is created by de it was first shewn by her, and admitted, that no person called Catherine Earnley claimed the legacy, and then evidence was offered to shew that the scrivener, who took instructions for drawing the will, had made the mistake. The Court established the claim of Gertrude Yardley (1), but not without observing how very material it was to the case that no such person as Catherine Earnley claimed the legacy (2). On the other hand, the Court of King's Bench treated the case of Doe on the demise of Hayter v. Joinville, as affording an instance of an incurable What ambiguity ambiguity. A testator having devised to his wife's vise to a person's family one moiety of his residuary property, and to his brother's and sister's family the other moiety, died, leaving a brother and sister living, and both with a numerous issue, as well as the children of a deceased sister. It was judged impossible to con family; 3 East Rep, 172. (1) Edge v. Salisbury, Ambl. 71. Gines Kemsley, 1 Freem. 293. Dorset v. Sweet, Ambl. 175. 1 Vez. Jun. 266. Parsons v. Parsons, and see particularly the case of Del Mare Rebello, 3 Bro. C. R. 246. (2) In the case of Del Mare v. Rebello, 3 Bro. C. R. 246. the devise was to the children of the testator's sisters, Estrella and Reyna; Estrella had children Reyna had none, and had changed her name, and become a nun professed. But testator had a third sister, Rebecca, who had children. The Chancellor would not substitute the name of Rebecca for Reyna. strue the will with any rational certainty, so as to make a precise application of the word family. And this was a proper example of the ambiguity patent, as the uncertainty was inherent in the term itself, which unless the context of the will had defined its applicability, could scarcely receive explanation from any extrinsic circumstances (3). Again, where a testator devises to one of the sons of J. S.' who has many sons, no regard can be paid to any thing extraneous to the will, as the medium of expounding the testator's intention (4). It is true, in the last instance, the ambiguity does not fully appear, till from the words of the instru • 2 Vern. 625. Amb. 175. 2 Mod. Cas. in Law and Equity, 122. (3) But it has since been held in the Court of Chancery, that the word 'family' imports as definite an object of a devise as the word relations,' in respect to which the Court of Chancery has, upon grounds of convenience, adopted the rule of the statute of distributions; so that it seems a bequest to the 'family' of another person, after the decease of such person, will be executed by the Court in favour of his nearest of kin. Crewys v. Colman, 4 Vez. Jun. 319. (4) I have before observed, that where a testator gives the same legacy in different parts of his will to the same persons, it is an ambiguity which, unless helped out by some rule of construction, no extrinsic evidence can be received to explain. As to the existence of case, there has been a any and what rule of construction in this Plowd, Comm. English edit. 541, margin, where all the authorities ment the attention is directed to the predicament of the object to which the words apply, since, if in point of fact there was but one son, that son would be entitled ; but still it is obvious, that the reference to external facts (if there were more sons than one) would confirm the patent ambiguity, already attaching upon the words which in themselves express uncertainty, and suppose a plurality of individuals equally included within the terms of a gift intended for one only, and therefore present an ambiguity in the very face of the will (5). (5) I have transcribed the following note from Edward Altham's case, 8 Rep. 155, as furnishing several examples illustrative of the part of the subject above treated: "If A. levies a fine to William hi son, to have and to hold to him and his heirs; upon this fine the Judge cannot make a question of any matter of law; but now the party comes and avers in fact, and says, that A. had two sons, named Willian, an elder and a younger, and that his intent was to levy the fine to William the younger; this averment out of the fine is good of this matter of fact, which well stands with the words of the fine, and shall be tried by the country. But if a man by deed gives goods to one of the sons of J. S. who has divers sons, here it shall not be averred which son was intended; for by judgment in law upon this deed, this gift is void for the uncertainty, which cannot be supplied by averment. So if a man levies a fine of the manor of S or of the manor of D. to two et hæredibus, and in truth there is the manor of North S. and South S. or Great D. and Little D. in this case issue may be taken dehors, which manor the conusor intended to pass, for that is matter of fact, not apparent in the fine, whereof the judge cannot take conusance; but it stands well with the fine, and shall be tried by the jury. But where the words whereby the estate is limited are to two et heredibus, that is apparent in the fine, and, by judgment of law, these If the ambiguity occurs in the wording of a will, producing a palpable uncertainty on the face of it, extrinsic evidence cannot remove the difficulty, without putting new words into the mouth of the testator, and in effect, making a will for him. But if a will presents no ambiguity independently of facts, the uncertainty which arises must come from behind the instrument, and is in this consideration of the phrase with propriety called a latent ambiguity: and indeed to a certain extent extraneous evidence must be resorted to in establishing the title under any devise, since, let the words be ever so clear, the person designed can only bring himself within the description in foro contentioso, by proof of his identity. The late Chief Justice of the King's Bench, in the case of Thomas v. Thomas, 6 T. R. 676, makes this observation: " It has been a long established rule, that where there is a latent ambiguity in a will, the parties may go into extrinsic evidence to render that certain, which, without the aid of such evidence, is uncertain; but here the evidence has itself raised the ambiguity; on the face of the will there is no uncertainty." This passage seems to imply, that where there is no uncertainty on the face of a will, but the of the mark of a patent and latent ambiguity. words et hæredibus are uncertain and void, and no averment dehors can make that good which upon consideration of the deed is apparent to be void." 6 evidence raises the ambiguity, the case is incurable. Possibly, however, his Lordship did not mean to be so understood, since there would be tautology in the phrase of latens ambiguitas, unless it imported an ambiguity not existing on the face of the instrument, but lying behind in the dubiousness of the objects to which its provisions were directed, and therefore capable only of being explained by reference to those objects through the medium of external evidence. The truth will be found upon consideration to be, that the state of facts raises the latent ambiguity, and may also dissolve it; but the patent ambiguity consists in the uncertainty of the language used or in the vagueness of description or expression, and can be expounded only by the context and general sense of the instrument. Thomas v. Thomas, above referred to, was a case of the ambiguitas latens, wherein the words of the will comprised a clear and certain description, but the parol or extrinsic evidence raised the doubts respecting the intention of the testator. The state of facts in that case created the latent ambiguity; which facts were shortly these: The testator devised lands to Mary Thomas, his granddaughter, of Llechlloyd, in Merthyr parish, and it turned out in fact that the testator, at the time of his death, had a grand-daughter, of the name of Elinor Evans, |