words of the will into contact with the circumstances to which they refer, must be to determine the identity of the person intended, it being the form of expression only, and not the intention, which is ambiguous; and evidence of facts requisite to reduce the testator's meaning to certainty would not, it should seem, in the instance above put, be excluded; *though it would be quite another question

if A. had more sons than one, or if her husband were living.' [*473] "In the case of a patent ambiguity," remarks Sir T. Plumer, "that is, one appearing on the face of the instrument, as a general rule, a reference to matters dehors the instrument is forbidden. It must, if possible, be removed by construction and not by averment. But, in many cases, this is impracticable where the terms used are wholly indefinite and equivocal, and carry on the face of them no certain or explicit meaning, and the instrument furnishes no materials by which the ambiguity thus arising can be removed; if in such cases the Court were to reject the only mode by which the meaning could be ascertained, viz., the resort to extrinsic circumstances, the instrument must become inoperative and void. As a minor evil, therefore, common sense and the law of England (which are seldom at variance) warrant the departure from the general rule, and call in the light of extrinsic evidence."

With respect to ambiguitas latens, the rule is, that, inasmuch as the ambiguity is raised by extrinsic evidence, so it may be removed in the same manner. Therefore, if a person grant his manor of S. to A. and his heirs, and the truth is, he hath the manors both of North S. and South S., this ambiguity shall be helped by averment as to the grantor's intention. So, if A. levies a fine to William his son, and A. has two sons named William, the averment that it was his intention to levy the fine to the younger is good, and stands well with the words of the fine. So, if one devise to [*474] his son John, when he has two sons of that name, or to the eldest son of J. S., and two persons, as in the case of a second marriage,

1 Wigram, Ex. Evid., 3d ed. 66.

6

2 Per Sir Thos. Plumer, M. R., Colpoys v. Colpoys, 1 Jac. R. 463, 464, where several instances are given; Collison v. Curling, 9 Cl. & Fin. 88.

32 Phill. Evid., 9th ed. 315; Wigram, Extrin. Evid., 3d ed. 101; Judgment, Bradley v. Washington Steam Packet Company, 13 Peters, R. (U. S.) 97.

4 Bac. Max., reg. 25; Plowd. 85, b; Miller v. Travers, 8 Bing. 248; E. C. L. R. 21.

5 Altham's case, 8 Rep. 155; cited, 8 Bing. 251; E. C. L. R. 21.

6 Counden v. Clerke, Hob. 32; Jones v. Newman, 1 W. Bla. 60; Cheney's case, 5 Rep. 68; per Tindal, C. J., Doe d. Winter v. Perratt, 7 Scott, N. R. 36.

meet that designation,' evidence is admissible to explain which of the two was intended. Whenever, in short, the words of the will in themselves are plain and unambiguous, but they become ambiguous by the circumstance that there are two persons to each of whom the description applies, then parol evidence may be admitted to remove the ambiguity so created.2

In all cases, indeed, in which a difficulty arises in applying the words of a will to the thing which is the subject-matter of the devise, or to the person of the devisee, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted and removed by the production of further evidence upon the same subject, calculated to explain what was the estate or subject-matter really intended to be devised, or who was the person really intended to take under the will; and this appears to be the extent of the maxim as to ambiguitas latens.3 The characteristic of these cases is, that the words of the will do describe the object or subject intended, and the evidence of the declarations of the testator has not the effect of varying the instrument in any way whatever it only enables

[*475] the *Court to reject one of the subjects or objects to which the description in the will applies, and to determine which of the two the devisor understood to be signified by the description which he used in the will."

A devise was made of land to M. B. for life, remainder to "her three daughters, Mary, Elizabeth, and Ann," in fee, as tenants in common. At the date of the will, M. B. had two legitimate daughters, Mary and Ann, living, and one illegitimate, named Elizabeth. Extrinsic evidence was held admissible to rebut the claim of the last-mentioned, by showing that M. B. formerly had a legitimate daughter named Elizabeth, who died some years before the date of the will, and that the testator did not know of her death, or of the birth of the illegitimate daughter."

1 Per Erskine, J., 5 Bing. N. C. 433; E. C. L. R. 35; Doe d. Gord v. Needs, 2 M. & W. 129; (*) Richardson v. Watson, 4 B. & Ad. 792; E. C. L. R. 24. And see the cases on this subject, cited, 2 Phill. Ev., 9th ed. 316, et seq.

2 Per Alderson, B., 13 M. & M. 206, and in Smith v. Jeffrys, 15 M. & W. 561;(*) The Duke of Dorset v. Lord Hawarden, 3 Curteis, Eccl. R. 80.

3 Judgment, Miller v. Travers, 8 Bing. 247, 248; E. C. L. R. 21; per Abbott, C.

J., Doe d. Westlake, 4 B. & Ald. 58; E. C. L. R. 6.

4 Judgment, Doe d. Gord v. Needs, 2 M. & W. 140;(*) Lord Walpole v. Earl of Cholmondeley, 7 T. R. 138.

5 Doe d. Thomas v. Beynon, 12 Ad. & E. 431; E. C. L. R. 40; Doe d. Allen v. Allen, Id. 451.

It is true, moreover, that parol evidence must be admissible to some extent to determine the application of every written instrument. It must, for instance, be received to show what it is that corresponds with the description; and the admissibility of such evidence for this purpose being conceded, it is only going one step further to give parol evidence, as in the above instances, of other extrinsic facts, which determine the application of the instrument to one subject, rather than to others, to which, on the face of it, it might appear equally applicable.1

"Speaking philosophically," says Rolfe, B., "you must always look beyond the instrument itself to some extent, in order to ascertain who is meant; for instance, you must look to names and places; "2 and, "in every specific devise or bequest, it is clearly competent and necessary to *inquire as to the thing specifically devised [*476] or bequeathed."3 Thus, if the word Blackacre be used in a will, there must be evidence to show that the field in question is Blackacre. Where there is a devise of an estate purchased of A., or of a farm in the occupation of B., it must be shown, by extrinsic evidence, what estate it was that A. purchased, or what farm was in the occupation of B., before it can be known what is devised." So, whether parcel or not of the thing demised is always matter of evidence. In these and similar cases, the instrument appears on the face of it to be perfectly intelligible, and free from ambiguity, yet extrinsic evidence must, nevertheless, be received, for the purpose of showing what the instrument refers to."

6

The rule as to ambiguitas latens, above briefly stated, may likewise be applied to mercantile instruments, with a view to ascertain the intention, though not to vary the contract, of the parties. In the case of a guarantee, for instance, as of a will, the circumstances under which the document was executed may be looked at, not to 2 13 M. & W. 207.(*)

12 Phill. Ev., 9th ed. 297, 329.

3 Per Lord Cottenham, C., Shuttleworth v. Greaves, 4 My. & Cr. 38.

4 Doe d. Preedy v. Holtom, 4 Ad. & E. 82; E. C. L. R. 31; recognised, Doe d. Norton v. Webster, 12 Ad. & E. 450; E. C. L. R. 40.

5 Per Sir Wm. Grant, M. R., 1 Mer. 653.

6 Per Buller, J., Doe d. Freeland v. Burt, 1 T. R. 701, 704; Paddock v. Fradley, 1 Cr. & J. 90; Doe d. Beach v. Earl of Jersey, 3 B. & C. 870; E. C. L. R. 10.

7 Per Patteson, J., and Coleridge, J., 4 Ad. & E. 81, 82; E. C. L. R. 31. See Doe d. Norton v. Webster, 12 Ad. & E. 442; E. C. L. R. 40. Evidence admitted to identify pauper with person described in indenture of apprenticeship, Reg. v. Inhabitants of Wooldale, 6 Q. B. 549; E. C. L. R. 51.

8 Smith v. Jeffryes, 15 M. & W. 561.(*)

make the document, but to show its construction.

Moreover, as we shall hereafter see, whenever a contract is entered into with reference to a known and recognised use of particular *terms employed [*477] by the contracting parties, or with reference to a known and established usage, evidence may be given to show the meaning of those terms, or the nature of that usage, amongst persons conversant with the particular branch of commerce or business to which they relate. But cases of this latter class more properly fall within a branch of the law of evidence which we shall separately consider, viz., the applicability of usage and custom to the explanation of written instruments.3

2

QUOTIES IN VERBIS NULLA EST AMBIGUITAS, IBI NULLA EXPOSITIO CONTRA VERBA FIENDA EST.

(Wing. Max., p. 24.)

In the absence of ambiguity, no exposition shall be made which is opposed to the express words of the instrument.

It seems desirable, before proceeding further with the consideration of some additional maxims relative to the subject of ambiguity in written instruments, to take this opportunity of observing, that, according to the rule which stands at the head of these remarks, it is not allowable to interpret what has no need of interpretation, and that the law will not make an exposition against the express words and intent of the parties. Hence, if I grant to you that you and your heirs, or the heirs of your body, shall distrain for a rent of forty shillings within my manor of S., this, by construction of law, ut res magis valeat, *shall amount to a grant of a rent out of [*478] my manor of S., in fee-simple, or fee-tail; for the grant would be of little force or effect if the grantee had but a bare distress and But if a bare rent of forty shillings be granted out of the manor of D., with a right to distrain if such rent be in arrear in the manor of S., this will not amount to a grant of rent out of the manor of S., for the rent is granted to be issuing out of the manor of D.,

no rent.

1 Goldshede v. Swan, 1 Exch. 154, (*) and cases there cited.

2 Robertson v. Jackson, 2 C. B., 412; E. C. L. R. 52; Grant v. Maddox, 16 L. J., Exch. 227; S. C., 15 M. & W. 737.(*)

3 Post, chap. 10.

4 Co. Litt. 147, a; 7 Rep. 103; per Kelynge, C. J., Lanyon v. Carne, 2 Saunds. R. 167. See Jesse v. Roy, 1 Cr., M. & R. 316.(*)

and the parties have expressly limited out of what land the rent shall issue, and upon what land the distress shall be taken.1

It may, moreover, be laid down as a general rule, applicable as well to cases in which a written instrument is required by law, as to those in which it is not, that, where such instrument appears on the face of it to be complete, parol evidence is inadmissible to contradict the agreement: in such cases the Court will look to the written contract in order to ascertain the meaning of the parties, and will not admit the introduction of parol evidence, to show the agreement was in reality different from that which it purports to be. Although, moreover, it has been said that a somewhat strained interpretation of an instrument may be admissible where an absurdity would otherwise ensue, yet, if the intention of the parties is not clear and plain, but in equilibrio, the words shall receive their more natural and proper construction."

[*479]

The general rule, observes a learned judge, I take to be, that, where the words of any written instrument are free from ambiguity in themselves, and where external circumstances *do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict plain common meaning of the words themselves; and that, in such case, evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument, is utterly inadmissible." The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered as an exception from or, perhaps, to speak more precisely, not so much an exception from, as a corollary to-the general rule above stated, that, where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no

1 Co. Litt. 147, a.

22 Phill. Ev., 9th ed. 357.

3 Per Bayley and Holroyd, JJ., Williams v. Jones, 5 B. & C. 108; E. C. L. R. 11. Earl of Bath's case, Cart., R. 108, 109, adopted 1 Fonbl. Eq., 5th ed. 445, n. 5 Per Tindal, C. J., Shore v. Wilson, 5 Scott, N. R. 1037. For an instance of the application of this rule to a will, see Doe d. Oxenden v. Chichester, 3 Taunt. 147; affirmed in error, 4 Dow, 65; cited and explained, Wigram, Extrin. Evid., 3d ed. 77.