when the evidence was admitted. I mean the case of Smith v. Doe d. Jersey [(1821), 2 Brod. & Bing. 473, at p. 553]."-Colpoys v. Colpoys (1822), Jacob, 451, at pp. 463, 464, Sir Thomas Plumer, M. R.

"There is but one case in which it appears to us that this sort of evidence of intention [.e., evidence of the testator's actual intentions] can properly be admitted, and that is, where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises, as to which of the two or more things, or which of the two or more persons (each answering the words in the will), the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors of North S. and South S., it being clear he means to devise one only, whereas both are equally denoted by the words he has used, in that case there is what Lord Bacon calls an equivocation,' i.e., the words equally apply to either manor, and evidence of previous intention may be received to solve this latent ambiguity; for the intention shows what he meant to do; and when you know that, you immediately perceive that he has done it by the general words he has used, which, in the ordinary sense, may properly bear that construction. It appears to us that, in all other cases, parol evidence of what was the testator's intention ought to be excluded, upon this plain ground, that his will ought to be made in writing; and if his intention cannot be made to appear by the writing explained by circumstances, there is no will."-Doe d. Hiscocks v. Hiscocks (1839), 5 M. & W. 363, at pp. 368, 369; 9 L. J. Ex. N. S. 27, at p. 30, Lord Abinger, C. B.

"This, therefore, is a case of a patent ambiguity, in which, according to all the authorities on this subject, parol evidence to explain the meaning of the will cannot legally be admitted."Clayton v. Lord Nugent (1844), 13 M. & W. 200, at p. 206; 13 L. J. Ex. 363, at p. 365, Alderson, B.

"It will be found laid down as a rule, that the only case in which evidence can be admitted to show the intention of the testator, is where the description of the matter bequeathed, or of the legatee, is applicable to two things or to two persons, where, as Lord Coke says, the evidence stands well with the words of the will.'" Bernasconi v. Atkinson (1854), 10 Hare, 345, at p. 348; 23 L. J. Ex. Ch. 184, at p. 185, Wood, V.-C.

"A second rule may be thus stated: if the description contained

in the will be not strictly applicable to any matter or person, the matter of the legacy, or the person of the legatee cannot be ascertained by any parol evidence of the intention of the testator; but the Courts have a right to ascertain all the facts which were known to the testator at the time he made his will, or (as it has been expressed) to place themselves in the testator's position, in order to ascertain whether there exists any person or thing to which the description can be reasonably and with sufficient certainty applied-the presumption necessarily being, that the testator intended some existing matter or person."—Ibid.

"Then arises a third class of cases, in which the description, taken in its natural and literal sense, is not applicable strictly to any person or to any subject-matter, but upon which there may be either a popular or any other sense, and from the mode in which the testator has been in the habit of using the particular expression with regard to particular persons or things, where there may be a right to ascertain all the circumstances which surrounded the testator at the time of making his will; and where the Court is bound, if possible, to attach some sense and intention to the devise or bequest in a will not expressed in words sufficiently apt to be an exact description of the subject or person intended, and which might, on the whole, lead the Court to a reasonable conclusion as to who is the person or the subject intended."-Bernasconi v. Atkinson (1854), 23 L. J. Ch. 184, at p. 186, Wood, V.-C.

"The only case in which evidence of this kind [evidence of statements of the testator, as to whom he intended to benefit, or supposed he had benefited, by his will] can be received is where the description of the legatee, or of the thing bequeathed, is equally applicable in all its parts to two persons or to two things.

There is a class of evidence which in this case, as in all cases of testamentary dispositions, is clearly receivable. The Court has a right to ascertain all the facts which were known to the testator at the time he made his will, and thus to place itself in the testator's position, in order to ascertain the bearing and application of the language which he uses, and in order to ascertain whether there exists any person or thing to which the whole description given in the will can be, reasonably and with sufficient certainty, applied. I may refer, as well-known authorities for these propositions, to the cases of Doe v. Hiscocks (1839), 5 M. & W. 363; 9 L. J. Ex. N. S. 27; Bernasconi v. Atkinson (1854), 10 Hare, 345; 23 L. J. Ch. 184; and Drake v. Drake (1860), 8 H. L. C.

172; 29 L. J. Ch. 850."-Charter v. Charter (1874), 7 H. L. 364, at p. 377; 43 L. J. P. 73, at p. 80, Lord Cairns, L. C. (cited by Malins, V.-C., in In re Wolverton Mortgaged Estates (1877), 7 Ch. D. 197, at p. 198; 47 L. J. Ch. 127, at p. 128; by Hannen, J., in In the goods of Blake (1881), 6 P. D. 217, at p. 218; and by Jeune, P., in In the goods of Chappell, [1894] P. 98, at p. 100 ; 63 L. J. P. 95, at p. 96).

6

"The first question which I have to determine is, whether parol evidence is admissible to any, and if any, to what extent, in order to assist the Court to ascertain the meaning of the testator as expressed in his will. I have said as expressed in his will, because it is clearly settled by law that the Court is not entitled to inquire into the intention of the testator apart from the language which he has used. The whole of the testator's will must be in writing, and the Court is therefore confined to putting an interpretation on words actually used by him; or, as the rule is expressed by Sir J. Wigram (paragraph 6): The judgment of a Court in expounding a will should be simply declaratory of what is in the instrument.' In considering, therefore, whether a particular person or thing has been sufficiently indicated by a testator, there must be some words to which the required meaning may be attached. A complete blank cannot be filled up by parol testimony, however strong. Thus a legacy to Mr. cannot have any effect given to it: Baylis v. Attorney-General (1741), 2 Atk. 239; nor a legacy to Lady Hunt v. Hort (1791), 3 Bro. C. C. 311. But if there are any words to which a reasonable meaning may be attached, parol evidence may be resorted to to show what that meaning is. Thus a legacy to a person described by an initial, as to Mrs. C., admits of explanation as by showing that the testator was accustomed to speak of a particular person by the initial of her name : Abbott v. Massie (1796), 3 Ves. 18; Clayton v. Lord Nugent (1844), 13 M. & W.200, at p. 207. And where a blank was left for the Christian name parol evidence has been admitted to show who was intended: Price v. Page (1799), 4 Ves. 679. . . . . I have dealt with the case thus far on the supposition that evidence of testator's declarations of intention are not admissible. In the case of Charter v. Charter (1874), L. R. 7 H. L. 364, at p. 377; 43 L. J. P. 73, at p. 80, the Lord Chancellor (Lord Cairns) says: The only case in which evidence of this kind can be received is where the description of the legatee, or of the thing bequeathed, is equally applicable in all its parts to two persons or two things.'

:

Sir J. Wigram states the proposition thus (prop. 7, par. 194): The only cases in which 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.' If these expositions of the law are to be taken without any qualification, evidence of the testator's expressed intention could not be given in this case, for there is here only one known subject to which the testator's language can apply."-In the goods of De Rosaz (1877), 2 P. D. 66, at pp. 68— 71; 46 L. J. P. i, at p. 8, Sir J. Hannen, President (cited by Sir Gorell Barnes, President, in In the Estate of Hubbuck, [1905] P. 129, at pp. 133, 134; 74 L. J. P. 58, at p. 60).

Recourse may be had to the codicil of a will to clear up the ambiguity in the will.

"If there were an obviously erroneous recital of the will in the codicil, that would not alter the construction of the will: see Skerratt v. Oakley (1798), 7 T. R. 492; 4 R. R. 504; but if the recital in the codicil be not obviously erroneous, I have no doubt that I may refer to the codicil to clear up an ambiguity in the will. The principal authority for this is Darley v. Martin (1853), 13 C. B. 683; 22 L. J. C. P. 249. There Jervis, C. J., in delivering the considered judgment of the Court of Common Pleas, says (at p. 690): And as to the effect of the codicil, it was argued, that an erroneous reference in a codicil to the disposition of the will cannot constitute a new bequest in opposition to the will; and Skerratt v. Oakley (1798), 7 T. R. 492, was relied on. But it appears to us that the argument with respect to the effect of the codicil, when rightly considered, is not that the will is at all revoked or varied by the codicil; but rather, that, the will and codicil being all one testament, the language of the will may be interpreted by that of the codicil; and that, accordingly, the gift over in the will, in default of such issue, being capable of importing a bequest over on failure of issue living at the death, it ought to be inferred that the testator employed it in that sense, because, in the codicil, he refers to it as if it were a gift over in default of his daughter's leaving no issue, which, as regards personalty, is tantamount to a gift on failure of issue living at her death. The argument, thus viewed, appears to be well founded.' But the authorities do not rest there, for Kindersley, V.-C., than whom a more careful or accurate judge never existed, did the same thing in Grover v. Raper (1856), 5 W. R. 134. In

that case there was an ambiguity in the words of the will; and the Vice-Chancellor, after expressing the inclination of his opinion as to the meaning of the will, said that the codicil, however, put the matter beyond all doubt. I think, therefore, that, following the considered judgment of the Court of Common Pleas in Darley v. Martin (1853), 13 C. B. 683; 22 L. J. C. P. 249, and this decision of Kindersley, V.-C., I may have recourse to the codicil to clear up the ambiguity in the will."-In re Venn, Lindon v. Ingram, [1904] 2 Ch. 52, at pp. 55, 56; 73 L. J. Ch. 507, at pp. 508, 509, Joyce, J.

The Wills Act, 1837 (7 Will. IV. & 1 Vict. c. 26).

Sect. 23. "No conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid [sects. 18 and 20] shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death."

Vesting.

The law favours early vesting.

66 It may be stated as a general rule, that where a testator creates a particular estate, and then goes on to dispose of the ulterior