4 Bradf. 161 | N.Y. Sur. Ct. | 1856
The testator provided by the residuary clause of his will as follows: “ All the rest, residue, and remainder of my estate, as well real as personal, or the proceeds thereof, I give, devise, and bequeath unto my sisters, Ella, Zipporah, Hetty, Rebecca, and Rachel, equally, share and share alike, for ever.” Hetty Marks, one of the sisters, died before the testator; and I am asked to determine whether her share lapsed, or passed to her personal representatives—and if it lapsed, whether it enured to the benefit of the other legatees named in the residuary clause, or is to be distributed among the "testator’s next of kin, as a portion of his estate not disposed of.
The testator gave an annuity to “ Paris Piccard,” described in the will as his “ cousin.” Parol proof has been offered, that the deceased had no cousin named “ Paris Piccard,” but that his cousin, named “ Priscilla Piccard,” was usually named by him as described in the will. I think this evidence competent. Parol proof may always be used to apply the will—that is, to ascertain the person intended by the testator, by a description, which, though not ambiguous on its face, cannot be applied precisely as expressed in the instrument. Strictly speaking, the testator had no cousin named Paris, and then the legacy must fall, unless we seek by extrinsic evidence to ascertain whom he intended by the description. We cannot, indeed, alter the plain terms of a written instrument, by showing the testator’s declarations, in contradiction of the will, or in addition to it. The writing must prevail, and must be interpreted by its own language. But it is