Vernor against Henry, 3 Watts 385

The opinion of the Court was delivered by Gibson, C. J. There may possibly be a speck of error in the twelve exceptions to evidence, but my eye is not sufficiently microscopic to discern it. Nothing could raise a doubt of the competency of any part of the proof, were it not that evidence was allowed of acts done and expressions used by the testator before and after the date of the will. In the case of a latent ambiguity if is certain that explanatory declarations made at the time of execution are admissible, having been so ruled in Harris v. The Bishop of Lincoln, 2 P. Wms 137; and Thomas v. Thomas, 6 T. R. 671.

In the latter, however, previous professions indicative of a design to give the property in a particular way, were excluded.

Though I can see no good ground for it, naked declarations of such a design might possibly be deemed incompetent, for the reason that the important consideration is the state of the intention at the making of the will, when all previous designs may have been abandoned; yet the objection would seem to be rather to the effect of the evidence than its competency, for the admitted existence of a testamentary purpose raises a presumption, however slight, of the continuance of it till rebutted by proof of misconduct; or other circumstance to induce a presumption of a change of feeling towards the person previously intended to be favoured.

But what would be the effect of such a presumption when strengthened by circumstances ] In order to show the correspondence of the party’s relations and condition to the description by which he claims, to be accidental, would it not be open to proof from the other side, that the testator was a stranger to him, while he had treated the claimant who bears the name as the proclaimed successor to his estate ¶ No argument built on a subtlety could oppose a conclusion so rational.

What, then, is the case which the plaintiff was permitted to prove 1 It is in substance, that the testator knew, but did not esteem the person whose pretensions rest upon the efficacy of the description ; and that he had avowed a determination to give him nothing: on the other hand that he knew, esteemed, and praised as the most worthy of the family, him whose pretensions are founded on the name; that he received letters from him when absent, made him welcome when present, and received at his hands the care and attentions of a favourite relative in his last moments.

From this it will be seen that the difference between the case put for illustration, and the one proposed to be proved, is not in the principle of the evidence, but in the degree of its force. Were it necessary, it might be remarked that no declaration of a purpose to give the plaintiff a legacy was comprised in the offer; but we hold that to be immaterial. In relation to the charge, it may be proper to inquire how much of the matter put to the court was irrelevant, or exclusively for the determination of the jury.

The ascertainment of intention from the will itself, falls within the province of the court; and where the sense is incomplete, the deficiency cannot be supplied by extrinsic evidence: ajlatent ambiguity occurs, and the bequest is vpid. But a discrepance, or an accordance, between, the whole or particular parts of the description, may be shown by evidence dehors, to create, or to destroy an ambiguity which is said to be latent, because it is concealed by the will, and disclosed but by extrinsic circumstances.

A legatee is designated by name; or by description according to his condition or the relation he bears to persons or things; or by both. Where the designation is by a name common to two or more, and without reference to circumstances of description, the question of identity is one purely of fact.

Where, however, a description or an addition is inapplicable not only to the party named, but to every one else, its falsity is insufficient to invalidate the designation by the name, the maxim being that ventas nominis tollit errorem demonstrationis; and Lord Bacon has some curious observations on this head to show, that next to the actual presence of the donee, a designation of him by name is the more worthy in certainty; whence a legal presumption of fact, in case of a discrepance, that the falsity is in the description, and not in the name. Bacon’s Maxims, Regula XXV. On this principle was decided Standen v.

Standen, 2 Ves. Jun. 589, and Dare v. Geary, cited Amb. 375, in which the rule was held as it has just been stated. Where, however, the designation is in part by a name exclusively applicable to one person, and in part by a description exclusively applicable to another, so as to make it uncertain which of the two was meant, the bequest is void; and this was the principal point decided in Thomas v.

Thomas already quoted: but it was also held, that if it were shown that the testator had mistaken the name, the party answering the description might take by force of it; and the converse of the proposition necessarily holds in regard to a mistake of the description.

What then was the case before the jury? “ I give and bequeath,” said the testator, “ to my nephew, James Vernor Henry, son of my deceased sister Elizabeth, his heirs or assigns, the sum or legacy of 8000 dollars, lawful money; to be paid to him one year after my decease.” The plaintiff, though bearing the name James Vernor Henry, is not the nephew, but the grand-nephew of the testator, and not the son, but the grandson of the sister named Elizabeth; and hence a discrepance between the description and his circumstances of relation. On the other hand, Robert R.

Henry, who makes pretension, is in fact a nephew of the testator, as well as a son of his sister Elizabeth, and the only person who was so at the making of the will; but though his circumstances of relation correspond to the descriptive part of the designation, he does not answer to the name.

This state of the case, unaffected by evidence of misapprehension or mistake, would leave the bequest to sink into the residuum: but to show that the testator misconceived the circumstances of the description, is to destroy its effect as pertaining to any particular person, and thus to bring the case within the principle of Standen v. Standen, and Dare v. Geary.

It is necessarily indifferent to the validity of the bequest whether the misconception relates to the name or the description, since the uncertainty arising from equality of designation is removed by destroying the equipoise which created it; so that, on the principle just indicated, the party designated by the true name or the true description, will take in exclusion of the other, as the fact may turn out.

Now whether the testator were not mistaken in imagining that the terms of description corres•ponded exactly to the relation which the plaintiff actually bore to ■him and his sister Elizabeth, was a fact put to the jury as the turning point of the cause; and properly so, unless there was no evidence to raise the question : but it was distinctly in proof that he had once had a nephew named John Vernor Henry, who was the son of his sister Elizabeth; that he was apprised of tiie death of this nephew before the making of the will; that the plaintiff is the son of this nephew, and the head of his family; that the testator had frequently inquired after the plaintiff, and never after Robert R.

Henry, his competitor, who claims by the description; that the plaintiff often wrote letters to, and visited the testator, who received him with affection, and spoke of him as being “ the flower of the flockthat Robert R. Henry visited him but once and was coldly received, the testator declaring immediately after his departure, “ that he should never have a cent’s worth of any thing in the world belonging to himand that the plaintiff attended the testator in his last illness, ministering to his temporal and spiritual comforts till his death.

Now though many of these matters were subsequent to the will, yet a long and uninterrupted interchange of affection on the one hand, and a coldness amounting almost to disdain on the other, might be fairly left to the jury to rebut a presumption of title founded on a description by reference to circumstances. Every thing else required of the court by way of direction, if compounded of matter of law, was wide of the inquiry; or else it was matter of fact, which is not a subject of revision here.

The cause, then, having been put on its true point, and none but competent evidence having been introduced, the defendants have failed in all their assignments of error. Judgment affirmed.