Travers. will, of the fact of their being married or unmarried, and the Miller v. like for the purpose of ascertaining the true construction of the will,) such evidence, it is to be observed, is not admitted to introduce new words into the will itself, but merely to give a construction to the words used in the will, consistent with the real state of his property and family; the evidence is produced to prove facts, which, according to the language of Lord Coke, in 8 Rep. 155, stand well with the words of the will.' Standen. "The case of Standen v. Standen, (1) decides no more, than Standen v. that a devise of all the residue of the testator's real estate, where he has no real estate at all, but has a power of appointment over real estate, shall pass such estate over which he has the power, though the power is not referred to. But this proceeds upon the principle, that the will would be altogether imperative, unless it is taken that, by the words used in the will, the testator meant to refer to the power of appointment. "The case of Mosley v. Massey and others, (2) does not appear to bear upon the question now under consideration. After the parol evidence had established, that the local description of the two estates mentioned in the will had been transposed by mistake, (the county of Radnor having been applied to the estate in Monmouth, and vice versa,) the Court held that it was sufficiently to be collected, from the words of the will itself, which estate the testator meant to give to the one devisee, and which to the other, independent of their local description: all, therefore, that was done, was to reject the local description, as unnecessary, and not to import any new description into the will." The cases before mentioned of Selwood v. Mildmay, (3) Goodtitle v. Southern, (4) and Day v. Trigg, (5) are then cited (1) 2 Ves. jun. 589. (2) 8 East, 149. (3) 3 Ves. jun. 306 (4) 1 M. & S. 299. A A A 2 Mosley v. Massey. Miller v. Travers. Hunt v. Hort. as ranging under the head falsa demonstratio non nocet, enough appearing "upon the will itself to shew the intention, after the false description is rejected." The Chief Justice proceeds: "But neither of these cases afford any authority in favour of the plaintiff; they decide only that, where there is a sufficient description in the will to ascertain the thing devised, a part of the description which is inaccurate may be rejected, not that any thing may be added to the will; thus following the rule laid down by Anderson, C. J., in Godb. Rep. 131 :—' An averment to take away surplusage is good, but not to increase that which is defective in the will of the testator.' "On the contrary, the cases against the plaintiff's construction appear to bear more closely on the point. In the first place, it is well established, that where a complete blank, is left for the name of a legatee or devisee, no parol eviBlank in a will. dence, however strong, will be allowed to fill it up as intended by the testator: as in Hunt v. Hort, (1) and in many other cases. ter. "Now the principle must be precisely the same, whether it is the person of the devisee, or the estate or thing devised, which is left altogether in blank. And it requires a very nice discrimination to distinguish between the case of a will, where the description of the estate is left altogether in blank, and the present case, where there is a total omission of the estates in Clare. Doe v. Chiches In the case of Doe d. Oxenden v. Chichester, (2) it was held by the House of Lords, in affirmance of the judgment below, that in the case of a devise of my estate of Ashton,' no parol evidence was admissible to shew that the testator intended to pass not only his lands in Ashton, but in the adjoining parishes, which he had been accustomed to call by the general name of his Ashton estate. The Chief Justice of the Common Pleas, in giving the judgment of the Judges in that case, says, 'If a testator should devise his lands, of or in Devonshire or Somersetshire, it would be impossible to say, you ought to receive evidence that his intention was to devise lands out of those counties.' Lord Eldon, in the same case, had stated in substance the same opinion. The case so put by Lord Eldon and by the Chief Justice is the very case now under discussion. "But the case of Newburgh v. Newburgh, decided in the Newburgh v. House of Lords on the 16th of June 1825, appears to be in Newburgh. point with the present. In that case the appellant contended, that the omission of the word 'Gloucester' in the will of the late Lord Newburgh proceeded upon a mere mistake, and was contrary to the intention of the testator at the time of making his will, and insisted that she ought to be allowed to prove, as well from the context of the will itself as from other extrinsic evidence, that the testator intended to devise to her an estate for life as well in the estates in Gloucester, which was not inserted in the will, as in the county of Sussex, which was mentioned therein. "The question whether parol evidence was admissible to prove such mistake, for the purpose of correcting the will and entitling the appellant to the Gloucester estate, as if the word Gloucester' had been inserted in the will,' was submitted to the Judges, and Lord Chief Justice Abbott declared it to be the unanimous opinion of those who had heard the argument, that it could not. "As well, therefore, upon the authority of the cases, and more particularly of that which is last referred to, as upon reason and principle, we think the evidence offered by the plaintiff would be inadmissible upon the trial of the issue, and that it would therefore be useless to grant the issue in the terms directed by the Vice Chancellor." It is remarkable, that the case of Beaumont v. Fell is not the subject of direct comment in this judgment; it has, however, acquired some increase of authority by the approval of it in other cases. In Thomas v. Thomas, (1) Lord Kenyon said, "in addition to the cases that were cited, another in Peere Williams might have been referred to, where the name of the legatee was mistaken; the testator gave a legacy to Catherine, it turned out that there was a person whom he frequently called Gatty, and not according to her real name, which was Gertrude; and when parol evidence of it was received, it left no doubt that the testator meant Gatty." The other judges made no comment on this case. Soon after the decision of Thomas v. Thomas, Lord Kenyon again made Beaumont v. Fell the subject of comment. "Where extrinsic circumstances let in by parol testimony, explaining the situation of the testator's family and of the legatee's, introduce a doubt of the testator's intention, the same kind of evidence, that introduced the doubt, may be admitted to explain it. On that proceeded the case, that I mentioned on a late occasion, of Beaumont v. Fell, where a legacy was given by the will to Catherine Earnley, there being no such person in existence; there was no ambiguity on the face of the will, but the latent ambiguity was introduced by extrinsic evidence, and the same kind of evidence also shewed, that there was a person of the name of Gertrude, whom the testator called Gatty, which name the person who drew the will mistook for Katty; in that case, therefore, as parol evidence was admitted to shew the latent ambiguity, parol evidence was also admitted to explain it." It is perfectly clear, from the language of the observations made in these cases, that Lord Kenyon did not regard Beaumont v. Fell as ranging within the second class, referred to in the judgment in Miller v. Travers, of cases of description true in part and false in part; and, therefore, to meet that learned Judge's reasoning in support of it, it is not necessary to inquire, how far the judgment in Miller v. Travers overrules it, considered as a case of falsa demonstratio. The same view of it is taken by Sir James Mans (1) Cited, supra, 718. 'field in Doe v. Oxenden, (1) "I need not particularize the cases of devises, where there were two persons of the same name, or where the name, by which property was devised, applied equally to two estates. (2) Such was the case in Peere Williams, of a devise to Gertrude Yardley, by the name of Catherine Earnley, where there was no such person as Catherine Earnley; and the case in Ambler, (3) of legacies to John and Benedict, sons of John Sweet; the testator had two sons, the name of one was Benedict, but the name of the other was James"-" It is not expressly said in any of these cases, that it was necessary to receive the evidence, in order to give effect to the will, which would not operate without such evidence. But although this is not said, yet the rule seems to hold. It will be found, that the will would have had no operation, unless the evidence had been received." The learned Judge afterwards says, "it is safer not to go beyond the line," of cases in which the will without the explanation would have no operation. It is remarkable, that the authority of the case of Beaumont v. Fell has applied to a greater extent, than (1) Supra, 717. (2) It cannot be urged, that the distinction, between an inaccurate description and an ambiguity, was not present to the mind of the Judge; in argument, the position of Lord Hardwicke, in Ulrich v. Lichfield, 2 Atk. 372, was cited, "I do not know, that upon the construction of a will, courts of law or equity admit parol evidence, except in two cases, first, to ascertain the person, where there are two of the same name; or else, where there has been a mistake in the christian name, or surname.. On this authority, Sir James Mansfield remarked, "that the rule here laid down was certainly too narrow; for in case the testator had possessed no estate at Ashton, the rule is, that from whatever cause the ambiguity proceeds,-whether from a misdescription of the estate, or |