before the court, it could not be said that the disputed clause was grammatically ambiguous; and yet it was finally held that it admitted of a sense which was certainly different from the primary meaning of the words. Neither can it be said that in all cases in which a logical construction is confessedly applicable, the result of comparing the language with the facts is to produce an ambiguity, even if the word ambiguity is used, not in its proper sense, but merely as implying an uncertainty of meaning. An expression which, read by itself, is unambiguous in one sense, may, when considered in connection with the circumstances in which the author stood, be equally clear in another sense. The same argument which shows the first signification to be inadmissible, may convince the mind that the other is precisely the sense intended. It is not a correct analysis of the process of interpretation to say, that the interpreter first concludes the words to be ambiguous, and then begins to inquire into their true meaning.

It is no part of my present purpose to determine what, upon the preponderance of authority, is the present rule of the English law respecting the admission of extrinsic evidence in aid of interpretation; or whether the comparison of decisions will furnish the practitioner with any fixed and reliable principle. I have referred to the opinions of the Lords in Abbott v. Middleton, merely with the view of showing how far the rule-that words not grammatically ambiguous must necessarily be construed in their primary sense, if, when so understood, they are not insensible with reference to extrinsic circumstances-is inflexibly maintained in our own practice.

I am inclined to think that, in ordinary cases, it is next to impossible to shut out all inference of intention until the possibility of accepting the terms in their literal signification has been determined. The rule which excludes an inferential interpretation of an unambiguous text, unless the primary sense leads to an inconsistency or absurdity, is found, when liberally construed, to proceed upon premises which, from the nature of the case, are at the outset in dispute. First, the words of the text must be shown to admit only of one meaning; or, at the least, not to be intelligible in a second sense

without some sacrifice of their ordinary signification or grammatical construction. Secondly, the proper sense thus ascertained must be in harmony with the context, and with the entire scheme of the instrument. Thirdly, as applied to the testator's circumstances, it must lead to no absurdity or glaring improbability. Now, it is precisely upon these three fields that the battle of interpretation is fought; and it is not until the contest upon these points is decided, that it is clearly seen how far the principle is fairly applicable.

Neither can I concede that if inferential interpretation, whether founded upon intrinsic or upon extrinsic indicia of intention, is thus admitted without the restraint of any technical rule, the principle which asserts the incontestable authority of the direct evidence of intention, furnished by the text itself, is seriously compromised. The words are still the principal index of intention; and their ordinary signification and grammatical construction are adopted, unless the context and collateral circumstances are such as to convince the interpreter that the intended meaning was otherwise. Non aliter a significatione verborum receditur quam cum manifestum est aliud sensisse testatorem. (a) Can we, after all, adopt any more precise formula, without risking a more important principle, and sacrificing the spirit to the letter?

What then, it may be asked, is the limit of inferential interpretation, if the primary sense of words is to be abandoned upon arguments of comparative probability? It appears to me that some limits are fixed by the very object of the work of exposition, which is not to determine the probable wishes of a testator respecting the disposition of his property, but to fix the meaning in which he intended his words to be understood. Hence, as a general rule, mistakes cannot be rectified by interpretation. A mere error of expression may be disregarded if the intended meaning is apparent. But an omitted provision cannot be supplied. Still less is it consistent with the duty of a mere interpreter to substitute, for a gift or direction introduced upon a misapprehension of facts, that provision which the testator would have introduced had he been better (a) Dig., lib, 32, De Leg. lib. 3, 1, 69.

informed. This is a rule which has not been always attended to in our own courts. There is a well-known case (a) in which a testator gave a legacy of part of his stock in the £4 per cent. annuities of the Bank of England. It appeared that the testator had not at the date of the will, or at his death, any £4 per cent. annuities. It was also shown that he had formerly held that stock, but had sold his interest in it, and had invested the proceeds in Long Annuities; and his attorney deposed in effect that the testator gave him, as part of his instructions, a former will by which he had given legacies payable out of £4 per cent. stock, and that the testator, not having informed the deponent that he had sold the stock, the deponent prepared the will as if the investment had not been changed. The Master of the Rolls, Lord Alvanley, held the legatee entitled to a legacy of so much £4 per cent. stock to be purchased out of the general personal estate. This case has frequently been canvassed with reference to the question whether the extrinsic evidence was properly admissible. But the more important objection seems to be, that the court directly assumed a jurisdiction to rectify a mistake in the will. Upon the mere question of interpretation the evidence was of a nature to damage the legatee's claim. If it could have been shown that the testator never had any £4 per cent. annuities, one may conceive a case being made, that by £4 per cent. stock the testator really meant to describe an aliquot part of his interest in the Long Annuities. But the evidence received was fatal to such a case, since it showed that by £4 per cent. annuities, a specific stock supposed to be in the testator's name was in fact intended. And the court, in decreeing the legatee to be entitled to a general legacy of the amount named, manifestly went beyond the province of interpretation, and introduced into the will a provision which it would have contained if the facts had been present to the mind of the testator and his advisers.

The above is an instance of a testator not attending to facts actually existing. Difficulties of interpretation more frequently arise in consequence of the events after the date of

(a) Selwood v. Mildway, 3 Ves. 306. Lindgren v. Lindgren, 9 Bea. 358.

the will being different from those contemplated by the testator. In such a case it may be said that the testator had no intention specially applicable to the events which have happened. It is not necessary, however, that a testator should foresee all the consequences of his direction. The only question for the interpreter is, whether the provision logically includes the actual case. The probability, however great, that a testator would have qualified a clause if he had contemplated all its logical consequences in the actual state of circumstances, is not a sufficient reason for refusing to give effect to it. In this respect, interpretation as here understood differs from the interpretation of laws, as practised in the Roman system, and from that process of equity which is described by Aristotle as supplying that which the lawgiver would himself have said if he had been present, and the rule which he would have laid down if he had known the circumstances (ὃ κἂν ὁ νομοθέτης αὐτὸς ἂν εἴποι ἐκεῖ παρὼν καὶ εἰ ᾔδει ἐνομοθέτησεν ἄν). (α)

Again, when the municipal law requires a written expression of intention, there must be some limit as to the amount of certainty with which the intention must be declared. It is not easy to lay down a definite rule upon this subject; but in attempting to fix the amount of indulgence which ought to be allowed to the imperfections of language, it appears equitable that the rule should have some reference to the point of view for which the words are regarded by the testator. An expression may, with a certain amount of information, appear distinct, which, to a person possessing either a greater or a less knowledge of the circumstances, would be vague and uncertain. There is no hardship in requiring such a declaration of intention as would convey a reasonably distinct meaning to a person in the testator's own position. If a testator directs "that some part of his property" shall be given to A, or devises his estate to "one of the several sons of B," the declaration of intention is imperfect from the testator's own point of view; and if any inference, founded either on direct or indirect indicia of intention, is allowed to (a) Ethic, Nicom. E, 14.

show what part of the property, or which son was intended, the will would be completed as well as expounded by the interpreter.

I cannot close these imperfect observations upon the use of extrinsic evidence in aid of interpretation, without referring shortly to the maxim so often cited respecting latent ambiguities, and to Lord Bacon's well-known commentary on it.

We should commit an injustice to the memory of our great lawyer and philosopher, if we looked upon this valuable fragment as if it purported to be a complete dissertation upon the use of extrinsic evidence in the judicial interpretation of legal instruments. The commentary is to be found in the tract entitled, a "Collection of some of the principal Rules and Maxims of the Common Law, with their Latitude and Extent," the object of which appears to be, both by the author's preface and by the method pursued under every head, to illustrate, principally by examples, the true application of the received maxims. "Whereas these rules," he says in his preface, are some of them ordinary and vulgar, that now serve but for grounds and plain songs to the more shallow and impertinent sort of arguments; yet, nevertheless, I have not affected to neglect them, but having chosen out of them such as I thought good, I have reduced them to a true application, limiting and defining their bounds, that they may not be read upon at large, but restrained to point of difference: for as, both in the law and other sciences, the handling of questions by commonplace, without aim or application, is the weakest; so yet, nevertheless, many common principles and generalities are not to be contemned if they be well derived and deduced into particulars, and their limits and exclusions duly assigned."

The twenty-fifth and last maxim illustrated by Bacon's comments, is that which relates to our present subject. Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur. Upon this text Bacon proceeds in his usual method; first pointing out the distinctions involved in the maxim itself, and then adding such further distinctions as occur in the application of the rule to practice, and illustrating each branch of his division by one or more examples.