evidence to prove intention is admissible, are those in which the description in the will is unambiguous in its application to each of several subjects.

[Mildmay the evidence was received, only for the purpose stated by the Master of the Rolls in his judgment, and not, as it has been erroneously supposed, for the purpose of showing that the testator, when he used the erroneous description of 4 per cent. stock, meant to bequeath the Long Annuities which he had purchased with the produce of the 4 per cent. stock; and that the result of the cause was, not to substitute another specific subject in the place of a specific legacy which the will purported to bequeath;-not to substitute the Long Annuities, which the testator had and did not purport to give, for the 4 per cent. Bank Annuities, which he had not and did purport to give. The absence of the fund purported to be given, showing that a specific legacy was not intended, other evidence was admitted to show how the mistake arose; and this being clearly shown, it was held, that the legatees were entitled to payment out of the general personal estate; and the decree declared, that the legatees were entitled to be paid their legacies to the amount of the Bank 4 per cent. Annuities purported to be given, and that such legacies were to be valued according to the market price the Bank 4 per cent. Annuities bore on the day of the testator's death. This was the principle of the decree; but on the allegation that the estate was not sufficient to pay the legacies in full, provision was made for their abatement and for payment of certain debts; and it was ordered that the Long Annuities should be sold, and the proceeds applied as was directed.

"The circumstances of Selwood v. Mildmay are very like those of the case now under consideration; and I think that, if that authority has not been overruled, I ought to be governed by it.

"The cases of Miller v. Travers (supra, pl. 181), and Hiscocks v. Hiscocks (supra, pl. 183), were cited, for the purpose of showing that Selwood v. Mildmay has been overruled. In the former (Miller v. Travers), the testator devised all his freehold and real estates in the county of Limerick and in the city of Limerick to trustees and their heirs. He had no real estate in the county of Limerick, but a small real estate in the city of Limerick, and considerable estates in the county of Clare. It was held, that parol evidence was not admissible, to show that the testator's intention was, that his

195. The reader need scarcely be reminded, that, consistently with the conclusion which confines the admissibility of evidence to prove intention to this class

[real estates in the county of Clare should pass. In the judgment, the case of Selwood v. Mildmay is mentioned, as if it had been held, that the Long Annuities which had been purchased with the 4 per cent. stock should pass, rather than that the will should be altogether inoperative, which appears to have been a mistake. The false description was rejected, and the legacies, as I have stated, were held to be payable, not by a substitution of the Long Annuities, but out of the general personal estate, of which the Long Annuities were part. No evidence was admitted for the purpose of showing, that the testator meant specifically to bequeath the Long Annuities, when he used the description of 4 per cent stock. The case of Miller v. Travers does not therefore appear to me to be inconsistent with Selwood v. Mildmay.

"In Hiscocks v. Hiscocks, the testator devised to his son John Hiscocks for life, remainder to John his eldest son for life, remainder over. At the date of the will, John Hiscocks, the son, the first devisee for life, had been twice married; he had one son, Simon, by his first wife, and by his second wife an eldest son, John. Evidence of the instructions given by the testator for his will, and declarations of his intentions, were not admitted to prove which of the two grandsons was meant. In this case, Selwood v. Mildmay is noticed as having been doubted in Miller v. Travers. The erroneous view of it which appears to have been taken is not noticed; and, when it is remarked that evidence of instructions for the will was received, it is not observed that it was only admitted as part of the evidence to show how the mistake was made, i. e. for the purpose of showing that the erroneous description was copied from a former will. Under these circumstances, I do not think that the case of Selwood v. Mildmay is overruled by the cases of Miller v. Travers and Hiscocks v. Hiscocks; and, considering myself to be bound by the authority, I shall make a similar decree, declaring that the several legatees are entitled to their several legacies, to the amount of £1000 Bank 3 per cent. Annuities; and that such legacies are to be valued according to the market price the 3 per cent. Bank Annuities bore on the day of the testatrix's death."

In the above case, there was nothing in the context from which

of cases, a testator's declarations may be admissible in other cases also. They will be so in those cases in which such declarations, according to the general rules of evidence, prove or tend to prove a material fact,

[it was apparent that the testatrix had used the words in which she assumed to describe the subject of her bequest, in any other than their strict and primary meaning. But the words so construed were insensible with reference to extrinsic circumstances, and the Court therefore properly directed an inquiry, with the view, if possible, of applying the words in some secondary sense.

Now, it may safely be conceded, that when the extrinsic circumstances of the case, as found by the Master, were once within the knowledge of the Court, there remained no moral doubt as to the intention of the testatrix, with respect to the disputed bequest. But that, surely, was not enough. "In expounding a will, the Court is to ascertain, not what the testator actually intended, as contradistinguished from what his words express, but, what is the meaning of the words he has used." (Per Parke, J., vide supra, pl. 9, note 1.) The office of extrinsic evidence, in cases of this nature, is not merely to enable the Court to form a plausible or probable conjecture as to what the testator may have intended by the words which he has employed; it is rather, to ascertain whether, when all the facts of the case are known, such words, however inexact and improper, do really, with sufficient legal certainty, apply to and describe the alleged object or subject-matter of the disposition. In this case it is submitted that they did not. The Court had to deal with a specific bequest of a non-existing chattel; and however embarrassing the reflection, that the testatrix must have meant something by her bequest, it seems clear that the words of her will, aided by a full knowledge of the circumstances under which it was written, were inadequate to convey that meaning to a Court of construction, through the strait and jealously-guarded avenues provided by the rules of evidence. It must be recollected that in all cases of actual mistake, as distinguished from those of mere falsa demonstratio, the Court has no means whatever of ascertaining what the testator would have done, had his attention been drawn to the fact. His motives and intentions, which were always secret, became at his death for ever undiscoverable; and the most plausible hypothesis as

collateral to the question of intention; which fact (within the scope of the Propositions stated in the preceding pages) would aid the mere exposition of the testator's words.

[to the manner in which he might have rectified his error, is at best mere matter of curiosity and conjecture.

Finally, upon this point the experience of Lord Langdale may be borne in mind. "I have known,” said his Lordship, "several cases in which testators have, on the face of their wills, made great gifts with nothing to answer them; and I have heard Lord Eldon say that the easiest method of practising a delusion on others is by the mode of framing a will." Quennell v. Turner, 13 Beav. 249.] 8 Supra, pl. 104.

[170]

OF LATENT AND PATENT AMBIGUITIES.

196. THE rule of law, an elucidation of which has been attempted in the preceding pages, is commonly expressed by Lord Bacon's well-known maxim (Regula 23), "Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur."

197. Upon this maxim, Lord Bacon observes :

"There be two sorts of ambiguities of words: the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain, and without ambiguity, for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.

Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, [171] and subject to averments, and so, in effect, that to pass without deed, which the law appointeth shall not pass but by deed.