for I cannot enter upon the construction of the will, till I have satisfied myself whether it is my duty to look at the will only, or whether I can consistently call in aid the amount of the property. I feel that in endeavouring to come to a decision, the mind will advert to that circumstance, and is liable to be biassed by it; and I will not, therefore, venture upon the consideration of the subject, till I can ascertain whether anything beyond the will may be looked at. I have understood the general rule to be, that extrinsic evidence is only to be let in in some particular excepted cases; that when there is a latent ambiguity raised by extrinsic circumstances, it may be got rid of in the same manner; but not when the ambiguity is patent, arising on the face of the will; there the general rule is, that it is to be construed by its contents only, although in the particular case the Court might be desirous of having recourse to other considerations. Suppose the will to be in terms admitting of no doubt, it is clear that the amount of the property could have no influence on the construction. If a man worth 1,000l. were to give to twenty people 1,000l. each, it might be said that he was insane; but it could not be argued from the deficiency of assets that he must have meant something else; the legatees must abate in proportion. The great difficulty is, whether we may resort to extrinsic circumstances, when the terms are not altogether free from doubt, to assist in disposing of a patent ambiguity. If the extrinsic evidence had been of declarations at the time of making the will, on general principles it could not be received. Many acute and ingenious observations have been made upon the will itself; if you could in that manner put a construction upon it, that would be consistent with all sound principle; but if the reasoning from the language of the will only goes the length of raising doubts, can you then let in the evidence? It is a mixed argument, partly upon the words and partly upon the extrinsic matter. Therefore, I asked of the counsel, what the construction would be, if the property had been sufficient. Would it not then have been said, that notwithstanding these nice distinctions and critical observations, they are all gifts of annuities? I am, therefore, unwilling to give much weight to those arguments, as I feel that I should not be influenced by them if the property were larger. Extrinsic evidence may be admitted as to the nature of the thing described; but here the bequests are not specific; they are to be COLPOYS v. COLPOYS. [ *456 ] [457] COLPOYS V. COLPOYS. March 11. [ 459 ] [ *460 ] satisfied out of the general property; the quantity of Long Annuities that the testator was possessed of is, therefore, no guide. It comes to this, whether the amount of the property is to be regarded in construing the will? Is it to be construed in one way for a rich man, and in another for a poor man? Is the construction to vary from time to time with the state of the testator's circumstances? He may be a rich man at one time, and a bankrupt at another; are we to inquire how he was situated at the times of different republications? His Honour concluded with expressing a wish to have the case re-argued with reference to the question, whether the consideration of the state of the testator's property was admissible. Subsequently to the argument, another codicil was found among the testator's papers, and was proved. It contained (amongst other things) these words, "My banker's book will fully explain all my money concerns." The book referred to contained regular entries of the dividends upon his Long Annuities and other funded property. The case was this day re-argued. For the defendants: [Fonnereau v. Poyntz, Selwood v. Mildmay (1) and Barksdale v. Gilliat (2) were cited.] For the plaintiffs: [Hinchcliffe v. Hinchcliffe (3) and other cases were cited.] THE MASTER OF THE ROLLS, after stating the will, and commenting upon the several parts of it, proceeded as follows: This is the will, and the first thing to be observed, is, *that the will refers to the fund in terms not strictly and technically applying to it. It is noticed in Fonnereau v. Poyntz, that the proper expression is "interest or share in Long Annuities" (4). The holders have no capital, or interest, or dividend, but are entitled to an annuity only. The other funds are distinguished by being permanent, consisting of capital with interest payable upon it. Lord THURLOW, referring to this, says, "the case is, that there is no such fund as is described by the will. When the words used by a testator are sensible, they must be taken as they stand: if not, the construction must be taken aliunde." It is a nicety, but it is the reasoning of Lord THURLOW. He thought that, if the bequest had (1) 4 R. R. 1 (3 Ves. 306). (2) 18 R. R. 139 (1 Swanst. 562). (3) 4 R. R. 89 (3 Ves. 516). been in strict and technical words, he should have been bound by it; but the language not applying strictly, and therefore being capable of two interpretations, entitled him to let in the parol evidence. The case of Fonnereau v. Poyntz was three times before Lord Thurlow. At first, he thought the state of the property material to influence his decision, and directed enquiries; when it came back upon the report, he thought the language sufficiently certain, and that he was bound to adhere to it; but, on the re-hearing, he changed his mind, and returned to his original impressions, that he might look at the state of the property, and allow it to operate on the construction. "There is no doubt," he says, "if the word stock had been left out, but the meaning would be, that the sum of 500l. was to be disposed of in Long Annuities, and to make a produce, and that produce to accumulate until the legatee should attain twenty-one. This being the doubtful interpretation upon the face of the will, the question arises, whether the state of the testatrix's fortune is not *applicable to the construction." He adds, that, "it is perfectly inconsistent to say, that she could mean to give ten times more than she was worth in legacies;" and that he should let in the evidence, "not to controul the bequests which the testatrix has made in words themselves distinct, nor to controul a bequest which she had made of a subject which she had accurately described; but because the words she has used in the description are, upon the whole of the context, uncertain whether she intended it as the interest of a gross sum to accumulate, or 500l. per annum." He decided that he was bound to consider the amount of the property, and then draw his inference from the enormous disproportion of the bequest, calculated as Long Annuities. Without then going through all the authorities on the subject of latent and patent ambiguities, it being admitted, that this case has stood the test of time, we must take it to be right, and the question will be, whether it is similar to the present, and furnishes a rule for it. Lord ELDON, who was himself counsel in Fonnereau v. Poyntz, recognizes its authority in Druce v. Denison (1), explaining the ground on which it was decided to be, that the testatrix had given that which was of no known denomination of stock, and states that it did not carry the cases upon parol evidence farther than they had gone before. Lord ALVANLEY in Selwood v. Mildmay (2), (1) 6 Ves. 401. (2) 4 R. R. 1 (3 Ves. 306). COLPOYS ተ. COLPOYS. [ *461 ] COLPOYS v. COLPOYS. [462] [ *463 ] mentions it with approbation, and it was acted upon in Finch v. Inglis (1); the case of Attorney-General v. Grote (2) as far as it goes is a recognition of it. The authority of that case may, therefore, be considered as established. Does it then differ from the present? In some respects it is stronger, in others not. The word "stock" being used, made it look more like a bequest of stock than of money; that word is not to be found here. Again, there all the bequests were uniform. But this case is marked by the striking circumstance, that he sometimes gives gross sums of Long Annuities, and sometimes annuities of Long Annuities. Are we to suppose, that he means the same thing by these different expressions? In Fonnereau v. Poyntz the distinction, that the interest should accumulate was much relied on; interest upon an annuity being an absurdity; that is a feature which belongs to this case also, and it is besides characterized by the testator dividing his bequests into annuities and legacies, and distinguishing between them. With respect to the case of Stafford v. Horton (3) it is enough to say, that the bequest was determined, whether correctly or not, to be specific. It cannot, therefore, bear upon the present, where it is agreed not to be specific. The Attorney-General v. Grote is evidently distinguishable. The testatrix was possessed of 3851. per annum, Bank Long Annuities; the annuities given amounted together to about that sum; the late MASTER OF THE ROLLS thought it clear, that she was doling out portions of her Long Annuities; there being nothing to show any inadequacy; and in determining it he professed not to quarrel with Fonnereau v. Poyntz. Thus then, that case stands in point of authority, and if my private opinion were different I should not think myself at liberty to oppose it to such a decision: *it is a great relief to me to have such a guide, leading safely to the conclusion, that when the testator speaks of annuities he means annuities, and that when he speaks of sums he means sums only; and that though he has not with the accuracy of a lawyer used the words out of his Long Annuities, or, in Long Annuities, yet that he meant, that all should be raised out of his property in that fund. I would add, that I hope it will not be supposed that I dissent from the case of Fonnereau v. Poyntz; nor that I agree to the opinion, that parol evidence is never to be let in, except in cases (3) 1 Br. C. C. 482. (1) 3 Br. C. C. 420. (2) 34 R. R. 183 (3 Mer. 316). where there is a latent ambiguity. The admission of extrinsic circumstances to govern the construction of a written instrument, is in all cases an exception to the general rule of law, which excludes every thing dehors the instrument. It is only from necessity, and then with great jealousy and caution, that Courts, either of law or equity, will suffer this rule to be departed from. It must be the case of an ambiguity, which cannot otherwise be removed, and which may by these means be clearly and satisfactorily explained. This is always permitted in the case of a latent ambiguity, which not appearing on the face of the instrument, but arising entirely from extrinsic circumstances, may always be removed by a reference to extrinsic circumstances. In the case of a patent ambiguity, that is one appearing on the face of the instrument, as a general rule a reference to matter 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. The books are full of instances sanctioned by the highest authorities both in law and equity. When the person or the thing is designated on the face of the instrument, by terms imperfect and equivocal, admitting either of no meaning at all by themselves, or of a variety of different meanings, referring tacitly or expressly for the ascertainment and completion of the meaning to extrinsic circumstances, it has never been considered an objection to the reception of the evidence of those circumstances, that the ambiguity was patent, manifested on the face of the instrument. When a legacy is given to a man by his surname, and the Christian name is not mentioned; is not that a patent ambiguity? Yet, it is decided, that evidence is admissible. So where there is a gift of the testator's stock, that is ambiguous, it has different meanings when used by a farmer and a merchant. So with a bequest of jewels; if by a nobleman, it would pass all; but if by a jeweller, it would not pass those that he had in his R.R.-VOL. LIII. 4 COLPOYS v. COLPOYS. [ *464 ] |