rejection of the erroneous part, in every respect the same as those where a person or thing not in existence is described, and to reject the description in the writing and to admit parol evidence would be contrary to the rule which requires an indication on the face of the instrument. (1) One of these rules then is wrong; but the rule, requiring an indication to remain on the face of the instrument, is that which is supported by the highest and latest authority; and therefore, it seems, the other must be considered as overruled.

a

Where an instrument uses a proper term as designating person whom it is intended to affect, and no such person is to be found, that proper name is altogether insensible, and it seems that there is no distinction between such a case, and one in which an insensible word is used as designating any other subject matter to which the instrument relates, ex. gr. in a will, the thing devised; in the first case, the instrument is intended to point out some person,-in the second, some thing; but in both cases the word used, with all the assistance that evidence can give as to the meaning of the word, is incapable of conveying an intention. If this be so, the decision of Sir John Leach, on one point in Goblet v. Beachey, (2) cannot, it seems, be reconciled with Beaumont v. Fell. Nollekens, the sculptor, by a codicil to his will, desired that "all the marble in the yard, the tools in the shop, bankers, mod, (3) tools for carving," (and certain other things,) should be the property of the plaintiff. Parol evidence of a female servant of the

(1) It cannot be said, in answer to this argument, that the rule as to falsa demonstratio applies only to cases where the erroneous part does describe some person or thing which is in existence. It was not so in the great majority of cases considered as falling within that class; it was not so in Selwood v. Mildmay, Goodtitle v. Southern, or Day v. Trigg; the cases cited in Miller v. Travers, as being within it.

(2) 3 Simon, 26. There is a fuller report in Mr. Wigram's Treatise on the Admission of Extrinsic

Evidence, from which it appears that the Vice-Chancellor said, "that he had found no authority which exactly governed the case; but that upon principle he was satisfied, that to admit the evidence of Mary Holt (the servant), respecting the testator's declaration, would be to repeal the Statute of Frauds." The ultimate decision of the Vice-Chancellor, 2 Russ. & Mylne, 624, was reversed on appeal; but this point was not touched by the reversal.

(3) There was a small mark at the end of this word.

testator was tendered, who was the attesting witness to the codicil in question, that, before she subscribed her name, she read over the codicil in the presence and hearing of the testator, and that when she came to the word "mod," she asked the testator what he meant by it, and that he replied "models ;”(1) Sir John Leach held, (2) that her evidence was clearly inadmissible. (3)

To ascertain whether a case presents latent ambiguity or Evidence of erroneous description, a comparison must necessarily be in- circumstances. stituted between the description in the instrument, and the

subject matters which, it is contended, are sufficient to satisfy

it. (4) To do so with certainty, and to make the decision Sense of words of the Judge, in expounding an instrument, independent of the in instrument.

accidents of his greater or less knowledge of the sense of the words used by the writer, and of the facts to which they may be applicable, it is evidently necessary that parol evidence should be admitted, to shew what is the sense of the words used, and what are the facts to which they may be applicable. With this view, evidence must be admissible, of all the circumstances surrounding the author of the instrument.

In the simplest case that can be put, namely, that of an instrument ai? on the face of it to be perfectly intelligible, inquiry m made for a subject matter, (1) to satisfy the description. If in the description of an estate, it is designated as Blackacre, there must be evidence to shew what field it is that is own by that name. (2) When there is a devise of an estate purchased of A., or of a farm in the occupation of B., it must be shewn 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. (3)

It is evident that circumstances must determine, whether a particular person or thing can be comprehended within the terms of the description in a writing. By a will of a musical instrument maker, giving his household furniture, a piano-forte would, or would not pass, according to the circumstance of it's being in his warehouse or in his dwelling-house. (4)

(1) By this term is here understood every thing to which the instrument relates, as well the person with, or to whom the deed or devise is made, as the thing which is devised, given, &c.

(2) By Coleridge, J., in Doe v. Holtom, 4 A. & E. 81, and see Doe dem. Gore v. Langton, 2 B. & Ad. 680, a case of construction dependant upon a view of the whole will.

(3) 1 Merivale, 653, by Sir W. Grant. Whether parcel or not is always matter of evidence, by Buller, J., 1 T. R. 701. R. acc. Doe dem. Beach v. The Earl of Jersey, 3 B. & C. 870.

(4) In Le Farrant v. Spencer, 1 Ves. Sen. 97, a captain of an East India ship devised "all his house

hold furniture, linen, plate, and apparel whatsoever." The testator died possessed of plate, India, and dimity goods, and some rough diamonds. Lord Hardwicke directed a reference to the Master "to distinguish what goods he had for his own domestic use, and what for trade, or merchandize, without which," his Lordship said, “it was impossible to determine of the extent of the bequest." See also Kelly . Powlet, Ambler, 610. Pratt v. Jackson, 1 Bro. P. C. 222. Carr v. Carr, 1 Mer. 541. In Doe dem. Gore v. Langton, 2 B. & Ad. 695, Lord Tenterden, in delivering the judgment of the Court, which decided that the words "belonging to" might be interpreted

Though it is now to be considered as settled, by the case of Rose v. Bartlett, (1) that a testator, having freehold and leasehold property in the same place, by a devise of his lands and tenements in that place, passes only his freehold lands, or by a devise of his messuages lands tenements and hereditaments in that place to uses applicable only to freehold property, (2) may, in general, be considered as intending to devise only his freehold property, yet a different construction may be put upon the will, and the leasehold will pass, if a different intention can be collected from the circumstance the leasehold property being blended in enjoyment with eehold, although the limitations be to uses strictly applicable to freehold property only. (3)

f

In a case where there was a bequest to "Mrs. G." without any other description, it was referred to the Master to inquire who Mrs. G. was. (4) Evidence also is admissible, to shew that

sprung. All these applications of the word, and some others, are found in common parlance; and, in the case of a will, we must endeavour to ascertain the meaning, in which the testator employed the word, by considering the circumstances and situation in which he was placed, the object he had in view, and the context of the will; and applying these considerations to the present case, I am of opinion, that in the words 'my family,' the testator clearly intended to comprise his wife."

to mean " situate in," said, "In the
decided cases in which these words
have occurred, and wherein it was
held, that property in question did
not pass, the character of the property
was such as not to admit this inter-
pretation of the words." In Black-
well v. Bull, 1 Keen, 176, a testa-
tor directed, that his business of a
cheesemonger should be carried on
by his "wife Sarah Bull, and his
son John Bull, jointly for the mu-
tual benefit of his family." "The
testator died shortly after the date
of his will, leaving his widow Sarah
Bull, and the said John Bull, and
five other children infants surviving
him. It was held that the widow, as
well as the children, were comprised
in the word "family." Lord Lang-
dale, in giving his judgment, said,
"Under different circumstances
it (the word, family,) may mean a
man's household, consisting of
himself, his wife, children, and ser-
vants; it may mean his wife and
children, or his children excluding
his wife; or in the absence of wife
and children, it may mean his bro-
thers or sisters, or his next of kin,
or it may mean the genealogical
stock from which he may have 148.

(1) Rose v. Bartlett, Cro. Car. 292, cited by Sir John Leach, in Hobson v. Blackburn, 1 M. & K. 579.

(2) Thompson v. Lady Lawley, 2 B. & P. 303.

(3) By Sir John Leach, Hobson v. Blackburn, 1 M. & K. 571. R. acc. Goodman v. Edwards, 2 M. & K. 759. Newton v. Lucas, 6 Sim. 54, and on appeal, 1 M. & K. 391. See also the cases of Lowe v. Lord Huntingtower, and Standen v. Standen, cited and commented on in the judgment in Miller v. Travers, supra, 722-3.

(4) Abbott v. Massic, 3 Ves.

rejection of the erroneous part, in every respect the same as those where a person or thing not in existence is described, and to reject the description in the writing and to admit parol evidence would be contrary to the rule which requires an indication on the face of the instrument. (1) One of these rules then is wrong; but the rule, requiring an indication to remain on the face of the instrument, is that which is supported by the highest and latest authority; and therefore, it seems, the other must be considered as overruled.

Where an instrument uses a proper term as designating a person whom it is intended to affect, and no such person is to be found, that proper name is altogether insensible, and it seems that there is no distinction between such a case, and one in which an insensible word is used as designating any other subject matter to which the instrument relates, ex. gr. in a will, the thing devised; in the first case, the instrument is intend to point out some person,-in the second, some thing; bt in both cases the word used, with all the assistance that ev dence can give as to the meaning of the word, is incapable conveying an intention. If this be so, the decision of Sr John Leach, on one point in Goblet v. Beachey, (2) cannot, i seems, be reconciled with Beaumont v. Fell. Nollekens, the sculptor, by a codicil to his will, desired that "all the mar ble in the yard, the tools in the shop, bankers, mod, (3) tools for carving," (and certain other things,) should be the property of the plaintiff. Parol evidence of a female servant of the

(1) It cannot be said, in answer to this argument, that the rule as to falsa demonstratio applies only to cases where the erroneous part does describe some person or thing which is in existence. It was not so in the great majority of cases considered as falling within that class; it was not so in Selwood v. Mildmay, Goodtitle v. Southern, or Day v. Trigg; the cases cited in Miller v. Travers, as being within it.

(2) 3 Simon, 26. There is a fuller report in Mr. Wigram's Treatise on the Admission of Extrinsic

Evidence, from which it apper" that the Vice-Chancellor să "that he had found no arther? which exactly governed the case. but that upon principle he satisfied, that to admit the evidenc of Mary Holt (the servant, specting the testator's declaratia would be to repeal the Statute Frauds." The ultimate decision of the Vice-Chancellor, 2 Russ & Mylne, 624, was reversed on peal; but this point was not touched by the reversal.

(3) There was a small mark at the end of this word.