John Den, Lessee of Polly Weatherhead, Plaintiff in error, v. John Baskerville, John White, John Parker, Peter Haynes, William Stewart, Nancy Stewart, Nelson B. Turner, Jacob Gallaspie, Peter Bryson, Benjamin Parrish, William Johnson, Reuben D. Brown, Thomas Saunders, Richard Winn, Thomas Stone, Beverly Head, David Chenault, W. W. Weatherhead, John Weatherhead, George T. Brown, B. F. Sharp, and Francis Rogan, 11 How. 329

Mr. Justice WAYNE delivered the opinion of the court. All of us agree -— our learned brother who presided upon the ' trial of this case in the Circuit Court concurring — that so much of the testimony submitted to the jury, to show a different intention in the testator from that which his will discloses, was inadmissible. Weatherhead v. Sewell, 9 Humph. 272; Newburgh v. Newburgh, 5 Madd. 364; Miller v.

Travers, 8 Bingh. 244; 1 Greenleaf on Evidence,, 287, 289, and note. , But it was urged, as the animus testandi of a testator may be gathered from all -the circumstances constituting the res gestee of the execution of a will, that all and any of them may be used to prove that expressions and clauses were put into the will we are considering, contrary to the intention and instructions of the testator. - Without denying altogether that proposition, or the illustration of it in the case of Hippesley v.

Homer, Turn. & Russ. 48, we think it must be admitted,, that the testimony for such a purpose must be of facts unconnected with any general declaration, or wishes expressed by a testator for the disposition of his property by will. Strode v. Lady Faulkland, 3 Ch. 129; Brown v. Selwin, Cas. Temp Talb. 240. The only safe rule is, that, where a will is doubtful and uncertain, it must receive its construction from the words of the will itself, and no parol proof or declaration ought to be admitted out of the will to ascertain it. The testimony offered' in this case, is of that character.

That which was offered is the testimony of Hall and Mary Bead. Hall’s in this particular is a hearsay narrative received by him from the executor, Isaac Bledsoe.. On that^account it will not be further noticed. Mary Bead’s is not admissible, for she admits that she did not hear what the testator said “ when the will was writing, if he said any thing.” She does not say that she heard the instructions given by the testator to Clendening, the draughtsman of the will.

But she says “ she recollects he said he wanted his -Kentucky and Holston lands sold, and the proceeds applied .to the.education of his children; that he want- - ed a small tract of land given to his daughters at the discretion of his executor's; the balance of his land to be equally divided among his sons.” Such testimony is altogether inadmissible, either for the purpose of determining the factum of a will, or to ascertain its intention. “ It would indeed be of but little avail to require that a will ab origine should be in writing, or to fence a testator round with a guard of attesting witnesses, if, when the written instrument failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied and its inaccuracies might be corrected from extrinsic sources.” In another view her testimony was inadmissible.

There is no such uncertainty in the will, that it cannot be carried into effect without the aid of extrinsic testimony. ■ Those words which are supposed to make it so, being void and inoperative to convey any thing, when that has been determined, cannot be used to make something else in the will ambiguous, which is certain of itself. The words are, f£ to each of my daughters a small tract of land,” immediately after the testator’s declaration that he desired his estate to be equally divided among his children.

Estate is a comprehensive term, including all real and personal estate, and children has a legal significancy, extending, as the case may be, to grandchildren and even illegitimate children, but never permitting the term sons to be substituted for it, unless such shall be the plain intention of a testator in his. will in favor of sons to the exclusion of .daughters. Again, the testator says in the will, “ my lands and slaves to be equally divided amongst my children.” In both the terms are intelligible.

They do not admit of a doubt, and must have their operation, notwithstanding there may be an intermediate expression without any legal efficacy or certain meaning. We do not think it necessary to examine further, in • connection with this case, how far parol evidence is admissible in cases of wills; or for what ambiguities in a will extrinsic testimony may be used to explain them. The case does not call ior either. In 1 Jarman, 349, ch. 13, will be found a clear and satisfactory

chapter upon the admissibility of parol testimony in cases of wills, illustrated by adjudicated cases. Mr. Wigram has placed before the profession the subject of extrinsic testimony in cases of ambiguity in wills with such ability and minuteness, that it has become a treatise of authority with judges and lawyers in England and the United States.

We will now • pass on to the instructions which the court gave to the jury, concerning those 'presumptions which they’ might make from the évidence, against the plaintiff, in consequence of her supposed acquiescence in what is called a partition of the testator’s lands; and that they might also presume that it had been done by the order of a competent tribunal. In respect to the first, it must be remembered that the plaintiff was an infant when her father died, a minor when she married, and continued covert until within a short time before she brought this suit.

Under such circumstance of disability to pursue her rights in her father’s estate with the aid of the law, no presumption can rightly be made against her.

The rule in such a case is, that, when a person is under a legal incapacity to litigate a right in a court of justice, and there has been no relinquishment of it by contract,' a release of it cannot be p jsumed from circumstances over which the person has had no control, happening before the incapacity to sue has been removed. • It is á general rule, having however a particular bearing in favor of married women, from the relations in which they are placed to property, and the legal disabilities resulting from coverture. It' is not necessary to enumerate the latter.

One of them is, that she cannot sue, without the assent and association of her husband, for any property which she owns, or to which she .may become entitled in any of the ways in ’ which that may occur. For this cause it is, that.statutes, of limitation do not run against them during coverture. ’ The plaintiff here was protected by that of the State of Tennessee.

No presumption could be made to defeat its protection, from anyjconduet imputed to her, or from her husband and herself having had for any length of time a part of the testator’s lands in their possession, or from any sale made of it by her. husband in which she may have joined. The law will presume it to have been done under the coercion of her husband.

The fact mostly relied upon for the presumption, which the jury were told they might make, was her haying united with her husband in making a sale to her brother of the land put into their possession by her father’s executor, and that she subsequently acknowledged it when discovert. The last was no more than a correct avowal that it had been done, and that the deed was operative for so much of the land as it conveyed of that larger portion to which .she was entitled out of her father’s estate!

Her brother, who had received a larger portion, knew very well with whom he was dealing, and the evidence shows that hfe could not have bought without knowing his sister’s discontent with the division which had been made of the estate; and that her rights Were only not asserted, to the extent of them, against himself and her other brothers, becausé she had no one to do for her, and could not then do for herself. We think that the exception taken to this part of the instructions must be maintained, and it is so,.by this court.

The point still to be noticed is so much of the instruction given to the jury, informing them that they might presume from the evidence that there had been a legal partition of the testator’s, land in respect to his daughters by order of a court, when the executor assigned them certain parts of it. By the law of Tennessee, such a partition is a judicial act and becomes a record. It can only be proved as such records may be, and when it is alleged to have been lost or destroyed, its contents can only be reached by proofs of a certain and fixed kind well known in the law.

In the proper sense of the term ;presumed, the records, of courts are never so. The existence of an ancient record of another kind may sometimes be established by presumptive .evidence. But that is' not done without very probable proof that it once existed, and until its loss is satisfactorily accounted for. The rule in respect to judicial records is, that,rbefore inferior evidence can be received of their contents, their existence and loss must be clearly accounted for.

It must be shown that there was such a record, that it has been lost or destroyed, or is otherwise incapable of being produced; or that its mutilation from time or accident, has made it illegible. In this last, though, not without the production of the original in the condition in which it may be. The inferior evidence to establish the existence of a judicial record must be something officially connected with it, such as the journals of the court, or some other entry, though short of the judgment or record, which shows that it has been judicially made.

The burning of an office and of its records is no proof that a particular record had ever existed... It only lays the foundation for the inferior evidence. If that cannot be got, the result must be, and is, that there has been an allegation of the existence of a record, without proof. There is no way of bringing it to the knowledge of others.. Nor can it be said to be known certainly by him who asserts it.

In this case, without any such proof, the jury was told that they might infer from the burning of the records of the county of Mero, arad the conduct of the parties interested in'the*testator’s lands, that there had been a partition according to law. If the instruction is put exclusively upon the want of proof to justify it, it could not-be maintained. But it was contrary to the positive proof in the record. There is proof that the lands assigned to thé daughters of the testator had been done by their unde and their father’s executor, without any legal order.of partition..

Hall says, Isaac Bledsoe, the executor, laid off the land to the four daughters of the testator in 1793. .

We will give his words. “ About the time that Isaac Bledsoe was about to lay off the land to. the four oldest daughters, witness was present, to wit, in 1793; and witness asked him w,hat he considered would be' a small tract of land under the will, when Colonel Bledsoe observed to him, that less than 320 acres yvould nqt make a good plantation, and that he intended to-give his own daughters 320 acres each; and that he. intended to assign to his brother’s daughters 320 acres of the best of the land out of the Greenfield survey, and done so.” The proof is positive, that the portions of that survey subsequently occupied by the daughters and their husbands, were assigned to them by tbe executor upon his own construction of the will, and without any order for a partition by any court .

It repels all contrary inferences from any other evidence in the case. We have sought to put this case upon the plainest footing in the shortest way; and without much which might have been written in support of our conclusion, from an unwillingness to embarrass it with what might, have been proper, but which is not necessary. The judgment of the Circuit Court is reversed. Order. This cause came oh to be heard oii the transcript of the record from the Circuit Court of the United States for the Middle District of Tennessee, and was argued by counsel.

On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court .in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de nova.