§ 273. Revocation of wills. By the Statute of Frauds, the revocation of a will, by the direct act of the testator, must be proved by some subsequent will or codicil, inconsistent with the former or by some other writing, declaring the same, and signed in the presence of three witnesses, or by burning, tearing, cancelling, or obliterating the same by the testator, or in his presence and by his direction and consent. It is observable that this part of the statute only requires that the instrument of revocation, if not a will or codicil, be signed by the testator in presence of the witnesses, but it does not, as in the execution of a will, require that the witnesses should sign in his presence. In regard to the other acts of revocation here mentioned, they operate by one common principle; namely, the intent of the testator. Revocation is an act of the mind, demonstrated by some outward and visible sign or symbol of revocation; 2 and the words of the statute are satisfied by any act of spoliation, reprobation, or destruction, deliberately done upon the instrument, animo revocandi.3 The declarations of the testator, accompanying the act, are of course admissible in evidence as explanatory of his intention. Accordingly, where the testator rumpled up his will and threw it into the fire with intent to destroy it, though it was saved entire without his knowledge, this was held to be a revocation.5 So, where he tore off a superfluous seal. But where, being angry with the devisee, he began to tear his will, but being afterwards pacified, he fitted the pieces carefully together, saying he was glad it was no worse, this was held to be no revocation.7

§ 274. Apprenticeship. Documentary evidence is also required in proof of the contract of apprenticeship; there being no legal binding, to give the master coercive power over the person of the

of legislation having tended strongly to the abolition of all distinctions between the requisites for the testamentary disposition of real and of personal property. See 4 Kent, Comm. 516-520; Lovelass on Wills, pp. 315-319; 1 Williams on Executors (by Troubat), pp. 46-48, notes; 1 Jarman on Wills (by Perkins), p. [90] 132, n.; 6 Cruise's Dig. (by Greenleaf), tit. 38, c. 5, § 14, n. [2d ed. (1857) vol. iii. p. 53, and note. See also post, vol. ii. $ 674 et seq.1.

1 Stat. 29 Car. II. c. 3, § 6. The statute of 1 Vict. c. 26, § 20, mentions "burning, tearing, or otherwise destroying the same," &c. And see further, as to the evidence of revocation, 6 Cruise's Dig.

(by Greenleaf) tit. 38, c. 6, §§ 18, 19, 29, notes [2d ed. (1857) vol. iii. p. 81 et seq.; 2 Greenl. Evid. (7th ed.) §§ 680–687]; 1 Jarman on Wills (by Perkins), c. 7, § 2,

notes.

2 Bibb v. Thomas, 2 W. Bl. 1043. 3 Burtenshaw v. Gilbert, Cowp. 49, 52; Burns v. Burns, 4 S. & R. 567; 6 Cruise's Dig. (by Greenleaf) tit. 38, c. 6, § 54; Johnson v. Brailsford, 2 Nott & McC. 272; Winsor v. Pratt, 2 B. & B. 650; Lovelass on Wills, pp. 346-350; Card v. Grinman, 5 Conn. 168; 4 Kent, Comm. 531, 532. 4 Dan v. Brown, 4 Cowen, 490. 5 Bibb v. Thomas, 2 W. Bl. 1043. 6 Avery v. Pixley, 4 Mass. 462. 7 Doe v. Perkes, 3 B. & Ald. 489.

apprentice, unless it be by indentures, duly executed in the forms prescribed by the various statutes on this subject. The general features of the English statutes of apprenticeship, so far as the. mode of binding is concerned, will be found in those of most of the United States. There are various other cases, in which a deed, or other documentary evidence, is required by statutes, a particular enumeration of which would be foreign from the plan of this treatise.1

1 In several of the United States, two subscribing witnesses are necessary to the execution of a deed of conveyance of lands to entitle it to registration; in others, but one. In some others, the testimony of two witnesses is requisite, when the deed is to be proved by wit

nesses. See supra, § 260, n.; 4 Cruise's Dig. tit. 32, c. 2, § 77, n. (Greenleaf's ed.) [2d ed. (1856) vol. ii. p. 341]; 4 Kent, Comm. 457. See also post, vol. ii. tit. Wills, passim, where the subject of Wills is more amply treated.

CHAPTER XV.

OF THE ADMISSIBILITY OF PAROL OR VERBAL EVIDENCE TO AFFECT THAT WHICH IS WRITTEN.1

§ 275. Written evidence. By written evidence, in this place, is meant not every thing which is in writing, but that only which is of a documentary and more solemn nature, containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. "Fiunt enim de his [contractibus] scripturæ, ut, quod actum est, per eas facilius probari poterit." 2 When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected. In other words, as the rule is now more

1 The subject of this chapter is ably discussed in Spence on the Equitable Jurisdiction of Chancery, vol. i. pp. 553575, and in 1 Smith's Lead. Cas. pp. 410418 [305-310], with Hare & Wallace's

notes.

2 Dig. lib. 20, tit. 1, 1. 4; Id. lib. 22, tit. 4, 1.4 [State v. Clemons, 9 Iowa, 534. Nor to show a mistake in computing the amount of the recognizance. Morton v. Chandler, 7 Maine, 44. And, generally, records required to be kept by law are unimpeachable by parol testimony. Mayhew v. Gay Head, 13 Allen (Mass.), 129; Hunneman v. Fire District, 37 Vt. 40. In a suit on a recognizance, the magistrate who made record of the same cannot be permitted to testify that it was not taken by him. McMicken v. Com., 58 Penn. St. 213. Nor can a sheriff's return on levy of execution be supplemented by

oral testimony. Wilcox v. Emerson, 10 R. I. 270. And see post, § 276, n.].

8 Stackpole v. Arnold, 11 Mass. 30, 31, per Parker, J.; Preston v. Merceau, 2 W. Bl. 1249; Coker v. Guy, 2 B. & P. 565, 569; Bogert v. Cauman, Anthon, 70; Bayard v. Malcolm, 1 Johns. 467, per Kent, C. J.; Rich v. Jackson, 4 Bro. Ch. 519, per Ld. Thurlow; Sinclair v. Stevenson, 1 C. & P. 582, per Best, C. J.; McLellan ". The Cumberland Bank, 11 Shepl. 566. The general rule of the Scotch law is to the same effect, namely, that "writing cannot be cut down or taken away, by the testimony of witnesses." Tait on Evid. pp. 326, 327. And this, in other language, is the rule of the Roman civil law, - Contra scriptum testimonium, non scriptum testimonium non fertur. Cod. lib. 4, tit. 20, 1. 1

briefly expressed, "parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument."1 § 276. Origin of the rule. This rule "was introduced in early times, when the most frequent mode of ascertaining a party to a contract was by his seal affixed to the instrument; and it has been continued in force, since the vast multiplication of written contracts, in consequence of the increased business and commerce of the world. It is not because a seal is put to the contract, that it shall not be explained away, varied, or rendered ineffectual; but because the contract itself is plainly and intelligibly stated, in the language of the parties, and is the best possible evidence of the intent and meaning of those who are bound by the contract, and of those who are to receive the benefit of it." "The rule of excluding oral testimony has heretofore been applied generally, if not universally, to simple contracts in writing, to the same extent and with the same exceptions as to specialties or contracts under seal." 2

§ 277. Applicable to language only. It is to be observed, that the rule is directed only against the admission of any other evidence of the language employed by the parties in making the contract, than that which is furnished by the writing itself. The writing, it is true, may be read by the light of surrounding circumstances, in order more perfectly to understand the intent and

1 Phil. & Am. on Evid. p. 753; 2 Phil. Evid. 350; 2 Stark. Evid. 544, 548; Adams v. Wordley, 1 M. & W. 379, 380, per Parke, B.; Boorman v. Johnston, 12 Wend. 573. [Thus the entry in a court of record into which a recognizance is returnable, that the principal made default, cannot be contradicted by parol evidence, on scire facias, against the bail. Commonwealth v. Slocum, 14 Gray, 395. Nor can an official entry on a record, void for uncertainty, be explained by extrinsic evidence. Porter v. Byrne, 10 Ind. 146.]

2 Per Parker, J., in Stackpole v. Arnold, 11 Mass. 31. See also Woolam v. Hearn, 7 Ves. 218, per Sir William Grant; Hunt v. Adams, 7 Mass. 522, per Sewall, J. [Parol evidence has been held to be admissible to show that there was no acknowledgment of a deed, as the certificate sets forth; as, for instance, by proof by the grantor of an alibi. Smith v. Ward, 2 Root (Conn.), 374. See also Edgerton v. Jones, 10 Minn. 427. But, generally, a certificate of acknowledg

ment is conclusive by statute. Green v. Godfrey, 44 Maine, 25. Nor is it permissible to show that the person certifying is qualified, that fact not appearing on the certificate. Ennor v. Thompson, 46 Ill. 214; Johnston v. Haines, 2 Ohio, 55. When written instructions are given by one person to another, with respect to the transaction of certain business of the former, and such instructions are received and acted upon by the latter, parol evidence is not admissible to control them, whether considered as a contract in writing between the parties, or as a direction from a principal to his agent. Richardson v. Churchill, 5 Cush. (Mass.) 425. Acceptances and indorsements in blank, written on bills of exchange and promissory notes, constitute well-defined contracts, and parol evidence cannot be admitted to explain them. Meyer v. Beardsley, 30 N. J. 236 ; Wright v. Morse, 9 Gray (Mass.), 337; Norton . Coons, 6 N. Y. 33. But see contra, Downer v. Cheseborough, 36 Conn. 39; Ross v. Espy, 66 Penn St. 394.]

meaning of the parties; but, as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it, or substituted in its stead. The duty of the court in such cases is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of words they have used.1 It is merely a duty of interpretation; that is, to find out the true sense of the written words, as the parties used them; and of construction, that is, when the true sense is ascertained, to subject the instrument, in its operation, to the established rules of law. And where the language of an instrument has a settled legal construction, parol evidence is not admissible to contradict that construction. Thus, where no time is expressly limited for the payment of the money mentioned in a special contract in writing, the legal construction is, that it is payable presently; and parol evidence of a contemporaneous verbal agreement, for the payment at a future day, is not admissible.3

§ 278. Words generally taken in their ordinary sense. The terms of every written instrument are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense, distinct from the popular sense of the same words; or unless the context evidently points out that, in the particular instance, and in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar sense.

1 Doe v. Gwillim, 5 B. & Ad. 122, 129, per Parke, J.; Doe v. Martin, 4 B. & Ad. 771, 786, per Parke, J.; Beaumont v. Field, 2 Chitty, 275, per Abbott, C. J. See infra, § 295. [And where a written instrument is lost, and parol evidence is given of its contents, its construction still remains the duty of the court. Berwick v. Horsfall, 4 Com. B. N. 8. 450.]

And

2 The subject of Interpretation and Construction is ably treated by Professor Lieber, in his Legal and Political Hermeneutics, c. 1, § 8, and c. 3, §§ 2, 3. see Doct. & St. 39, c. 24. The interpre tation, as well as the construction of a written instrument, is for the court, and not for the jury. But other questions of intent, in fact, are for the jury. The court, however, where the meaning is doubtful, will, in proper cases, receive evidence in aid of its judgment. Story on Agency, § 63, n. (1); Paley on Agency,

But where the instrument con

by Lloyd, p. 198, n.; supra, § 49; Hutchinson v. Bowker, 5 M. & W. 535 [Hills v. London Gas Co., 27 L. J. (Exch.) 60]; and where it is doubtful whether a certain word was used in a sense different from its ordinary acceptation, it will refer the question to the jury. Simpson v. Margitson, 35 Leg. Obs. 172 [Morse v. Weymouth, 28 Vt. 824].

8 Warren v. Wheeler, 8 Met. 97. Nor is parol evidence admissible to prove how a written contract was understood by either of the parties, in an action upon it at law, in the absence of any fraud. Bigelow v. Collamore, 5 Cush. 226; Harper v. Gilbert, Id. 417. [Parol evidence is not admissible to show in what sense the recorded vote of the directors of a corporation was understood by a director. Gould v. Norfolk Lead Co., 9 Cush. 338, 345.]