1 Johns. Ch. 231 | New York Court of Chancery | 1814
The question here is, whether, under the bequest of “ all the rest, residue, and remainder of the moneys belonging to my estate at the time of my decease,” the widow be entitled to any thing more than the cash which the testator left at his death ; or whether, as the defendants have contended, she be entitled also to the bonds, mortgages, and notes ?
It is a well-settled rule, that seems not to stand in need of much proof, or illustration, for it runs through all the books, from. Cheney’s Case (5 Co. 68.) down to this day, 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 specified cases ; 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described ; and, 2. To rebut a resulting trust. All the cases profess to proceed on one or the other of those grounds. (Hodgson v. Hodgson, Prec. in Chan. 229. 2 Vern. 593. Pendleton v. Grant, 2 Vern. 517. Harris v. Bishop of Lincoln, 2 P. Wms. 135. Beaumont v. Fell, 2 P. Wms. 140. Hampshire v. Pierce, 2 Ves. 216. Urich v. Litchfield, 2 Atk. 372. Lord Walpole v. Lord Cholmondelly, 7 Term Rep. 138. Lord Eldon, in Druce v. Denison, 6 Ves. 397.) If there be a mistake in the name of the legatee, or there be two legatees of the same name, or if the testator bequeath a particular chattel, and there be two or more of the same description, or if, from any other misdescription of the estate, or of the person, there arises a latent ambiguity, it may and must be explained by parol proof, or the will would fall to the ground for uncertainty. When a latent ambiguity is produced, according to the language of the courts, (Lord Thurlow, in 1 Ves. jun. 259, 260. 415., and Lord Kenyon, in 7 Term Rep. 148.,) in the only way in which it can be produced, viz. by parol proof, it must be dissolved in the same way; and there is no case for admitting parol evidence to show the intention upon a latent ambiguity on the face of the will. They are all cases of latent ambiguity; and the objection to supply the imperfection of a written will, by the testimony of witnesses, is founded on the soundest principles of law and policy. “ It wouldbe full of great inconvenience,” say the justices, in Cheynefs
Perhaps a solitary dictum may, occasionally, be met with (for there are volumes of cases on the subject of wills, immensus aliarum super alias cumulus) in favour of the admission of parol proof, to'explain an ambiguity of uncertainty appearing on the face of a will; though Lord Thur-low says, there is no such case. If there be, we may venture to say, it is no authority. If a will be uncertain, or unintelligible on its face, it is as if no will had been made : quod voluit non dixit. We ought not to forget, that no verbal- or nuncupative will is good, within the statute of frauds, except under special circumstances; and that no will concerning any personal estate (and of that we are now speaking) shall be revoked, or altered, by any words, or will, by word of mouth only. (Laws, sess. 36. ch. 23. sect. 14, 15, 16.) The only apology for parol proof, in any case, is the necessity of the thing, because the ambiguity is
My conclusion is, that the parol proof cannot be received or permitted to enter into the consideration of the case; for it will readily be admitted, that to serve the particular purpose, or meet the supposed hardship, of an individual case, we ought not to break in upon the established principles of law. The observation of Lord Talbot, in one of the cases referred to, contains the true and wise doctrine on this subject, that it is better to suffer a particular mischief than a general inconvenience.
The only question, then, in this cause, is on the construction of all the will itself.
. I do not perceive, from a perusal of the will, any reason for construing the word moneys beyond its popular and legal meaning. It means gold and silver, or the lawful circulating medium of the country. (Co. Litt. 207. a.) It may be extended to bank notes, when they are known and approved of, and used in the market, as cash. Perhaps it would be
There is a settled distinction, on this subject of the construction of wills, between cash or money, and choses in action ; and this increases the difficulty of the attempt which has been made to confound them. Thus, cash will pass by a bequest of moveables; but the better opinion, according to Godolphin, (Orphan's Legacy, p. 417. s. 9.,) is, that money at interest will not so pass, because it is a debt, and not cash. So, a devise of goods and chattels, in such a place, will not include a bond being there, as it has no locality ; but it will include cash, and also bank notes, because they are considered quasi cash. (Chapman v. Hart, 1 Ves. 271. Moore v. Moore, 1 Bro. 127. Fleming v. Brook, 1 Schoale & Lefroy, 318.)
Nor is there any reason to infer, from the will, that due provision is not made for the widow, without permitting her to sweep away, under the denomination of money, all the notes, bonds, and mortgages belonging to the testator. The testator gives to her, in fee, his dwelling house and six acres of land lying on the Bowery-road, in the city of New-York. He also gives to her, in fee, two other lots in the same place.
The result of my opinion is, that the executors must account to the plaintiffs for the bonds, mortgages, and notes left by the testator ; and a reference must be made to a master, to take and state an account between the parties, in which the defendants must be allowed for whatever payment and expenses are justly chargeable to the property; and be chargeable with all the securities aforesaid ; and the question of costs, and all other questions, to be reserved until the coming in of the report.
Decree accordingly.
This case, which was decided the 27th of September, 1815, has been printed out of its chronological order; it should have followed the case of Woods v. Monell, (post, p. 507.) The error, however, is not deemed of sufficient importance, to compensate the' trouble and expense of correction.