Restriction of rule. Miller v. intention appearing on the face of the will to justify the application of the evidence (7). Thus, a devise of all the testator's freehold houses in Aldersgate-street, where, in fact, he had no freehold, but had leasehold houses, was held to pass the latter, the word freehold being rejected (m); the rule being, that, where any property described in a will is sufficiently ascertained by the description, it passes under the devise, although all the particulars stated in the will with reference to it may not be true (n). But, although an averment to take away surplusage is good, yet it is not so to increase that which is defective in the will of the testator (o). In a leading case on this subject (p), testator devised all his freehold and real estates in the county of L. and city of L. It appeared that he had no estates in the county of L.,-a small estate in the city of L., inadequate to meet the charges in the will,-and estates in the county of C., not mentioned in the will. It was held, that parol evidence was inadmissible to shew the testator's intention, that his real estates in the county of C. should pass by his will. For it was observed, that this would be not merely calling in the aid of extrinsic evidence to apply the intention of the testator, as it was to be collected from the will itself, to the existing state of his property: it would be calling in aid extrinsic evidence to introduce into the will an intention not apparent upon the face of it. It would be not simply removing a difficulty, arising from (1) Judgment, Miller v. Travers, 8 Bing. 248; Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363. (m) Day v. Trig, 1 P. Wms. 286; Doe d. Dunning v. Cranstoun, 7 M. & W. 1: see Parker v. Marchant, 6 Scott, N. R., 485. (n) Per Parke, B., Doe d. Dunning v. Cranstoun, 7 M. & W. 10. (0) Per Anderson, C. J., Godbolt, R. 131, recognised, 8 Bing. 253; per Lord Eldon, C., 6 Ves. jun. 397. See the cases cited, 2 Phill. Ev., 9th ed., 290 et seq., particularly the remarks on Beaumont v. Fell, 2 P. Wms. 141. (p) Miller v. Travers, 8 Bing. 244, and the observations on this decision by Sir James Wigram in the treatise already referred to, p. 117 et seq. a defective or mistaken description, it would be making the will speak upon a subject on which it was altogether silent, and would be the same thing in effect as the filling up a blank which the testator might have left in his will: it would amount, in short, by the admission of parol evidence, to the making of a new devise for the testator, which he was supposed to have omitted (q). If, then, with all the light which can be thrown upon the instrument by evidence as to the meaning of the description, there appears to be no person or thing answering in any respect thereto, it seems, that to admit evidence of a different description being intended to be used by the writer, would be to admit evidence for the substitution of one person or thing for another, in violation of the rule, that an averment is not good to increase that which is defective in a written instrument (r), and consequently the instrument, not admitting of explanation, would be void (s). ment. It is, moreover, a rule, which may be here noticed, that Legal intendnon accipi debent verba in demonstrationem falsam quæ competunt in limitationem veram (t),—if it be doubtful upon the words, whether they import a false reference or description, or whether they be words of restraint, limiting the generality of the former name, the law will not intend error or falsehood (u). If, therefore, "I have some land wherein all the demonstrations are true, and some wherein part of them are true and part false, then shall they be intended words of true limitation, to pass only those lands wherein all those circumstances are true (x);" and, if a (g) 8 Bing. 249, 250. (r) Phill. Ev., 8th ed., 715 et seq. (s) Richardson v. Watson, 4 B. & Ad. 787, 796. See Doe d. Spencer v. Pedley, 1 M. & W. 662. (t) Bac. Max., reg. 13. · (u) Bac. Max., reg. 13, cited, 8 East, 104. (x) Bac. Max., reg. 13 ad finem, cited per Parke, J., Doe d. Ashforth v. Bower, 3 B. & Ad. 459, 460; Doe T Rules as to wills re-stated. man pass lands, describing them by particular references, all of which references are true, the Court cannot reject any one of them (y). In concluding these remarks, it may be useful to state shortly the rules respecting ambiguity and falsa demonstratio in connexion with the exposition of wills, and which seem to be applicable to three distinct classes of cases. 1. Where the description of the thing devised, or of the devisee, is clear upon the face of the will, but, upon the death of the testator, it is found that there is more than one estate or subject-matter of devise, or more than one person whose description follows out and fills the words used in the will; in this case parol evidence is admissible to shew what thing was intended to pass, or who was intended to take (z). 2. Where the description contained in the will of the thing intended to be devised, or of the person who is intended to take, is true in part, but not true in every particular; in which class of cases parol evidence is admissible to shew what estate was intended to pass, and who was the devisee intended to take, provided there is a sufficient indication of intention appearing on the face of the will to justify the application of the evidence (a). 3. A third class of cases (6) may arise in which a judge, knowing aliundè for whom or for what an imperfect description was intended, would discover a sufficient certainty to act upon; although, if ignorant of the intention, he would be far from finding judicial certainty in the words of the d. Chichester v. Oxenden, 3 Taunt. (y) Per Le Blanc, J., Doe v. Ly- (z) 8 Bing. 248. See also the Law Mag., No. 55, p. 80 et seq. (b) of this class the case of Beaumont v. Fell (2 P. Wms. 141) is an example. devise; and here it should seem that evidence of intention would not be admissible, the description being, as it stands, so imperfect as to be useless, unless aided thereby (c). VERBA GENERALIA RESTRINGUNTUR AD HABILITATEM REI VEL PERSONAM. (Bac. Max., reg. 10).-General words shall be aptly restrained according to the subject-matter or person to which they refer. It "It is a rule," observes Lord Bacon (d), "that the king's grant shall not be taken or construed to a special intent. is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent, but yet with this exception, that they shall never be taken to an impertinent or repugnant intent; for all words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person.' Thus, if I grant common "in all my lands" in D., if I have in D. both open grounds and several, it shall not be stretched to common in my several grounds, much less in my garden or orchard. So, if I grant to J. S. an annuity of 101. a year, "pro concilio, impenso et impendendo," (for past and future council), if J. S. be a physician, this shall be understood of his advice in physic, and, if he be a lawyer, of his council in legal matters (e). Rule as laid illustrated by down and Lord Bacon. construction. It is also a rule, that that which is generally spoken shall Principles of be generally understood, unless it be qualified by some spe cial subsequent words, as it may be (f); moreover, general (c) See this subject considered, Wigram, Ex. Ev., 2nd ed., 121–123. (d) Bac. Max., reg. 10; 6 Rep. 62. (e) Bac. Works, vol. 4, p. 46. See Com. Dig. "Condition,” (K. 4). (f) Shep. Touch. 88; Co. Litt. 42. a.; Com. Dig. “ Parols," (A. 7). Rule applicable to wills. words are sufficient where the certainty lies within the defendant's notice (g). Hence, in construing the words of any instrument, it is proper to consider, 1st, what is their meaning in the largest sense which, according to the common use of language, belongs to them (h); and, if it should appear that that sense is larger than the sense in which they must be understood in the instrument in question, then, 2ndly, what is the object for which they are used. They ought not to be extended beyond their ordinary sense in order to comprehend a case within their object, for that would be to give effect to an intention not expressed; nor can they be so restricted as to exclude a case both within their object and within their ordinary sense, without violating the fundamental rule, which requires that effect should be given to such intention of the parties as they have used fit words to express (i). Again, in a settlement, the preamble usually recites what it is which the grantor intends to do, and this, like the preamble to an act of Parliament, is the key to what comes afterwards. So, it is very common to put in a sweeping clause, the use and object of which are to guard against any accidental omission; but in such cases it is meant to refer to estates or things of the same nature and description with those which have been already mentioned, and such general words are not allowed to extend further than was clearly intended by the parties (k). So, in construing a will, a court of justice is not by conjecture to take out of the effect of general words property (g) Com. Dig. " Pleader," C. 26, cited per Tindal, C. J., 1 Scott, N. R., 324. (h) 3 Inst. 76. (i) Per Maule, J., Borradaile v. Hunter, 5 Scott, N. R., 431, 432. See in illustration of these remarks Moseley v. Motteux, 10 M. & W. 533. (k) Per Lord Mansfield, C. J., Moore v. Magrath, 1 Cowp. 12; Shep. Touch. by Atherley, 79, n. |