unable to collect the intention of the party, evidence of the declaration of the party cannot be admitted to explain his intention, but the clause will be void on account of its son & others v. Stanley, 10 Johns. Rep. 133. In a subsequent case, which was also an action of ejectment for a lot in the military tract, the plaintiff gave in evidence letters patent to George Houseman; it was stated in the ballotting book that a man of the name of George Houseman, belonged to Wendell's company in the first regiment. The defendant offered to prove that no such man as George Houseman was enlisted or served in Wendell's company, and that a man of the name of George Hosmer did enlist and serve in that company, and that the patent was issued in the name of George Houseman by mistake, and that George Hosmer was the soldier entitled to the patent and intended thereby. This evidence having been rejected by the judge, a verdict was found for the plaintiff, and on a motion for a new trial it was held by a majority of the court that the patent could not be avoided in a collateral action, but that if there was a mistake, the proper remedy was by scire facias, or other proceedings for that purpose in chancery. Platt, J. in delivering the opinion of the majority of the judges ob served that this case was distinguishable from that of Jackson v. Stanley in two respects. 1. The alleged mistake here is in the surname, and not merely in the christian name of the grantee; 2. The state has not in this case, interfered to assert its right by a new legislative grant to the opposite claimant. "The rule, says the learned judge, is indisputable, that parol evidence cannot be received to vary or contradict a written instrument of clear, certain, and unequivocal import. A latent ambiguity may be explained by parol proof, in order to elucidate and explain written words of doubtful sense, as if a grant be made to John Smith, and there be several persons of that name, parol evidence is admissible to explain which of the persons bearing the same name was intended. So, parol evidence would be admissible to prove, that George Houseman and George Hosmer are the same person. But certainly it is not explaining a latent ambiguity, to prove that a grant to George Houseman, a real person, was intended for another person of the name of George Hosmer. Such an extension of the rule would destroy the security of written conveyances. If a different person may be substituted by parol proof, for the person certainly uncertainty (b). In many cases an apparent uncertainty may be removed by collecting the general intention from other passages in the writing, so as to make the whole consistent; or by a reference to some event, or some other described as grantee in a deed, there is no other essential part of the deed which might not be altered in the same way., Such a relaxation in the established rules of evidence, would defeat the spirit and policy of the statute of frauds, which requires convey. ⚫ances of land should be in writing." Thompson, Ch. J. dissented on the ground that this case could not be distinguished from that of Jackson v. Stanley. Speaking of that case he says; "if, under the patent, the title was vested in David Hungerford, it was not, nor could be pretended, that the legislature could devest him of his title, and give it to Daniel Hungerford, the person really intended as the patentee. The patent to David must be first got rid of, before the act of the legislature could take effect, and so it was considered by the court. Notwithstanding there was a person of the same name with the patentee, who claimed title to the land, the court said the patent was void, because he was not the person intended, and that it was competent to show this by parol evidence." Jackson d. Houseman v. Hart, 12 Johns. Rep. 77. A. by a written contract agreed to receive of B. 60 shares of the Hudson bank, on which 10 dollars per share had been paid, and to deliver B. his note for 667 dollars and pay him the balance in cash; and also, to pay 5 per cent. advance. The question was whether it was competent for B. to explain by parol, whether the 5 per cent. advanced on the shares, was to be on the sum then actually paid in, or on the nominal amount of the shares. It was held that this was a latent ambiguity, and that the parol evidence was admissible. Cole v. Wendell, 8 Johns. Rep. 116. (b) In Dinkle's Lessee v. Marshall, 3 Binney 587., it was held that declarations of the grantor, at and immediately before the sealing and delivery of a deed, are admissible to show that he did not intend to convey what might nevertheless be included within the description of the deed. In Drum v. Lessee of Simpson, 6 Binney 482., Tilghman, Ch. J. says that it had been long settled in the Sup. Court of Pennsylvania that parol evidence might be received to prove what passed before and at the time of the execution of *417 writing, or some medium of explanation, adverted to in the instrument. But when, after comparing the several parts of a written instrument, and collecting all the lights which the writing itself supplies, the intention of the parties still appears to be uncertain, parol evidence of their intention is not admissible. "Ambiguitas patens," Lord Bacon (1), (that is, an ambiguity apparent on the deed or instrument,)" cannot be helped 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, and subject to averment, and so in effect to make that pass without deed, which, the law appoints, shall not pass but deed. It holds generally," he adds, "that all ambiguity, of words within the deed, and not out of the deed, may be helped by construction, or in some cases by election, but never by averment, but rather shall make the deed void for.uncertainty (c)." And in the case of a will, if any devise is expressed doubtfully and with uncertainty, the only construction, which it *is capable of receiving, is by comparing it with the other parts of the will; the declarations of the testator are not admissible to remove the apparent ambiguity, or to explain his intention. As, for example, if the devise is to "one of the sons of J. S.," who has several sons, such an uncertainty in the description of the devisee cannot be explained by parol proof (1). So in a case, where the testator made dispositions in his will to several persons, among others to his wife and niece, who were the only women mentioned in the will, and then devised "to her" a particular estate for (1) Bac. Elem. rule 23. (1) 2 Vern. 624. the deed, if the party offering the evidence alleges fraud or mistake in the transaction. Et vide Hurst's Lessee v. Kirkbridge, 1 Binney 616. Reichart v. Castator, 5 Binney 109. (c) Vide 6 Mass. Rep. 440. life, the question was whether parol evidence could be admitted, to show which of the two was intended; the Lord Chancellor refused to receive it, on the ground that it would tend to put it in the power of witnesses to make wills for testators; the court held, that though the term "her" was relative, it was to be referred in this case to the wife, because in other parts of the will it seemed to relate to the wife; but expressly excluded the parol evidence offered to explain the will (2). However, courts of law as well as courts of equity will admit evidence of the situation and circumstances of the parties, for the purpose of assisting them in putting a construction on wills, that are not clearly expressed ; as, in the case of Masters v. Masters (3), where the testator, after having bequeathed a legacy to the poor of two hospitals in Canterbury, (naming them,) bequeathed another sum in his codicil" to all and every, the hospitals," the second bequest was adjudged not to be void for uncer tainty, but to have been intended for all the hospitals in Canterbury, as it appeared in evidence, that the testator lived in Canterbury, and had in his will taken notice of two hospitals there (a). But evidence of the value of the estate devised, or of the amount of the testator's property, will not be admitted in order to raise an argument in favour of a *particular construction; whatever may be the amount, the general rule of construction must prevail (1)(b). (2) Castleton v. Turner; cited 2 Ves. 217. (3) 1 P. Wms. 420. See also Harris v. Bishop of Lincoln, 2 P. Wms. 135. Sir J. Eden v. Earl of Bute, 3 Bro. Parl. C. 79. Doe v. Burt, 1 T. R. 701. Şelwood v. Mildmay, 3 Ves. jun. 310. 6 Ves. 396. 13 Ves. (1) Doe dem. Handson v. Fyldes, (a) Vide Doe d. Barnes v. Provoost, 4 Johns, Rep. 63. (b) The testator, Murray, having amassed a large property in the East Indies, shipped goods on board of a vessel at Calcutta, which were consigned to the defendants: and also engaged his passage for America on board of a vessel belonging to the defendants. Before the vessel sailed the testator had a fall from a horse, and was so much injured that his life was despaired of, and he in con *418 A blank in a will, for the devisee's name, is an instance of apparent ambiguity, and parol evidence cannot be admitted to show what person's name the testator intended to insert (2). But on a bequest to a person, whose surname was mentioned, with a blank left for the Christian name, the party who claimed the legacy, was allowed not only to prove acts of kindness and constant affection on the part of the deceased, but to show further that the testator had said "he would provide for him, and that he had left him something by his will (3) ;" and in another case, where only one initial appeared in the will, (the bequest being "to Mrs. G.," without any other description,) the Chancellor referred it to the master to receive evidence, to show who was the person intended to be described by that initial (4). The distinction between these cases is, that in the former there is no description whatever of a devisee, and whether the testator had selected any person as the object of his devise is entirely uncertain on the face of the will; but in (2) Baylis v. The Attorney-GeneCastledon v. TurHunt v. Hort, 3 ral, 2 Atk. 239. ner, 3 Atk. 257. Bro. Ch. C. 311. (3) Price v. Page, 4 Ves. jun. 680. (4) Abbot v. Massie, 3 Ves. jun. 148. sequence made his will, and soon after died. The will contained the following clause: "All my property which has been remitted home by me from this country to America, I desire may remain in the hands of those to whom I sent it, for their own use." A subsequent clause in the will was, "the property now going to America, I do not consider as belonging to any person." In an action by the administrator cum testamento annexo, against the consignees of the goods to recover their value, the defendants set up a claim to the property under the above clauses in the will, and offered in evidence parol declarations of the testator subsequent to making the will, that he intended the property should be theirs as a compensation for the loss and expense which they had sustained in fitting the cabin of the ship for his accommodation, and rejecting passengers and freight the evidence having been admitted at the trial, on a motion for a new trial it was held inadmissible. Richards v. Dutch, 8 Mass. Rep. 506. |