to the existing circumstances under which they are made, that Courts of law admit evidence of particular customs and usages in aid of the interpretation of written instruments-whether ancient or modern—whenever, from the nature of the case, a knowledge of such customs and usages is necessary to a right understanding of the instrument (a). The law is not so unreasonable as to deny to the reader of any instrument the same light which the writer enjoyed.

Examples illustrating the Fifth Proposition above stated might be multiplied without end (b).

(a) 1 Phil. on Ev. 558, 7th ed.

(b) In support of the general proposition, that Courts of law will look at extrinsic circumstances in aid of the construction of a written instrument, see per Lord Hardwicke in Goodinge v. Goodinge, 1 Ves. sen. 231; per Lord Thurlow, in Jeacock v. Falkner, 1 Bro. C. C. 295, in Green v. Howard, 1 Bro. C. C. 32, and in Fonnereau v. Poyntz, 1 Bro. C. C. 471; per Lord Loughborough, in Mackell v. Winter, 3 Ves. J. 540, 541; per Lawrence, J., in Leigh v. Leigh, 15 Ves. 92; per Lord Manners, C., in Crone v. Odell, 1 Ball & Bea. 480; per Sir T. Plumer in Beachcroft v. Beachcroft, 1 Madd. 430, and in Colpoys v. Colpoys, 1 Jac. 451; per Lord Eldon in Oakden v. Clifden, Linc. Inn Hall, 1826, MS. See also Lane v. Lord Stanhope, 6 T. R. 345; Doe d. Le Chevalier v. Huthwaite, 3 Barn. & Ald. 632; Doe d. Gibson v. Gell, 2 B. & C. 680; Pocock v. Bishop of Lincoln, 3 Brod. & Bing. 27; Alford v. Green, 5 Madd. 95; Goodwright v. Downshire, 2 Bos. & Pul. 608, 1 New Rep. 344; Wilde's case, 6 Rep. 16; Lansdowne v. Lansdowne, 2 Bligh, 60; and see the arguments of counsel in the late case of Pycroft v. Gregory, 4 Russ. 526.

The same principle of construction applies to deeds. There cannot, indeed, be any difference in this respect between deeds or other writings and wills. Deeds require particular words in particular cases

They appear to justify the conclusion, that "Every claimant under a will has a right to require that a Court of construction, in the execution of its office, shall-by means of extrinsic evidence-place itself in the situation of the testator, the meaning of whose language it is called upon to declare" (a). It follows that, if with the

to express a given purpose; but when that requisition is complied with, the rules of construction must be the same, for the intention is the object sought for in all alike. See Wright v. Kemp, 3 T. R. 470. Accordingly, in Doe d. Jersey v. Smith, 2 Brod. & Bing. 553, Bayley, J., says, “The evidence here is not to produce a construction against the direct and natural meaning of the words; not to control a provision which was distinct and accurately described; but, because there is an ambiguity upon the face of the instrument, because an indefinite expression is used capable of being satisfied in more ways than one; and I look to the state of the property at the time, to the estate and interest the settlor had, and the situation in which she stood with regard to the property she was settling, to see whether that estate or interest, or situation, would assist us in judging what was her meaning by that indefinite expression."

See also Sir John Eden v. The Earl of Bute, 3 Bro. P. C. 679; Countess of Shelbourne v. Inchiquin, 1 Bro. C. C. 338; King v. The Inhabitants of Laindon, 8 T. R. 379; and per Ashurst, J., in Doe v. Burt, 1 T. R. 703; Sug. Vendors, p. 142, 6th ed.; Simons v. Johnson, 3 B. & Adol. 175; Smith v. Wilson, 3 B. & Adol. 728; Ponton v. Dunn, 1 Russ. & Myl. 403.

(a) In the late case of Doe d. Templeman v. Martin, East. T. 1833, as reported in 1 Nev. & Manning, p. 524, Parke, J. said, “I think facts and circumstances relating to the subject of the devise are admissible: such as possession by the testator, the mode of acquiring local situation, and the general state of the testator's property. The Court may take such things into consideration, so as to put themselves in the place of the testator, and then see how the terms of the will affect the property." And in Guy v. Sharp, 1 Myl. & K. 602, July, 1833, the Lord Chancellor said, "I may, however, observe generally.

light which that situation alone affords, the testator's meaning can be determined by a Court, the Court which so determines does, in effect, declare that the testator has expressed his intention with certainty, or, in other words, that his will is free from ambiguity (a). There is no other criterion of legal certainty in a will.

The case of Doe d. Oxenden v. Chichester, supra, p. 19, may at first sight appear at variance with the generality of the conclusion stated above; but, in reality, it is not so. It was decided, in that case, that the words of the will were sensible as they stood, with reference to extrinsic circumstances, and the evidence was tendered for the express and admitted purpose of proving, that the testator meant something different from what his words strictly interpreted expressed. This, according to the Second Proposition stated above, could not be done.

In limiting the evidence spoken of in the Fifth Proposition to material facts, the generality of

on the reception of extrinsic evidence, with a view to aid the construction and give explanation, not to alter or to control the sensea purpose for which it can never be received-that there is a manifest difference between the declarations, whether verbal or written, of a testator, and the proof of facts and circumstances, by the knowledge of which the Court, when called upon to construe, may be placed in the same situation with the party who made the instrument, and may thereby be the better able to understand his meaning."

(a) Infra, pp. 134, 135.

the Proposition contended for, respecting the admissibility of explanatory evidence (a) in aid of the exposition of wills, is in no degree broken in upon. This limit is imposed by the general laws of evidence, and not by anything peculiar to the subject to which it is here applied. The only question to which this particular subject gives rise, is this:---By what tests is the materiality of a given fact to be tried? The answer to this question must be taken from the general laws of evidence, and will be found to present itself in a clear and practical form.

Thus, the Second Proposition (p. 15) asserts, that where the words of a will, strictly construed, are sensible with reference to extrinsic circumstances, their strict and primary meaning, and no other, shall prevail. It will follow that any fact which, according to the ordinary rules of evidence, would prove or tend to prove that the circumstances of a case were such as to admit of the testator's words being strictly construed, or that they were not capable of a strict construction, would be a material fact, within the meaning of the Fifth Proposition.

Again, the Third Proposition (p. 29) asserts, that where the words of a will, strictly interpreted, are insensible with reference to extrinsic circum(a) Prop. V.

stances, a secondary sense of the words may be put upon them, provided the circumstances of the case be such as to satisfy a Court that the testator (who must have had some meaning) intended that which is ascribed to him. From this, it will follow, that any fact will be material, in cases falling under the Third Proposition, which, according to the ordinary rules of evidence, proves or tends to prove that the circumstances of the case are such as to admit of or require the secondary interpretation of the words which may be contended for, and evidence of an opposite tendency must, upon general principles, be admissible also.

The Fourth Proposition requires no comment in this place.

It is obvious, from the preceding observations, that the purpose for which extrinsic evidence may be adduced in a suit to execute or avoid a will, may undergo successive changes; for the first question will be, whether the words are sensible as they stand; and, if that question be answered in the negative, a second will arise, namely, whether their meaning is clear in any other sense. It is obvious, therefore, that the question of materiality must shift as often as the succession of purposes for which the evidence may be adduced.

In practice, an opportunity will generally offer of objecting to the admission of evidence, the