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ing to the effect given to it in Rachfield v. Careless, will shut out all access to argument from external circumstances. Finally, in Trimmer v. Bayne', the doctrine received its full confirmation from the present Chancellor, who declared the sum and sense of all the authorities to be, that all parol declarations, whether made before, or at, or after the making of the will, were admissible to rebut presumptions, though they are not all alike weighty and efficacious. Whether they consist of conversations with people who have nothing to do with the question, of declarations provoked by impertinent inquiries, or in whatever form they arise, they are all evidence, though intitled to very different credit and weight, according to times and circumstances, as will be further explained in the succeeding section.
Testator's Declarations, how far Evidence.
IN the case of Druce v. Dennison, Lord Eldon observed, that formerly the courts were very jealous of admitting evidence of declarations by the testator, except such as were made by him about the time of
2 P. Wms. 159.
¢7 Vez. jun, 518.
Contemporary making the will; and towards the conclusion of his must be attend- decree in that case, he remarked, that in receiving
parol evidence, it gave him great satisfaction to find, that it was contemporary with the will. So in Nourse v. Finch“, Buller J. expressed a stronger opinion against admitting declarations which did not take place at the time of making the will. And the further we go back in tracing this disposition to reject parol evidence of declarations made before or after the will, the more strongly we find it expressed. Thus, Lord Hardwicke observed', that the time of making the declarations was very material, and no regard ought to be paid to declarations made not at the time of making the will. Thus, again, in the case of the Duke of Rutland v. the Duchess of Rutland", it was said by Lord Macclesfield, that allowing parol evidence was exceedingly dangerous, and not to be done in the case of discourses made at a different time from that of making the will. And, again, by Tracy J.' it was said, that no regard ought to be paid to expressions before or after the making of the will, which possibly might be used by the testator, on purpose to disguise what he was doing, or to keep the family quiet, or for other secret motives or inducements.
The positions of the present Chancellor in Trimmer v. Bayne are to be read with discrimination ; what he there observes as to the general admissibility of parol declarations, is applicable and was applied only to the question, whether an executor being also a legatee in ą will is a trustee for the next of kin, or beneficially entitled to the residue as undisposed of; which is a question of rebutting an equitable presumption ; as has been explained in another place. His lordship then lays down the affirmative with respect to the general admissibility of parol declarations to repel this presumption of equity in favour of the next of kin, with the following important distinctions, viz. that in the degrees of such evidence, contemporary declarations are clearly of the greatest weight-next to such contemporary declarations, those which are made afler the making of the will are the most efficacious, for, a declaration after the will as to what the testator had done, is entitled to more credit than one before the will as to what he intended to do, for that intention may very well be altered; but he knows what he has done, and is much more likely to speak correctly as to that than aş to what he proposes to do.
a 1 Vez. jun. 359.
. 2 P. Wms. 215.
01 Vez, 324. de Vern. 625.
But with these and perhaps other distinctions, such But with diffeparol declarations by a testator are all alike admissible weight all these —they are to be decided upon by their weight—but admisible. by their nature they are alladmissible. The caution, however, with which all declarations by a testator should be admitted, is well pointed out in the same judgment in Trimmer v. Bayne, viz. that these declarations may be made with a view to delude, as being thought a necessary artifice to keep the peace of fami
• Vide Trimmer u. Bayne, 7 Vez. jun. 519.
lies. In Trimmer v. Bayne, it was one of the grounds of the judgment, that the declarations there stated to have been made, and offered as evidence, had an evident
purpose of deceiving the person making the inquiry.
The instance most frequently chosen as the example of the ambiguitas latens, is that of a devise to a person of the same name with another, without any specific description appearing upon the face of the will, to designate the real object of the testator's bounty. The case put by Lord Hobart, was that of a devise by a testator to his son John, having two sons of that name ; and the same Judge having a little above decisively declared, that a testator's intent must be expressed in a will written, that it may
be certain to the Court, observed on the case just put, that an averment might make this, i. e. who was designed by the testator, certain. The case and the comment contain together a true description of the ambiguitas latens, to constitute which, there
• See 6 Rep. 68. Lord Cheyney's case, Hob. 32. Counden v. Clark, 3d point, and 1 Salk. 7. Lepcot v. Brown.
ought to be a positiveness and certainty of verbal expression becoming ambiguous in sense by the discovery of a matter not appearing in the instrument. This is the ambiguity latent, which, as it is created by facts, so is it removeable by a further Investigation of facts.
the names of
The names of persons appointed to take under of mistakes wills', have on the same principle been set right by persons. parol evidence, where both the christian and surname have been mistaken. In such case no words are supplied or substituted, but the mistaken appellation in the instrument is applied to the person really intended by it, and the names of persons having no intrinsic meaning, the will is rectified without any alteration of the sense.
There may be a distinction, indeed, between such Name mistaken,
where the name mistaken use of a name, which, though a wrong used happens to appellation of the object of the testator's bounty, son in being, and happens to belong to an existing person within the in the testators testator's knowledge and possible contemplation, and contemplation. that of a name under which there is nobody to claim as coming within its literal description. Thus in Beaumont v. Fell', where the point arose upon a bequest in a will to Catherine Earnley, and the name of the person who claimed the legacy as the real object intended to be benefited was Gertrude Yardley,
And see Hodgeon and Caldecot ». Fitch and An', 2 Vera, 593.
. 2 P. Wms, 141.