Philips then said he would rectify it; but the devisor answered, there was no occasion, as the place of abode and the parish would be sufficient. To this evidence the defendant's counsel objected, contending that there was not that ambiguitas latens which authorized the receiving of parol evidence. That if the doubt had arisen from there being two persons of the name of Mary Thomas, parol evidence might be admitted, to explain which of them was meant; but here the inaccuracy of the description was not such as to raise a sufficient degree of doubt to let in the parol evidence, for grand-daughter would properly enough signify great grand-daughter; and the mistake of the residence was only in a matter of description, which was perpetually varying, and could not raise any doubt, where a name, not applicable to any other than the defendant, was used; which was a circumstance of the greatest weight in these cases. Mr. Justice Lawrence received the evidence, subject to the opinion of the Court on its admissibility, in case the jury should be of opinion that the name Mary Thomas had, by mistake, been inserted, instead of Elenor Evans. The defendant's counsel then offered evidence of declarations made by the devisor at other times, previous to the making of his will, expressive of his regard for his great grand-daughter the defendant, and of his intention of giving her the house in question. This was rejected by the Judge, who was of opinion that nothing dehors the will could be received to show the intention of the devisor; which could only be collected from the words of the will itself, after the removal of any latent ambiguity there might be in the description of persons, or other terms used in the will. The jury found for the heir at law, on the ground that the will was void for uncertainty. Upon a motion for a new trial, Lord Kenyon said, that as there were two parts of the description, not answering to Mary Thomas, 1 Maule & Selwin, 301. who was named in the will, the Court was left to conjecture who was meant by the devisor: but the law would not allow an heir at law to be disinherited by conjecture. With regard to the other question, respecting rejection of evidence, the learned Judge did right in rejecting it; the supposed declarations having been made by the testator long before the will was made; though had they been made at the time of mak11 East, 441. ing the will, he should have thought them admissible in evidence. Vide Doe v. Jones v. Newman, 47. Where parol evidence is admitted to explain a will, it may be encountered by parol evidence. 48. On a motion for a new trial, in ejectment, 1 Black. R. 60. wherein the lessor of the plaintiff was heir at law, and the defendant's title arose upon a will, which devised the premises to John Cluer of Calcot, under whom the defendant claimed. The plaintiff gave evidence, that at the time of making the will, there were two John Cluers, father and son, and that therefore the devise was to the father, who died before the testatrix, and so the devise was lapsed and void. Upon which the defendant offered to prove by parol evidence that the testatrix intended to leave it to John Cluer the son. But the Judge would not suffer it; and a verdict was found for the plaintiff. Per totam curiam, the Court was mistaken; the objection arose from parol evidence, and ought to be encountered by the same, CHAP. X. Construction-What Words create a Devise, and describe the Devisees, and the Things devised. HAVING stated the general rules by which devises are construed, it will now be necessary to enquire, 1. What words are necessary to create a devise. 11. What words are necessary to describe the devisees. 1. What words are necessary to describe the property intended to be devised. And iv. What words are necessary to denote the quantity and nature of the estate intended to be devised. 2. With respect to the words necessary to create a what words devise, the proper and technical words are, give and create a devise. devise; but any other words which sufficiently show the intention of the testator to dispose of all, or any part of his lands or real estate, will be sufficient for that purpose. Bro. Ab. Devise, pl. 48. Hodgkinson v. Star, cited 1 Ld. Raym. 127. Trent v. Trent, 1 Dow. 102. Wright v. 2 Vent. 56. 3. A person having conveyed his estate to feoffees, to his own use, before the statute of uses, made his will after that statute, and also after the statute of wills, by which he willed that his feoffees should make an estate to W. N. and the heirs of his body. This was adjudged to be a good devise of an estate tail to W. N., the intention being clear. 4. A. seised of lands in fee, and having issue two sons, B. and C., devised several estates to B. his eldest son; and directed that B. should renounce all his right in Blackacre, of which the devisor was then seised, to C. This was adjudged to amount to a devise to C. in fee. 5. A person, after giving by his will an annuity of 2001. a year to his wife, and 6,000l. to each of his younger children, his just debts being first paid; appointed three persons "as trustees of inheritance for the execution hereof." The question was, whether the trustees took any estate in the testator's real property, so as to render the same chargeable with the annuity and legacies. The Judges of the Court of Common Pleas certified that the trustees took no interest in the real estates. Lord Eldon being dissatisfied with this certificate, directed a case to the Court of King's Bench, who certified that the trustees did take an estate. Lord Eldon confirmed the opinion of the Court of King's Bench, and observed, it was a material fact, that the testator must have known, when he made his will, that his personal estate was insufficient to answer its purposes. This decree was affirmed by the House of Lords. 6. A mere recital in a will does not operate as a devise; and therefore in a case where a person being tenant for life, remainder to his wife for life, remainder 1 Com. R. 232. to his own right heirs; made his will, in which he said, "My lands by Woolwich my wife is to enjoy for her life; after her death, of right it goeth to my daughter Elizabeth for ever, provided she hath heirs." It was determined that nothing was devised to Elizabeth; for the will did not give her any estate, but only recited that it was to go to her. or desire do not create a devise. 7. Words of advice, recommendation, or desire, do Words of advice not create a devise; nor will they even operate so as to raise a trust in equity, unless the property is certain, and the persons to whom it is given clearly described; and even in that case such words are not in general deemed imperative or legatary, where they are inconsistent with the antecedent right or interest devised to that person to whom they are addressed; for in such cases the subject matter of the recommendation having been once absolutely devised away, it cannot be presumed that the testator intended to use the subsequent words of recommendation in a legatary sense, which would be to construe his will as inconsistent with itself, in one and the same sentence. Schribb, 8 Vin. Ab. 289. 8. A person gave all his estate to his wife; and then Palmer v. said, "I desire and request my said wife to give all her estate, which she shall have at the time of her death, to her and my nearest relations, equally among them." Lord Harcourt said, the words of the will being so general, both with respect to the money, and the persons to take it, did not amount to a devise; but was only a recommendation to the wife, to make such a disposition. But if he had desired that she should have given to a particular person, it would have been a good devise, and a trust. 9. Lady Bland devised her manor of Withington, subject to her debts and charges, to her son Sir John Bland, his heirs, executors, administrators, and assigns for ever; and did thereby earnestly request her said son, that in case of failure of issue of his body, he would some time in his lifetime, either by will, or any other writing, convey and settle the said real estate so devised by her to him, or so much thereof as he should stand seised of at the time of his death, so and in such manner as that after failure of issue of his body, the Bland v. Bland, Hil. 1745. |