The Curiosities and Law of Wills

by John Proffatt

It is obvious that within the scope of the present work it is inexpedient to treat of this subject extensively; it is considered only necessary to advert to a few of the leading and generally recognized rules followed in the construction of wills, both here and in England.

The main purpose, in this direction, is to ascertain the true intention of the testator, from the language used in the instrument, and this intention shall prevail above every other construction which might be placed on the language. This is the cardinal rule of all construction, but it is to be taken with this limitation, that the intention will govern only so far as it is consistent with the rules of law. The general intent overrides all mere technical and grammatical rules of construction.

This intention is to be ascertained from the whole will taken together, from a full view of everything contained within “the four corners of the instrument,”[312] and not from the language of any particular provision when taken by itself; and, for the purpose of construction, a will and codicil may be considered together, and construed as different parts of the same instrument.[313] But where several parts are absolutely irreconcilable, the latter must prevail.[314]

The rule as to intention, governing in all cases, is somewhat liable to misconception, because it is susceptible of, and may be taken in, two senses.

For by intention, it may be inferred that we are to seek for some probable purpose as existing in the testator’s mind at the time; or may seek to extract that intention from the meaning of the language which he has used. It is in this latter sense alone in which construction is employed. The will must be in writing, and the only question is, what is the meaning of the words used in that writing? And to ascertain this, every part of it must be considered, with the help of those surrounding circumstances which are admissible in evidence to explain the words, and to put the court as nearly as possible in the situation of the writer.

This was well expressed in Cole v. Rawlinson,[315] by Lord Holt when he said: “The intent of a testator will not do, unless there be sufficient words in the will to manifest that intent; neither is the intent to be collected from the circumstances of his estate, and other matters collateral and foreign to the will, but from the words and tenor of the will itself.” The rule was well illustrated in the case of Doe v. Dring,[316] where a testator, intending, no doubt, to dispose of all his property for the benefit of his family, used these words: “All and singular my effects of what nature and kind soever.” Lord Ellenborough said, that if he were asked his private opinion as to what the testator really meant when he used these words, he would reply, that he must be supposed to have meant that which his duty prescribed to him, to convey all his property for the maintenance of his family; but as a judge, he was not at liberty to collect his meaning from matters dehors, but only from expressions used on the face of the will, and that the expression “effects” had always a meaning, in the absence of anything in the context, which necessarily excluded real estate. However, if the context shows that by the expression, “all my personal estates,” the testator meant to include real property, it will be so held by reason of the clear intention manifested on the face of the will.[317]

An introductory clause expressing a testator’s desire to dispose of all the property he should “leave behind him” may be referred to, to construe the will as passing all lands belonging to the testator at the time of his death.[318]

It is one of the most troublesome questions in law, as to how far parol evidence can be admitted to ascertain the intention of a testator. The principle was early established, that parol evidence should not be admitted to vary, contradict, or enlarge the terms of a will, and this is still rigidly adhered to. This was well established in what is known as Lord Cheney’s Case,[319] where it is said that “otherwise it were great inconvenience that not any may know by the written words of the will what construction to make, if it might be controlled by collateral averment, out of the will.”

Chancellor Kent, in Mann v. Mann,[320] examined this subject with much industry and learning, and declared the result to be: that from Cheney’s Case down to this day, it has been a well-settled rule that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specific cases: 1st. Where there is a latent ambiguity arising dehors the will, as to the person or subject meant to be described; and 2d. To rebut a resulting trust.

What is a latent ambiguity is thus described in the quaint but expressive language of Lord Bacon: “Latens is that which seemeth certain, and without ambiguity for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity; as, if I grant my manor of S to J F and his heirs, here appeareth no ambiguity at all; but if the truth be that I have the manors both of North S and South S, this ambiguity is matter in fact, and, therefore, it shall be holpen by averment, whether of them was that the party intend should pass.”