was used, proof by outside evidence that he no ambiguity either in the language used used it in a peculiar or unusual sense would be by the testator or in its application to surto contradict and defeat his expressed intent, rounding circumstances. "The heirs of my found from the common and usual meaning late husband" adequately describe a class, attached to common and usual language; and when concretely applied there is no for he must have known or assumed that his doubt as to the particular person who anlanguage would receive that interpretation. swers the testatrix's description. The words Kendall v. Green, 67 N. H. 557, 562, 42 Atl. do not apply to or include nephews and 178. It is a general principle based upon nieces, and to construe the will in that sense sound reason that, when the language of a would be to flatly contradict the clearly exwill is plain and unambiguous in view of the pressed intention of the testatrix, and to attendant circumstances, no intention on the substitute therefor her extrinsic declaration part of the testator is to be sought after to the contrary. If the principle of law that other than the one so expressed. Greenough a will cannot be contradicted by other eviv. Cass, 64 N. H. 326, 10 Atl. 757; Utley v. dence is sound, there is no escape from the Titcomb, 63 N. H. 129; Emery v. Haven, 67 conclusion that her declarations that she inN. H. 503, 35 Atl. 940. Whether the old Ba-tended the word "heirs" should mean nephconian distinction (Bac. Max. reg. 23) between ews and nieces cannot be considered in conlatent and patent ambiguities in wills justi-struing her will. fies the admissibility of parol evidence of The remarks of Prof. Wigmore in his work intention to explain the former, but not the on Evidence (volume 4, § 2471) are pertinent: latter (Pickering v. Pickering, 50 N. H. 349), min Franklin of Boston, my nephew, and there "For example, if there is a devise to 'Benjamay admit of some doubt; but when the is no nephew but one John Franklin, a letter equivocation or ambiguity arises in the ap- of the testator to that nephew declaring an inplication of the testator's language to the tent to devise to him his property would not be subject-matter of the bequest or devise or to ed. What is the reason for it? The reason is considered. This rule has never been questionthe identification of the legatee or devisee, certainly not to be found in any prohibitory some evidence of intention becomes necessary rule of evidence; for such declarations are adto sustain the will. The same necessity may 1725, 1735). Nor is it that these declarations missible under the hearsay exception (ante, 88 exist in the construction of written contracts. are not useful; for, together with others, they In Kimball v. Waterman, 73 N. H. 348, 349, would certainly help to throw light on the ques61 Atl. 595, 596, it is said: tion whether (as in the above example) the name 'Benjamin Franklin' was by the testator habitually applied to designate the nephew. The true reason is found in another rule, already considered, the rule which prohibits setting up any extrinsic utterance to compete with and overthrow the words of a document which solely embodies the transaction (ante, § 2425). The effect of that rule is to deny any legal effect to just such declarations."

"The contract upon its face is unambiguous; but, when an attempt is made to apply it to the facts and circumstances surrounding the parties at the time it was made, it is found that there are two or more lots or areas of pine timber on each tract of land which answer its terms. In other words, there is a latent ambiguity which permits the introduction of oral testimony to show what lot or area of pine on each tract of land was intended to be sold."

*

"The present is not a case of latent ambiguity, for the reasons already stated. When the will comes to be applied, there are found to be two societies; one rightly named and described; the other not. There is then no ambiguity as to the society intended by the will. It is the offer of proof of intent aliunde which creates the doubt, and this is clearly inadmissible, under the rule applicable to such a case." Tucker v. Society, 7 Metc. (Mass.) 188, 210; Trustees v. Peaslee, 15 N. H. 317; Brown v. Brown, 43 N.

H. 17.

This doctrine is strongly indorsed in this state. Perkins v. Mathes, 49 N. H. 107; Ordway v. Dow, 55 N. H. 11; Utley v. Titcomb, 63 N. H. 129; Emery v. Haven, 67 N. H. 503, 35 Atl. 940; Stevens v. Stevens, 72 N. H. 360, 56 Atl. 916; Ladd v. Ladd, 74 N. H. 380, 68 Atl. 462; Shapleigh v. Shapleigh, 69 N. H. 577, 44 Atl. 107.

In Lester's Estate, 115 Iowa, 1, 87 N. w. 654, an attempt was made to show by the testator's contemporaneous declarations that "heirs at law" as used in his will had a peculiar meaning. But the court in holding that the evidence was inadmissible say:

Whether there is an ambiguity calling for explanation is clearly a question of fact, upon which in a given case different courts might reach different conclusions. And much "While it may be true that the word 'heir' is of the apparent conflict in the cases is due subject to explanation or qualification, the exto the inability of all men to weigh the evi- plaining and qualifying language must be found in the instrument itself. dence tending to show an ambiguity in the law,' not explained or qualified by other lanThe term 'heirs at same way. In Stevens v. Underhill, 67 N. H. guage in the will, has a perfectly definite mean68, 71, 36 Atl. 370, 371, the opinion of the ing, which cannot be changed by proof outside court is based upon the finding that "the tes-in support of a proposition which is so well esof the will itself. No authorities need be cited tator's intent is left in doubt," while the dis- tablished." senting opinion proceeds upon a finding that the language of the will is clear, explicit, and unambiguous. See, also, Harris v. Ingalls, 74 N. H. 35, 64 Atl. 727; s. c., 74 N. H. 339, 68 Atl. 34.

Hammond, 16 R. I. 98, 114, 17 Atl. 324, 326,
In making a similar ruling in Wood v.

the court remark:

"The effort is to impose upon the will by extrinsic testimony a meaning which, taking it as

cumstances, it does not express. It is an effort [ an entirely different purpose from that diswhich contravenes the fundamental requirement closed by the clear language of the will. of the law that a will shall be in writing; that is, that it shall be a written expression of the testator's intention."

For other cases of similar import, see Root's Estate, 187 Pa. 118, 40 Atl. 818; Denfield, Petitioner, 156 Mass. 265, 30 N. E. 1018; Forbes v. Darling, 94 Mich. 621, 54 N. W. 385; Willard v. Darrah, 168 Mo. 660, 68 S. W. 1023, 90 Am. St. Rep. 468; Suman v. Harvey, 114 Md. 241, 79 Atl. 197, 47 L. R. A. (N. S.) 540, note g.

In refusing to consider the proffered declarations of the testatrix upon the question of her intention the court committed no error. The former result is affirmed. All concurred.

(254 Pa. 455)

In re RYMAN'S ESTATE.
Appeal of PETTEBONE.

(Supreme Court of Pennsylvania. July 1, 1916.)
TRUSTS 331-CLAIM AGAINST TRUST Es-

TATE-ALLOWANCE.

claimed that the bonds had become part thereof by the deposit, and that the bank held them as trustee ex maleficio.

The following cases referred to in argument do not support the contention that a written document whose meaning is clear as Where the executors of an attorney deposited applied to the circumstances may be contra- with a bank certain bonds under an agreement dicted by proof that such apparent meaning reciting the executors' desire to make restituwas not intended by the parties: State v. Col-client who predeceased him was trustee, and settion of trust property of which the attorney's lins, 68 N. H. 299, 44 Atl. 495; Locke v. Row-ting forth that the bonds were to be held for ell, 47 N. H. 46; Gill v. Ferrin, 71 N. H. 421, the substituted trustee as security for the forth52 Atl. 558; Day v. Towns, 76 N. H. 200, 81 the estate, and the amount due from the attorcoming of the principal fund on the settlement of Atl. 405; Atto v. Saunders, 77 N. H. 527, 93 ney's estate to the trust estate was ascertained Atl. 1037; Winnipisseogee Co. v. Perley, 46 and paid in full, a petition by the executors of N. H. 83; Salmon Falls Co. v. Portsmouth the attorney for an order to the bank to return the bonds was properly allowed over the objecCo., 46 N. H. 249. These are cases of writ-tion of persons interested in the trust estate who ten contracts the terms of which were found to be of doubtful import and extrinsic evidence was admitted to remove the doubt and to give effect to the parties' intention. This was the theory upon which they were decided. Whether everybody would agree that the finding of ambiguity in a given case is correct is immaterial, since it is in each case a preliminary finding of fact, involving no question of law. Other cases where the foregoing principles have been applied to written contracts are Bell v. Woodward, 46 N. H. 315; Meredith Association v. Drill Co., 66 N. H. 267, 20 Atl. 330; Bartlett v. La Rochelle, 68 N. H. 211, 44 Atl. 302; Gill v. Ferrin, 71 N. H. 421, 52 Atl. 558; Eastman v. Association, 62 N. H. 555.

[13] As the words "heirs of my deceased husband" present no difficulty of application, the fact that the testatrix orally gave to them at the time she executed the will a forced and unusual meaning is immaterial upon the question of their interpretation, however important it might be if the question were one relating to the reformation of the will on the ground of mistake. Electric Light Co. v. Jones, 75 N. H. 172, 71 Atl. 871; McIsaac v. McMurray, 77 N. H. 466, 468, 469, 93 Atl. 115, L. R. A. 1916B, 769. It is conceded, however, that the reformation of a will is not within the usual powers of the court. Page, Wills, § 809. Nor is it competent for the court "to make a will for the testator upon the mere conjecture that he may have inadvertently or without full consideration failed to apprehend the force and effect of his language." McAllister v. Hayes, 76 N. H. 108, 110, 79 Atl. 726, 728. Still less can it violate a rule of substantive law by reading into the will language expressive of

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 494; Dec. Dig. 331.]

Appeal from Orphans' Court, Luzerne County.

In the matter of the estate of W. P. Ryman. From a decree requiring the Miners' Bank of Wilkes-Barre to turn over to the executors of W. P. Ryman certain bonds, Jacob S. Pettebone, guardian of Milton B. Streator, a minor, appeals. Affirmed.

Freas, P. J., filed the following opinion in the orphans' court:

The petition of Leslie S. Ryman, one of the executors of W. P. Ryman, recites that his decedent died July 31, 1899; and that by reason of certain transactions between his decedent and S. B. Sturdevant, trustee, under the will of Charles Streator, deceased, he entered into an agreement with said trustee, which is appended in full:

"Whereas, by the last will of Charles Streator probated and of record in Luzerne county in Will Book C, page 551, a certain trust was created wherein S. B. Sturdevant was appointed trustee as will appear of record in the orphans' court of said county at No. 556 of 1895; and

"Whereas, subsequently the entire trust fund amounting to approximately eleven thousand session of William P. Ryman, purchaser of the five hundred dollars ($11,500), came into the posinterests of Charles Streator and of Charlotte Butler, except the $175.00 noted in the addendum; and

"Whereas, by reason of the death of said Ryman, it is now deemed desirable to restore the principal fund to the proper custody of the trustee for the purposes of the trust, which restoration, however, cannot be conveniently effected pending settlement of Ryman's estate:

"Now, therefore, it is agreed that pending such settlement, the executors of the said Ryman will deposit with the Anthracite Savings Bank of

Wilkes-Barre, for the benefit of the trustee, a certain bond, bearing date January 1st, 1890, given by T. F. Ryman, Leslie Ryman, John J. Ryman and Ruth E. Ryman to the said W. P. Ryman in the sum of twenty thousand dollars ($20,000) real debt upon which fifteen thousand dollars ($15,000) remains unpaid, to be held for said trustee as security for the forthcoming of the principal fund upon the settlement of the The answer of Jacob S. Pettebone, guardian said estate, or sooner if directed by the court, of Milton B. Streator, is to the same effect, and this agreement being made without prejudice, adds that the judgment entered against the Ryeither to the right of any person in interest to man executors who intervened in the settlement demand the restoration of the said fund, or to of the trustee's final account was in legal effect the right of said W. P. Ryman's estate to assert a decree of restitution of two items of the trust in answer thereto, that the trust fund became estate, to wit, $300 and $10,000, found in said properly vested in point of law in him, the said proceedings to have been misappropriated in his Ryman by his purchases aforesaid or in any lifetime by said Ryman, and that said proother manner, leaving the questions to be deter-ceedings in no way affect the right of the Streatmined by the court. or heirs to resort to the securities set aside by the agreement of December 25, 1900, to satisfy Streator estate from the trustee. All the parties to the agreement have been served with notice of this proceeding.

"Witness our hands and seals this 26th day the unpaid balance of the amount found due the

was a mere depository without any active duties whatever, and no misconduct on its part has been shown. Any claim the bank may have for compensation may be made at the Ryman audit. The executor also maintains that all the questions raised by the agreement are res adjudicata. This leads us into the Streater's Estate, 241 Pa. 142, 88 Atl. 314.

tee the sum of $229.35 belonging to the life tenant, and the principal sum of $10,531.75 belonging to the Streator heirs. These sums, with interest, the executors paid into court, and thus pro tanto reduced the balance found due from the trustee's administrator. The court sustained the exceptions to the trustee's account and surcharged the trustee with assets not accounted for; but refused to find that Ryman had received these assets except to the extent stated. The failure of the court to find that Ryman had appropriated other assets of the Streator estate which the trustee had received was expressly assigned as error in Streater's Estate, 241 Pa. 142, 88 Atl. 314.

The court awarded the relief prayed for. Jacob S. Pettebone, guardian of Milton B. Streator, a minor, appealed.

S. B. Sturdevant was appointed trustee in the estate of Charles Streator, deceased, in 1885, and died in 1909. His administrator was cited to file an account for the deceased trustee, which he did in 1911. To this account exceptions were filed by certain Streator heirs and were to the effect that the trustee had received certain assets not accounted for, and that all the assets It was sought to charge Ryman with every of the trust estate had been misappropriated by item of the trust estate, except $175, and each W. P. Ryman in his lifetime, except $175. item was the subject of a separate finding. The While the depositions were being taken, the agreement which is now under consideration was executors of W. P. Ryman, deceased, came in not offered in evidence in the Streator estate, and intervened and thereafter participated in but the substance of it appears in the testimony. all the proceedings. The exceptions to the trus- The parties knew of it and might have offered tee's account were sustained as against the ac-it. In the Streator estate the final account has countant and a surcharge of $4,494.21 was en- been confirmed and the audit closed, and all the tered, and the account as amended and restated heirs have accepted partial distribution of the by the court was confirmed absolutely. The money paid in by the Ryman executors. The accourt at the same time found that the Ryman count could now be reopened only by petition for executors, interveners, were indebted to the review, and no cause has been shown which trustee for the use of the life tenant in the sum would warrant the court in allowing it. Hawof $229.35, and to the Streator heirs in the sum kins' O. C. Practice, par. 190. If the bonds deof $10,531.75. From these findings two of the posited by the executor thereby became the Streator heirs appealed, and in Streater's Es- property of the trustee, and we do not think tate, 241 Pa. 142, 88 Atl. 314, the appeals were they did, then the Streator heirs should have exdismissed. Later the Ryman executors paid in- cepted to their omission from the trustee's final to court the amounts above stated, which had account, which they did not do, although they been found due the Streator estate from the Ry: knew of the agreement. The Streator heirs man estate, with interest. The first and final have had their day in court, and all their rights account of the deceased trustee was duly audited under the agreement have been adjudicated, and in 1915, and at the said audit the counsel for they have accepted the fruits of that adjudicathe Streator heirs stated that as the fund arose tion. What the rights of the trustee's surety from two separate sources, a real estate fund may be at the Ryman audit we are not now and a personal property fund, there should be called upon to determine. separate distributions of the two funds, because the real estate fund was all in court. The audit was closed, and in making distribution the request was followed. All the Streator heirs, including J. S. Pettebone, guardian of Milton B. Streator, respondent herein, by the hand of their counsel, receipted upon the docket for their respective distributive shares. The fund so distributed was paid into court by the Ryman executors, and the trustee's estate is unable to pay the balance of the amount found due from the lant. Wm. C. Price, of Wilkes-Barre, for aptrustee upon settlement of his account. The pellee. Streator heirs and the surety of the trustee hope to collect this balance of $4,844.50, with inPER CURIAM. The bonds which the terest from June 19, 1911, through the agreement quoted above in full. There is at present court below ordered the Miners' Bank of no trustee in the Streator estate, for the trust Wilkes-Barre to turn over to the executor of has terminated, and there is no administrator d. W. P. Ryman, deceased, were deposited with b. n. c. t. a., and we think none is required. In the usual course of administration claims it by him to secure the payment of a claim against a decedent are heard at the audit held made by the Streator estate against the Ryin his estate, but wherever heard, the claim man estate. The amount found by the court can finally be allowed only on distribution in the below to be due to the former by the latter debtor's estate. This course was departed from when the executors of the Ryman estate came in has been paid by Ryman's executor, and acand intervened in the hearing of exceptions to cepted by the Streator heirs, this appellant the final account of the trustee in the Streator having, through his attorney, receipted for estate. The said account was regularly advertised and hence every person who was interest- the share of his ward. The bonds deposited ed in the fund had notice. It being a final ac- with the bank for a special purpose never count any omission of assets was the proper belonged to the Streator estate, and those subject of exceptions. It was maintained by ex- interested in it do not now have the shadow ceptants that Ryman had illegally absorbed as- of a claim upon them as security for what sets of the trust estate, and Ryman's executors came in and asked to be made parties. Watts' may be due from the estate of S. B. SturdeEstate, 158 Pa. 1, 27 Atl. 861. The court, vant, the deceased insolvent trustee. The therefore, had jurisdiction of the subject-matter, bank is not complaining of the decree, and, the trustee's administrator, the Streator heirs as it does not lie in the mouth of the appeland the Ryman executors, who were all the par

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER, and WALLING, JJ.

J. E. Jenkins, of Wilkes-Barre, for appel

ties in interest. In disposing of the exceptions lant to complain of it, his appeal is dismissed

[2] Under these circumstances, we are of the [] The defendants' answer asks that the opinion that we cannot grant the injunction plaintiffs' bill be dissolved for want of proper prayed for, and that the bill should be dismissand necessary parties thereto, because the paved: (1) Because said Standard Bitulithic Coming contractor whose compensation was to be pany, the paving contractor aforesaid, has not paid out of the proceeds of the collection of been brought upon the record as a party defendthese claims would be injured by the granting ant in this case; (2) because the plaintiffs have of the injunction prayed for. This objection, which was insisted upon by defendants' counsel at the hearing in this case, goes to the jurisdiction of the court, and, if sustained, would be fatal to any further proceedings in this case on the present state of the record. It is a well