will be admitted to show or explain the written intenthis devise in the instructions devising the homestead to tion of a testator in cases of what are termed latent amJames, intended by the testator to be his last will as to biguities, or doubts which are thus defined by Lord this part of his estate; that it was so in fact we have no Bacon. "There be two sorts of ambiguities by words, doubt, but this does not suffice to make it operative as Patens is that which appears to be ambiguous on the a will under the act of Assembly. That intention must face of the instrument. Latens is that which seemeth not only have existed in fact, but be now so proved as certain and without ambiguity for any thing that apto enable the court to carry it into effect according to peareth upon the deed or instrument, but there is some the law. As at present advised, we should not doubt collateral matter out of the deed that breedeth the amthat if the testator had died without an opportunity of biguity Bacon L. Tracts 99, 1 Mar. 11, Hob. 32 4 Dow. putting the rough draft into form by executing a will, P. C. 93. Ambiguitas patens, is never holpen by these instructions would have been considered as his averment, and the reason is, because the law will not testamentary disposition of his property, but in the couple and mingle matter of specialty, which is of the event which has happened a very different case is pre-higher account, with matter of averment which is of sented.

inferior account in law, for that were to make all deeds He makes a formal will, executes it in all legal form hollow and subject to averment and so in effect, that to and solemnity, it is attested and proved by three sub-pass without deed which the law appointeth shall not scribing wtnesses and published as such in their presence pass but by deed Bac. 99. Vide 4, Cr. 224, 234, 8 Co. it expressly revokes all former wills by him before made 155. declares this and no other to be his last will and testament. Such a will would have vevoked the most solemnly executed will, which he had made before and it must have the same effect as to all other papers of a testamentary nature; the important question then arises, can this clause in the rough draft be now established as his will, in relation to the property in controversy, on the evidence before us.

If it has any effect in law, it must be to make another will besides the one he has thus executed when he has solemnly declared that no other will shall be his will though before made by him; to confirm and rat fy what he has annulled, by setting up a revoked paper, and virtually expunging the revoking clause from the executed will. The evidence must go farther than enabling us to get rid of the revocation, it must authorise us to add the revoked paper to the will, so as to make it a part of it in the same manner as if it had been introduced into it by the testator himself.

"Ambiguity of words by matter within the deed and not out of the deed shall be holpen by construction, or in some cases by election, but never by an averment, but rather make the deed void for uncertainty 8 Co. 155 a. As if a man give land to J. D. and J. S and heirs and do not limit to whether of their heirs," or give land in tail, the remainder in tail with a proviso, that if he or they or any of them do any, &c. it cannot be averred on this clause, that the restraint was only on him in the remainder and the heirs of his body and that the tenant in tail in possession was meant to be at large, Bac.99.

"When the uncertainty cannot be helped by construction or intention it shall be holpen by election," as if I grant ten acres of wood in salewhere I have an hundred acres; whether I say in my deed or not that I grant out of my 100 acres, yet here shall be an election in the grantee, which 10 he will take and the reason is pla in, for where the thing is only nominated by quantity, the presumption of the law is that the parties had indifferent intention, which should be taken Bac. 100, 21, C. L. 290, 8 Co. 155, Hob. 32.

On a careful examination of the evidence, we find none which goes to show any act or declaration of the testator in relation to the disposition of his property "But if the ambiguity is latent as if I grant my manor subsequent to the execution of his will, what precedes of S. to I. F. and I have two manors North S and South the execution, can have no bearing on the revoking S this ambiguity is matter of fact and shall be holpen by clause, for a revoked will must be republished before it averment, whether of them it was that the party incan have life or effect. 4 S & R 296. 7. The testator tended should pass. But if the deed recites whereas I has declared the executed will to be his only and last am seised of the manor of North S. and South S. and I will and testament, so we must adjudge it unless the lease you one inanor of S there is clearly an election, so law will permit us to alter explain or construe, it by evi- if the recital is of two tenements in D. and one is leas dence aliunde, as a case of ambiguity either 1. An ambi-ed, these cases are where one name and appellation guity or doubt on the face of or in the body of the will, 2. That which arises on matter not in the will but out of it, when the words are clear, 3. That which is intermediate, partaking of the character of patent and latent ambiguity Bacon L. Crats 99, 100 3 Mason 9, 12, or 4. That which arises from a mistake of the testator or his omission to express himself intelligibly without explanation by averment or collateral proof.

In the case of Packer vs. Nixon we expressed our entire concurrence with the declaration made by the present Chief Justice of the Supreme Court of this State,that Any settled rule which leads to a determinate effect (in comparison with which the fulfilment of any particuLar intent is of secondary value) is preferable to a process

denominates divers things.

"There is another class of cases where the same thing is called by divers names, which shall be holpen by averment, because there is no ambiguity in the words, the variance is matter of fact, but the averment shall not be of intention, because it doth stand with the words, for in the case of equivocation the general intent includes both the special and therefore stands with the records. Bac. 101, 1 Mas 11, 12, 5, Wh. 336, 7, S. P.

"As if I give lands to Christs' Church in Oxford, and the name of the corporation is C. C. in the University of O., this shall be holpen by averment because there is no ambiguity in the words." Bac. 1C1 Hob. 32

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These are the illustrations of the maxim, "Ambigui- tions were admitted to show that testator had directed tas verborum verificatione suppletur, nam quod ex facto the legacy to be given to his wife, and that her name oritur ambiguum verificatione facti, tollitur, by a was omitted by mistake of tl e Scrivener, 1 Cond E. R, great jurist in ancient times confrmably to which 444. 55. Here the will pointed out the ambiguity, and are those which have since received the highest on its face necessarily referred to an explanation of the judicial sanction. When a latent ambiguity is pro-intention as to the meaning of the word "her," it was duced in the only way in which it can be produced, a case of an ambiguity helped by the reference in the that is by parol evidence, it must be dissolved in the will itself. So where the executed will was, "I give same way, and there is no case for admitting it to show £60,000 in legacies," which were enumerated to the the intention upon a patent ambiguity on the face of the amount of 51,000, it then gave "the residue 4000”— will. They are all cases of latent ambiguity and the making only 55,000 the draft of the will in testator's objection to supply the imperfections of a will are handwriting, at the bottom of which he had inserted the founded on the soundest rules of policy and law 2 Cr. date of the will and the names of the witnesses, was 29. It would be full of great inconvenience that none admitted to show the mistaken omission 2 Cond. E. R. should know by the written words of a will what con- 509. 12. struction to make or advise to give but that it should Here the mistake appeared on the face of the will, be controlled by collateral averments out of the will and was helped by reference. So where the 20th sheet and if they are admitted how can there be any certain of a will was missing, and it appeared from the 19th ty, a will may be any thing, every thing, nothing. 1 J. and 21st pages, that the missing sheet was necessary to C. 234, 6 Conn 275. The statute appointed the will to connect them as a component part of the will, that its be in writing to make a certainty, and shall we admit omission was unintentional, and that it had been detachcollateral averments and proofs and make it utterly un-ed by accident-it was supplied by proof of instructions certain, the witnesses and not the testator would make and other evidence, 2 Cond. E. R. 506. 21. C. L. the will. 1 Mod. 210, 3 P. W. 354. 294. S. C.

refer to the existing will of 1800, and bad by mistake, were admitted to show, that the testator intended to referred to the cancelled one of 1798, 1 Cond. E. R.

"If the effect of the introduction of the evidence be a codicil to the will of 1798, which had been de So where a paper was executed in 1802, declared to would be to add new matter to the will, either the sub-stroyed and a new one executed in 1800; these facts ject of the devise, or the name of a devisee, it would also authorise the striking out, of what was contained in an executed will, and thus though the will was made in form by the testator in his life time, it would be really made by the attorney after his death and all the guards of the law be utterly swept away." 21, C. L. 288, 92.

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As to instructions for making a will the established rules are.

To establish

That where they are subscribed as preparatory to a will, the execution of the will supersedes them, and where they differ the presumption is that the testator adopted the alteration. 21, C. L. 292. any paper as a testamentary one, the court must be satisfied that the testator intended it to be a part of his will, and if there is more than one paper set up as a will, it must be shown that they were intended to be cumulative. Cond. Eccl. R. 452, ib. 30, 63.

If an unfinished draft is propounded as a will, it must appear that the deceased was prevented from executing it by invincible necessity or the act of God. 1 Cond. E. R. 30, 1, 63, S. P 3 Rawle 20, 1.

445. 52.

So where a will was endorsed "plan of a will,” and so headed, but was otherwise perfect and complete, evidence was admitted to show whether it was intended to be a will, or was only authenticated as instructions, 1 Cond E. R. 452. being consistent with the words of the will.

So where a deed in trust for A and B was indefinite as to the parts they should take, a deed from the trustee defining their shares, and other evidence was admitted to show, that it was according to the intention of the parties who intended that both instruments should operate as one deed, 17 S. and R. 110. both being executed at the same time.

of real and personal property.
In this respect there is no distinction between devises
In a leading case, the
testator devised his estate to his executors, one of

whom owed him by bond £3000, evidence was offered
to show that he instructed the scrivener in writing to
sert it in the will, insisting that making him executor
give the money to the executor, but he refused to in-
would release the debt; that the testator took counsel
on it, who gave the same opinion, in confidence of
which the testator executed the will without the de-
vise: the evidence was not received, and the debtor
executor was decreed to pay his co-executor one half
of the bond. Talb. 240. 1. On an appeal to the House
of Lords, they refused to hear the evidence read, and
affirmed the decree, 4. B. P. C. 18Ổ. 4. The authority
of this case remains unquestioned, and it has been ex.
pressly adopted in this state. 2 Yeates 304. 7 S. and
R. 114. 1 J. C. 235.

If he omits to transfer a provision from the draft to the will, it cannot be supplied by parol evidence in connection with the draft, whatever may be the opinion of the court as to the actual intention or hardship of the case, though when the mistake was pointed out to the téstator he proposed to insert the omitted legacies in the formal will, but as he did not do it, the Court could not supply the defect. 1 Cond, E. R. 63, 4. When an instrument is executed by a competent person he is presumed to know its contents and effect, and intend to give it the effect which follows from its contents and construction. 3 Cond. E. R. 290, 4, Cond. E. R. 209. Subsequent instructions intended for a new will, duly proved may be a codicillary paper, and operate as a revocation pro tanto of a former executed will. 1dence, 2 Vern. 98. Cond. E. R. 267, 9, 70, 3 Rawle 20.

It matters not how clear and full the instructions may be, or that they are signed by the testator and in the body of them declared to be a will, if the executed will contains no reference to them, and is on its face clear of ambiguity, as to the subject matter,3 Cond. R. 290. 4 Cond. E. R. 209. 2 V. & B. 318. 6. Conn. 276. 4 Dess. 215.

Instructions to a scrivener cannot be given in evi He cannot be allowed to prove that he used a word, with a meaning different from its import of the true meaning of which he was ignorant. 7 S. & R. 113. 114.

In some cases instructions may be given in evidence when the executed will is ambiguous on the face of it, as to the person devisee-as a bequest to "her." The A mistake in drafting a will does not make it void, question was to whom the reference was the instruc- | 8 Conn, 265. And when a testator declares a paper to

be his will, the Court must take it as it is written. 1 Cond. E.R. 452. 5. 6. Conn. 274. 5. Mistakes are not to be supposed, if any construction that is agreeable to reason can be found out-the will that is in writing must pass the land, and must be decided by what is contained in it, 1 Atk. 415.

testator is supposed to have omitted, or to add words which he has not used, 21 C. L. 291. 3 D. & E. 87. or where the will is silent, to apply it to a new subject matter of devise or new devisee, as to prove that the word " Gloucester" was omitted by mistake, so as to make the lands in that county pass by the will, though The written declarations of a testator made after the not referred to. 21 C. L. 292. 4. Newberg vs. Newwill are not evidence,5 Bing 435. 15 C.L. 490. 8 Connburgh, in Dom. Proc cited but is admissible where a 264. unless the paper may be proved as a codicillary, description of the subject matter is imperfect; so of the 1 Cond. E. C. 267. 70. or a testamentary one, 6 V. 397. devisee-or where the description is true in part but 4 Dow. P. C. 89. not in every part, if there is a sufficient indication on the face of the will to justify the application of the evidence. 21 C. L. 294.

A paper may be a will as to personal, though not as to real property, here and in England; the statute of wills of 34 and 35 Henry VIII. requires only that wills should be in writing, and the statute of frauds and perjuries requires subscribing witnesses only to wills devising

real estate.

Instructions may be read to prove that testator knew he had particular relations-but no farther to prove what he meant by the words "poor relations," 1 V. 231.2.

On a question whether the devise to the wife was in lieu of dower, a rough draft of the will in testator's hand writing, containing the devise and the words "in lieu of dower," which was omitted by the mistake of the scrivener-was not admitted. 2 Yeates 304.

If there is in any part of the will a sufficient description, it shall not be vitiated by any mistaken descripR. 217. 1 M. & S. 301. Vide Bacon, L. T. 102, &c. tion or circumstance for "utile per inutile non vitiatur." Reg. 25. Or if it can be collected from the words of the will, that the description of two estates has been transposed by mistake-the local description may be rejected as surplusage for "falsa demonstratio non mut," where enough appears after the false description is rejected. 21 C. L. 291. 4.

"An averment to take away surplusage is good, but not to increase that which is defective in the will of the testator. Godb. 131. Hob. 32. In deciding on the adCourt will look to the situation of the testator's family mission of evidence, and the construction of wills, the when it was made. 3 Dow. P. C. 68. 2 V. 217.1 Wash. Va. 56. 5. and of the property he owned, in order he intended to give by construing the words consistentto ascertain to whom he intended to give it, and what

The rule deducible from these cases, is, that instructions are in no case admissible to control or contradict the plain words of a will, or to supply an omission, unless there is something on the face of the executed will, which shows a mistake or omission by pointing or referring to something which the instructions will explain. When there is such a reference, whether they with the state of his property and family, but not to introduce new words into the will. 21 C. L. 288 94. ambiguity is latent or patent, it may be removed by the Or to strike out those it contains, As a devise of all my instructions or other matter referred to or point-lands in the Parish of C. called Hoplands, to my son J. ed out, the thing referred to being considered as con- If he dies without issue, Hoplands shall remain to B.nected with the will by the reference, so as to bring the case within the rule, "id certum est quod certum reddi Hoplands was an entire farm extending into two parishes, but that part only passed which was in C. Cro. potest." Jac. 22. 3.

But when the will is ambiguous in its words, and contains no reference to any thing which can make it certain, or on its face admits of no construction, it is void. 1I. C. 255. 56. 86. 3 Atk. 258. 3 S. & R. 607. 7 S. R. 114, 8 Co. 155.

As to parol or extrinsic evidence the rules are well

settled.

It is not admissible to fill up a blank, 2 Atk. 239. 3 B. C. 311. 13. 21. C. L. 291. 3. or the omission of a devisee, 3 Atk. 257. nor to supply the written words of a will, it must be construed ex visceribus suis, 1 Yeates, 432. 2 Yeates, 304. nor to explain it unless it refers to something dehors of so ambiguous a nature as to require explanation, not of a doubt in the will, but a doubt on a matter out of the will, 7 S. & R. 113. 14. 1 I. C. 234. not in its construction but its factum, 3 Cond. E. R. 290. 4. Cond. E. R. 209. 21 C.L. 291.

When there is no description of the devisee or thing devised, it is not admissible, nor where the thing devised, is well described or defined in terms or by reference, in order to embrace what is not so described. As a devise of " my money," evidence will not be admitted to show that the testator intended to give bonds, notes, and mortgages, 1 I. C. 231. 4. 14 I. R. 9. 14. so of a devise of my farm in the occupation of A. an aver. ment that he intended to pass land in the occupation of B. cannot be admitted, 11 J. R. 212. 20. 14 C. L. 291. Godb. 16.

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If the devise has a certain effect and operation to pass lands at the place described, it shall not be extended by extrinsic evidence to embrace lands elsewhere, unless the intention can be collected from the will itself, 21 C. L. 290

A new description cannot be introduced into the body of the will, and no estate can pass that does not answer the description it contains, nor can evidence be received which amounts to a new devise, which the

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So a devise of my lands of Ashton, or at Ashton, (which mean the same thing,) other lands not situate there, will not pass by any evidence aliunde. Dow. P. C. 65. 87. 91. The same rule was adopted on a devise of his freehold and real estates, in the city of Limerick, and county of Limerick." The testator had but had estates in the county of Clare, yet evidence of a small estate in the city, but none in the county of L. his intention was not admissible, to show that he intended to give the estates in the county of C. 21 C. L. 28. 9. 8 Bingham 244.

"The Court cannot do for a testator what he has not done for himself." 1 Mas. 11. 12. "Or make a will for him while he sleeps in his grave," 6 Conn. 174. and they cannot receive evidence of his declarations before of after the making of the will. 2 Vern. 99. Conn. 264. 4 Wash. 265. 4 Dess. 215, &c. 4 Gall.172. 1 Pet. C. C. 87. 8 Wh. 211.

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Courts of law have always been jealous of admitting extrinsic evidence to explain the intention of the testator, and it is admitted only where an ambiguity is introduced by extrinsic circumstances, 4 Dow. P. C. 93. or in that class of intermediate cases, referred to by Lord Bacon and Judge Story, which partake both of the character of latent and patent ambiguity; as where the words are clear, but admit of two constructions, consistently with the meaning. Bacon L. T. 100. 1 Mas. 12. 5 Wb. 336. 7. S. P. 2. V. 217.

The admission of the evidence in such cases, is to give effect to the will, by removing the ambiguity, 4 Dow. P. C. 93. and is of such a nature as stands well with the words of the will. 8 Co. 155. a.

It is admitted where there are two persons of the same name, to show which was intended. 2 Atk 373.5. and 686. 2 Dall. 70. 72. 8 Co. 155. 1 Wash. Va. 55.

Where there is a mistake in the christian or surname

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