558

"There be two sorts of ambiguities of words; the one is ambiguitas patens, and the other latens. Patens is

very loosely to mean any doubt or uncertainty raised by extrinsic evidence, and very frequently there is a failure to distinguish between cases where a description is equally applicable to either one of two or more persons, or of two or more things, and the other cases in which a doubt is raised by extrinsic facts, such as cases of defective and inaccurate description. This distinction is of great consequence, especially in reference to the kind of evidence admissible to remove the doubt or uncertainty, for it is only in the case of the double application of words of description that evidence of intention direct is admissible to remove the uncertainty. It may be shown which of two or more persons or things was in tended by a description equally applicable to all. Altham's case, 8 Rep. 155 a; Jones v. Newman, 1 W. Bl. 60; Doe v. Morgan, 1 Cromp. & M. 235; Doe v. Allen, 12 A. & E. 451; Osborn v. Wise, 7 C. & P. 761; Blundell v. Gladstone, 3 McN. & G. 692, 12 Eng. L. & Eq. 52; Careless v. Careless, 19 Ves. 601; Carruthers v. Sheddon, 6 Taunt. 14; Waterman v. Johnson, 13 Pick. 261. But see as to latent ambiguity, in case of sheriffs' sales, Mason v. White, 11 Barb. 174. In Doe d. Gord v. Needs, 2 M. & W. 129, the law with respect to the admission of extrinsic evidence, in the case of latent ambiguities, is thus laid down with great clearness by Parke, B. "Upon the proof of extrinsic facts, which is always allowed, in order to enable the court to place itself in the situation of the devisor, and to construe his will, it would have appeared that there were at the date of the will two persons, to each of whom the description would be equally applicable. This clearly resembles the case put by Lord Bacon of a latent ambiguity, as where one grants his manor of S. to J. F. and his heirs, and the truth is that he has the manors both of North S. and South S.; in which case Lord Bacon says, 'it shall be holpen by averment whether of them was that which the party intended to pass.' The case is also exactly like that mentioned by Lord Coke in Altham's case, 8 Rep. 155 a; If A levies a fine to William, his son, and A has two sons named William, the averment that it was his intent to levy the fine to the younger is good, and stands well with the words of the fine. Another case is put in Counden v. Clerke, Hob. 32, which is in point; If one devise to his son John, where he has two sons of

that name,' and the same rule was acted
upon in the recent case of Doe v. Mor-
gan, 1 Cromp. & M. 235. The character-
istic of all these cases is, that the words
of the will do describe the object or
subject intended; and the evidence of
the declarations of the testator has not
the effect of varying the instrument in
any way whatever; it only enables the
court to reject one of the subjects or
objects to which the description in the
will applies; and to determine which of
the two the testator understood to be sig-
nified by the description which he used
in the will. . . . There would have been
no doubt whatever of the admissibility
of evidence of the devisor's intention, if
the devise to 'George, the son of Gord,'
had stood alone, and no mention had
been made in the will of George, the
son of John Gord, and George, the son of
George Gord. But does the circumstance
that there are two persons named in the
will, each answering the description of
George, the son of Gord,' prevent the
application of this rule? We are of
opinion that it does not. In truth, the
mention of persons by those descriptions
in other parts of the will has no more
effect, for this purpose, than proof by
extrinsic evidence of the existence of
such persons, and that they were known
to the devisor, would have had; it shows
that there were two persons, to either of
whom the description in question would
be applicable, and that such two persons
were both known; and the present case
really amounts to no more than this, that
the person to whom the imperfect de-
scription appears on the parol evidence
to apply, is described in other parts of
the same will by a more full and perfect
description, which excludes any other
object than himself." Evidence of inten-
tion may be admitted, where there are
two persons of the same name, father
and son, although the son has the addi-
tion of jun'r to his name. Coit v. Stark-
weather, 8 Conn. 289.
See Doe v.
Westlake, 4 B. & Ald. 57. If in cases of
latent ambiguity the intent of the parties
is not ascertained, the instrument is void
for uncertainty. Richardson v. Watson,
4 B. & Ad. 787; Cheyney's case, 5 Rep.
68 b. Much will be gained in point of
accuracy, it is conceived, by restricting
the term latent ambiguity to the case
where words of description have a double
application. Indeed, it is so restricted
by Alderson, B., in Smith v. Jeffryes, 15

*

* 560

that which appears to be ambiguous upon the deed *559 or instrument; 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. Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averments, and so, in effect, that to pass without deed, which the law appointeth shall not pass but by deed. Therefore, if a man give land to J. D. et J. S. et hæredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited. But if it be ambiguitas latens, then otherwise it is; 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 South S. and North S., this ambiguity is matter in fact; and therefore, it shall be holpen by averment, whether of them was that the party intended should pass." (ƒ)

The rules of Lord Bacon rest entirely upon the principle that the law will not make, not permit to be made, for parties, a contract other than that which they have made for themselves. They can have no other basis than this; and so far as they carry this principle into effect they are good rules, and no further. For it is this principle which underlies the whole law of construction, and originates and measures the value of all its rules. Thus, if a contract be intelligible, and evidence shows an uncertainty, not in the contract, but in its subject-matter or its application, other evidence which will remove this uncertainty is admissible. (g) But if a contract is not certainly intelligible by * 561

M. & W. 562. If the term is so restricted, we then have the cases of latent ambiguities proper, in which alone evidence of intention direct is admissible. All other uncertainties, whether patent or latent, in the ordinary sense of those terms, must be removed by the same kind of evidence, namely, by placing the court which is to construe an instrument as nearly as possible in the situation of the author of, or parties to, such instrument. The rule of patent and latent ambiguities, then, falls to the ground, as furnishing a decisive test by which to determine in all cases whether evidence may be admitted to explain a written instrument.

(f) Bac. Max. Reg. 23.

*

(g) “For the purpose of applying the instrument to the facts, and determining what passes by it, and who take an interest under it, every material fact that will enable the court to identify the person or thing mentioned in the instrument, and to place the court, whose province it is to declare the meaning of the words of the instrument, as near as may be in the situation of the parties to it, is admissible in evidence." Per Parke, B., in Shore v. Wilson, 9 Clark & F. 556. See Guy v. Sharp, 1 Mylne & K. 589, 602, per Lord Brougham; Doe v. Martin, 1 Nev. & Man. 524, per Parke, J.; Doed. Hiscocks

itself, it may be said that evidence which makes it so must make a new contract; for one that is intelligible cannot be the same with one that is unintelligible; and therefore the evidence is not admissible. But this argument must not be carried too far, for it is not always applicable without much qualification. What indeed is the meaning of uncertainty? If words of a foreign language are used, the contract is uncertain until they are interpreted; if words which are merely technical, then it is uncertain until experts have given their meaning; if words which are applicable to two or three different things or persons, then it is uncertain until the one thing or person is clearly pointed out. Now, where does the law stop in this endeavor to remove uncertainty? We answer, not until it is found that the contract must be set aside, and another one substituted, before certainty can be attained. In other words, if the contract which the parties have made is incurably uncertain, the law will not or rather cannot enforce it; and will not, on the pretence of enforcing it, set up a different but valid one in its stead. It will only declare such a supposed contract no contract at all; and will leave the parties to the mutual rights and obligations which may then exist between them. But, on the other hand, the law will not pronounce a contract incurably uncertain, and therefore null, until it has cast upon it all the light to be gathered, either from a collation of all the words used, or from all contemporaneous facts which

v. Hiscocks, 5 M. & W. 367, per Lord Abinger; Hildebrand v. Fogle, 20 Ohio, 147; Hasbrook v. Paddock, 1 Barb. 635; Simpson v. Henderson, Moody & M. 300; Wood v. Lee, 5 T. B. Mon. 50, 59; Hitchin v. Groom, 5 C. B. 515. "Where there is a gift of the testator's stock, that is ambiguous, it has different meanings when used by a farmer and a merchant. So with a bequest of jewels; if by a nobleman, it would pass all; but if by a jeweller, it would not pass those that he had in his shop. Thus the same expression may vary in meaning according to the circumstances of the testator." Per Plumer, M. R., in Colpoys v. Colpoys, Jacob, 464. See also Kelley v. Powlet, Ambl. 605, 610. The remarks of Sir James Wigram upon this point, although made with reference to wills, apply equally to all instruments to be construed. "It must always be remembered," says he, "that the words of a testator, like those of every other person, tacitly refer to the circumstances by which at the time of expressing himself he is surrounded. If, therefore, when the

circumstances under which the testator made his will are known, the words of the will do sufficiently express the intention ascribed to him, the strict limits of exposition cannot be transgressed, because the court, in aid of the construction of the will, refers to those extrinsic collateral circumstances to which it is certain the language of the will refers. It may be true, that without such evidence, the precise meaning of the words could not be determined; but it is still the will which expresses and ascertains the intention ascribed to the testator. A page of history (to use a familiar illustration) may not be intelligible till some collateral extrinsic circumstances are known to the reader. No one, however, would imagine that he was acquiring a knowledge of the writer's meaning, from any other source than the page he was reading, beeause, in order to make that page intelligible, he required to be informed to what country the writer belonged, or to be furnished with a map of the country about which he was reading." Wigram on Wills, sec. 76.

extrinsic testimony establishes. (h) If these make the * 562 intention and meaning of the parties certain, it may still be an intention which the words cannot be made to express by any fair rendering. In this case also the contract is null, for it is the words and not the intention without the words that must prevail. But if, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract, in this sense or with this interpretation, will be enforced, as the contract which the parties have made.

The distinction and the rules of Lord Bacon are therefore less regarded of late, than they were formerly. (i) They are intended to enable the court to distinguish between cases of curable and those of incurable uncertainty; to carry the aid of evi- * 563 dence as far as it can go without making for the parties what they did not make for themselves, and to stop there. And

(h) Among the material facts necessary to be known by the court, in order that it may be placed as near as may be in the position of the parties to any instrument, is the knowledge or ignorance of those parties as to certain facts necessarily involved in the application of the instrument to the persons or things described in it. Thus, in Doe v. Beynon, 12 A. & E. 431, there was a devise to Mary B., with remainder to "her three daughters, Mary, Elizabeth, and Ann." At the date of the will, Mary B. had two legitimate daughters, Mary and Ann, living, and one illegitimate, named Elizabeth. It was held, that evidence was admissible to show that Mary B. formerly had a legitimate daughter named Elizabeth, who died some years before the date of the will, and that the testator did not know of her death, or of the birth of the illegitimate daughter. See also Powell v. Biddle, 2 Dall. 70; Goodinge v. Goodinge, 1 Ves. Sen. 231; Careless v. Careless, 19 Ves. 601; Scanlan v. Wright, 13 Pick. 523; Brewster v. McCall, 15 Conn. 274, 296. -So where the question is one purely of intention, the belief of the author of an instrument, as to facts necessarily involved in it, may have an important bearing upon its construction. A testator devised his farm in A., in the possession of T. H., to T. R. He had two farms in A., both of which were in the possession of T. H., but at different rents. On a question being raised which of these two farms the testator intended to give to T. R., held, that the devise must be taken

to have been made to T. R. for his per-
sonal advantage and not upon trust; and
if therefore it could be ascertained that
one of the farms was subject to a trust, or
that the testator supposed it to be so, it
must then be inferred that such farm was
not the one intended to be devised, but
that the other was the one referred to
by the testator. Lord St. Leonards said:
"The only question which is absolutely
necessary to be decided is this, not whether
the testator really held those estates, or
one of them, on any valid trusts, but
rather what he considered and understood
to be his interest, that is, whether he sup-
posed that he held them, or one of them,
on any trust, or treated, or intended to
treat, or to have them or one of them
treated as if so held in trust.
If he sup-
posed that he held one of them in trust,
or treated it as if so held, and intended
that it should be considered and treated as
so held, and if it does not appear that he
held, or supposed that he held, the other
of them on any trust, it seems to me that
the one which he supposed to be held on
any trust, or treated as if so held, cannot
be regarded as intended to be the subject
of the devise to Mr. Robinson, and con-
sequently the other estate may be deemed
to be the one referred to in that devise."
Blundell v. Gladstone, 3 McN. & G. 692,
12 Eng. L. & Eq. 52. See also Quincey
v. Quincey, 11 Jurist, 111; Connolly v.
Pardon, Paige, 291; Baker v. Baker,
2 Ves. 167.

(i) See ante, p.

557, note (e).

it is found that it is sometimes of doubtful utility to refer to these rules in the endeavor to ascertain the meaning of a contract, rather than to the simpler rule, that evidence may explain but cannot contradict written language. This last rule limits all explanation to cases of uncertainty, because where the meaning is plain and unquestionable, another meaning is not that which the parties have agreed to express. Thus, if a blank be left in an instrument, or a word or phrase of importance omitted by mistake, the omission may be supplied, if the instrument contains the means of supplying it with certainty, otherwise not, because the parties in such a case have not made the instrument; and the law would make it, and not the parties, if it undertook to supply by presumption an omitted word necessary to its legal existence. And if it permitted this to be supplied by parol testimony, it would be this testimony, and not a written instrument, which proved the property or determined the rights and obligation of the parties. (j) But this rule permits all fair and reasonable explanation of actual uncertainty. Thus, if a guaranty be given, beginning, "In consideration of your having this day advanced" money, &c., which guaranty is invalid if in fact for a past or executed consideration, evidence should be received to show that in point of fact the advancing of the money and the giving of the guaranty were simultaneous acts. (k)

It is not easy to lay down rules which will assist in determining these difficult questions, and not be themselves open to much question. But we should express our own views on this subject by the following propositions.

564

If an instrument is intelligible and certain when its words are taken in their common or natural sense, all its words shall be so taken, unless something in the instrument itself gives to them, distinctly, a peculiar meaning, and with this meaning the instrument is intelligible and certain; and in that case

(j) Miller v. Travers, 8 Bing. 244; Saunderson v. Piper, Bing. N. C. 425; Baylis v. Attorney-General, 2 Atk. 239; Castledon v. Turner, 3 Atk. 257; Hunt v. Hort, 3 Bro. C. C. 311.

(k) Goldshede v. Swan, 1 Exch. 154. In this case, Pigott, of counsel for the defendant, insisted upon the rule that parol evidence is not admissible to vary the terms of a written instrument. But Parke, B., interrupting him, said: "You cannot vary the terms of a written in strument by parol evidence; that is a regular rule; but if you can construe an instrument by parol evidence, where that

instrument is ambiguous, in such a manner as not to contradict it, you are at liberty to do so." And the other judges use similar language. See also Butcher v. Steuart, 11 M. & W. 857, where, "in consideration of your having released," was held to have a prospective and conditional meaning, by the help of extrinsic evidence. And see Colbourn v. Dawson, 10 C. B. 765, 4 Eng. L. & Eq. 378; Haigh v. Brooks, 10 A. & E. 309. In Noonan v. Lee, 2 Black, 499, the rule is stated, that parol evidence not inconsistent with a written instrument, is admissible to apply such instrument to its subject.