was intended to pass (b). It is only in such cases as this that extrinsic evidence of a testator's intentions is admissible to explain; since, generally speaking, all extrinsic evidence of a testator's intentions is inadmissible to aid the construction of his will (c); but where, on the construction of the words of the will, a presumption arises, extrinsic evidence is admissible to rebut such presumption (d). Where declarations of the testator are admissible, it is immaterial that they are made some time after the execution of the will (e), or before it (ƒ), and they are admissible to prove the contents of a lost will (g). Verbal statements made by a testator, in and about the making of his will, when accompanying acts done by him in relation to that subject, have been held admissible in evidence (h). A letter written to a testator by his solicitor, whether by way of advice or statement, is inadmissible for the purpose of construction of the will (i). (b) Doe v. Needs, 2 M. & W. 129; Ricketts v. Turquand, 1 H. L. Cas. 472. (c) Doe v. Hiscock, 5 M. & W. 369; cf. Stanley v. Stanley, 2 J. & H. 491. (d) Tussaud v. Tussaud, L. R., 9 Ch. D. 363; 47 L. J., Ch. 849; 26 W. R. 874. (e) Doe v. Allen, 12 A. & E. 455. (f) Langham v. Sandford, 19 Ves. 649. (9) Sugden v. Lord St. Leonards, L. R., 1 P. D. 154; 45 L. J., P. M. & A. 49; 24 W. R. 860; Gould v. Lakes, L. R., 6 P. D. 1; 49 L. J., P. D. & A. 59; 29 W. R. 155. (h) Johnson v. Lyford, L. R., 1 P. & D. 546; 37 L. J., P. & M. 65; 16 W. R. 1130. (i) Per James, L. J., Wilson v. O'Leary, L. R., 7 Ch. 456; 41 L. J., Ch. 342; 20 W. R. 501. A witness cannot be asked what a testator said about property, not distinctly devised, in order to show it was intended to pass with other property devised (). Where the testator was in the habit of calling persons by nicknames or wrong names, and these names appear in his will, they can only be explained and construed by the aid of evidence to show the sense in which he used them, just as if his will was written in cipher or in a foreign language (k). Thus, a bequest to Mrs. G. was upheld by evidence that the testator was in the habit of calling a Mrs. Gregg, Mrs. G. (7). Here the evidence was So, parol evidence is a fact, not a declaration. admissible to show what lands of the testator were reputed to lie in a parish, in order to construe a devise of lands in the parish (m); but where the testatrix, after a specific devise to "my niece, A. B." (who was in fact her husband's niece), left her residue to "all my nephews and nieces," Jessel, M. R., refused to admit A. B. to participate in the residue (n). Where the testator appointed his "nephew, A. B." executor, and his own nephew and his wife's nephew both bore that name, extrinsic evidence was admitted to show that the latter was the person designated (o). (j) Doe v. Hubbard, 15 Q. B. 228. (k) Per Lord Abinger, Doe v. Hiscock, 5 M. & W. 368. (1) Abbott v. Morice, 3 Ves. 148; cf. Lee v. Pain, 4 Hare, 251. (m) Anstee v. Nelms, 1 H. & N. 225. (n) Wells v. Wells, L. R., 18 Eq. 204; 43 L. J., Ch. 381; 22 W. R. 893. (0) Grant v. Grant, L. R., 5 C. P. 727; 39 L. J., C. P. 272; 18 W. R. 951. To identify the person or thing intended as the object or subject of the testator's bounty the court may inquire into every material fact, and all extrinsic circumstances known to the testator as to his family and affairs: but extrinsic evidence of the testator's intention is admissible only in the event of there being more than one person or thing answering to the description he has used (p). In an action arising out of a contract to accept goods which were to arrive by a particular ship, it appeared that there were two ships of the same name, and parol evidence was admitted to show which ship was meant (9). So it has been held that extrinsic evidence is admissible to prove who is the buyer and who the seller in a memorandum or note under the 17th section of the Statute of Frauds (r). And where the defendants had by a deed covenanted to pay the plaintiff a royalty on all articles manufactured or sold "under the powers hereby granted," and the deed did not on the face of it disclose what the powers were, it was held to create a latent ambiguity on the face of the deed, and extrinsic evidence was admitted to prove what was intended by the parties (s). In all cases where extrinsic evidence has been received to explain written evidence, it will appear (p) Charter v. Charter, L. R., 7 E. & I. 364; 43 L. J., P. & M. 73; 24 W. R. 874. (g) Raffles v. Wichelhaus, 2 H. & C. 906. (r) Newell v. Radford, L. R., 3 C. P. 52; 37 L. J., C. P. 1; 16 W. R. 79. (3) Roden v. London Small Arms Co., 47 L. J., Q. B. 413; 25 W. R. 269. that it has been received, not in the form of declarations of intention by parties, but in the form of collateral and surrounding facts, which, like every other species of presumptive evidence, may reasonably be connected with the substantial issue, and so form data to aid the court or jury (t). They must be related to the written evidence, and yet independent of it. They must not be personal declarations of a party, but distinct incidents, which may be presumed to have been present to the mind of the party, without wearing the suspicious form of oral statements. Thus the strict sense of a word is its legal sense; and if it be intelligible in this sense, it cannot be varied or explained by evidence that it was used by the party in a popular, still less in a peculiar sense. Thus, if a man devises to his "children" and he has both legitimate and illegitimate children, only the former will take. Extrinsic evidence cannot be received to show that he intended that his illegitimate children should also take; but where there are no legitimate children to take, the illegitimate will take, or where there is a devise to children, and the evidence shows only one legitimate child, and children who are illegitimate, the latter will take equally with the former (u). In such a case the extrinsic evidence as a collateral fact is strictly admissible to explain a written instrument which would otherwise be insensible. 3. Usage or custom is also admissible to explain (t) Smith v. Thompson, 8 C. B. 44. and control, but not to contradict, a written instrument, such as a contract. It "may be admissible to explain what is doubtful; it is never admissible to contradict what is plain" (x). Thus, wherever the language of a written instrument is so clear that there can be no reasonable ground for construing it as subject to a custom; or where, although the language is ambiguous, the custom itself is uncertain, the writing must be construed strictly according to its literal terms (y). On the general principle, it has been held allowable to show that, by the custom of the country, a provision in a lease as to ten thousand rabbits, signified twelve hundred to the thousand (≈); that "acre" and that "perch" means one quantity in one county, and another quantity in another county (a). So usage is admissible to explain the phrase "regular turns of loading" (b). In such cases the customary meaning of an ambiguous term is for the jury; and, unless such a custom be proved, a judge ought not to leave it to the jury to pronounce on the sense in which the term was used, but should himself construe the term according to its fixed legal or popular signification. Thus (c), where an auctioneer sued for a sum which he was to receive under a written contract, only if he sold "within two months," it was held (x) Per Lord Campbell, Hall v. Janson, 4 E. & B. 500. (z) Smith v. Wilson, 3 B. & Ad. 728. |