W. Hunt, Adm'r et al. v. S. A. White, next friend, &c., 24 Tex. 643

Wheeler, C. J. It is not questioned, that by the law of this' state, in order to effectuate the manumission of a slave by will, provision must be made for the removal of the slave out of the state. This was the conclusion deduced from an examination of our constitution and laws upon this subject, in the case of Purvis v. Sherrod, 12 Texas Rep. 140; and its correctness is not controverted. A re-examination of that question is therefore unnecessary.

And it results, that there cannot be, in this state, an implied manumission of a slave, in any of the modes known to the civil law, or the laws of those states where inanumission may be effected without the observance of any legal formalities, and there is no restriction upon the exercise of the power of manumission. (Cobb on Slavery, ch. 21, § 380.) The bequest of property to a slave, cannot operate his emancipation in this state; because manumission, to take effect within the state, is contrary to its laws and public policy, which prohibit the introduction or residence of free negroes within its limits.

The will here in question, contains no clause expressly manumitting these slaves. The intention to manumit, can be derived only by implication, from the bequest to them of property, and some expressions in the will, which seem to contemplate their continued residence in the state, in the enjoyment of freedom and property. But these provisions cannot be held to effectuate their freedom, being in contravention of the laws and declared public policy of the state. “In several of the states,” says Mr.

Cobb, in his Treatise on Slavery, p. 290, § 344, “ domestic manumission, that is, manumission to take effect within the state, is prohibited, the increase of free negroes being declared against their policy. Of course, all deeds or wills attempting to manumit, in opposition to such policy, are fro tanto void. But even in these states, it is allowed by deed or will, to provide for the immediate transfer of the slaves to some other state or country, where manumission is allowed, for the purpose of being there emancipated.

If, however, the provision is made for a future emigration for that purpose, it would be void; it being in contravention of that public policy, to increase the number of statu liberi within the limits of the state.” This will contains no provision for the removal of the slaves out of the state; but on the contrary, seems to contemplate their remaining in the state, in the enjoyment of freedom. In so far it is in contravention of law, and consequently void.

It is not contended, that the written will effectuates the manumission of these slaves; but it is insisted, that they are entitled to their freedom, by virtue of the parol “ explanation,” by the witnesses to the will, which accompanied its probate and registration in the County Court; and the question is, whether the omission in the will to provide for the emancipation of the testator’s slaves, can be thus supplied by parol.

It is insisted, that it can be, in the exercise of the equitable powers of ,the court, to grant relief in cases of accident and mistake, and that the court may reform the will, so as to make it express the intention of the testator, as deposed to by the witnesses. But it must be observed, that the power of a court of chancery to grant relief in cases of mistake in written instruments, does not go to the extent of adding to or changing the nature and legal import of the writing.

That would be to contravene the rule, which obtains as well in courts of chancery as in courts of law, that parol contemporaneous evidence is inadmissible, to contradict or vary the terms of a valid written instrument. The case of wills does not constitute an exception to the application of this rule. This subject is very fully treated of by Mr.

Jarman, in his Treatise on Wills, (vol. 1, ch. 14,) where it is shown, by reference to numerous authorities, that the doctrine is well settled, that the courts will not permit parol evidence to be adduced, either to contradict, add to, or explain the contents of a will; and the principle of this rule, (it is said,) evidently demands an inflexible adherence to it, even where the consequence is the partial or total failure of the testator’s intended disposition. Mr.

Jarman adds: “Ho principle connected with the law of wills is more firmly established, or more familiar in its application, than this; and it seems to have been acted upon by the judges, as well of early as of later times, with a cordiality and steadiness, which show how entirely it coincided with their own views.” “ Thus, (among many instances,) in the case of Strode v.

Lady Falkland, letters and oral declarations of the testator being offered, to prove the intention to include a reversion, in the words, ‘ all other my lands, tenements, and hereditaments, out of settlement,’ it was unanimously agreed by the Lord Chancellor, (Cowpeb,) Lord Chief Justice, and Master of the Rolls, that this kind of evidence could not be admitted ; for that, where a will was doubtful or 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.” (1 Jarman on Wills, 350.) And in entire accordance with this are all the authorities.

Accordingly, it has been laid down, that extrinsic evidence of intention, as an independent fact, is inadmissible, for the purpose of filling up a total blank in a will; or of supplying a devise, or any other material provision, term, or qualification, omitted by mistake; and that, for this purpose, the clearest oral declarations of intent, are inadmissible. (2 Cow. & Hill’s notes to Phil. Ev., n. 271, to p. 313; 2 Phil.

Ev. ch. 7, § 2.) “A fortiori, parol evidence is not admissible to supply any clause or word which may have been inadvertently omitted by the person drawing or copying the will.” (1 Jarman on Wills, 353; 2 Phil. Ev. ch. 7, § 2.) It is needless to multiply authorities, in support of a doctrine so elementary and familiar.

It is competent to admit parol evidence, as it is sometimes though not very accurately expressed, to explain a will, (or other written instrument,) by showing the situation of the testator, in his relation to persons and things around him; or, as it is often expressed, by proof of the surrounding circumstances; in order that his will may be read in the light of the circumstances in which he was placed at the time of making it. His intent must be ascertained from the meaning of the words in the instrument,-and from those words alone.

But as he may be supposed to have used language, with reference to the situation in which he was placed, to the state of his family, his property, and other circumstances relating to himself individually and to his affairs, the law admits extrinsic evidence of those facts and circumstances, to enable the court to discover the meaning attached by the testator to the words used in the will, and to apply them to the particular facts of the case.

For this purpose, every material fact that will enable the court to identify the persons or things mentioned in the instrument, is admissible, in order to place the court, whose province it is to determine the meaning of the words, as near as may be, in the situation of the testator, when he used them in making his will. Thus, it is said by Mr.

Wigram: “ Eor the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.

The same, (it is conceived,) is true of every other disputed point, respecting which it can be shown, that a true knowledge of extrinsic facts can, in any way, be made ancillary to the right

interpretation of a testator’s words.” (Wigram on Wills, 53, 3d ed.) In this way, extrinsic evidence may aid in arriving at the intention of the testator, by showing in what sense he employed the language he has used in his will; and for this purpose, that is, to enable the court to understand the meaning of the words in the instrument, parol evidence is admissible; but never for the purpose of proving other language declaring his meaning, than that which is contained in the instrument itself. That would be, in the language of a learned authority, (2 Phil.

Ev. 305,) “ inconsistent with the rule which reason and sense lay down, and which has been universally established for the construction of wills, namely, that the testator’s intention is to be collected from the words used in the will, and that words which he has not used cannot be added.” (And see 1 Grreenl.

Ev. § 288, et seq.) “ In regard to mistakes in wills, (says Judge Story,) there is no doubt, that courts of equity have jurisdiction to correct them, when they are apparent upon the face of the will, or may be made out by a due construction of its terms.” “ But then, the mistake must be apparent on the face of the will, otherwise, there can he no relief.” There is no mistake apparent on the face of the will in this case ; none that can be made out by a due construction of its terms ; and it manifestly is not a case for relief in equity, on the ground of mistake or accident.

The will is complete in itself, and formal in its execution. What is proposed by the parol evidence is, to add to the will an independent substantive bequest, and to make it speak upon a subject on which it is altogether silent.

It is not proposed to call in extrinsic evidence, to enable the court to arrive at the meaning of the testator’s language, used in the will itself, but to introduce into the will an intention not apparent upon its face, and different from that which the language used imports, by the proof of other language, not contained in the will: in effect, to make a new devise for the testator, which he is supposed to have omitted, and not quite consistent with that he has made.

The effect of the admission of such evidence, would be, that the will, though made and executed with the requisite legal solemnities, by the testator, in his lifetime, would really and in fact, be made by the witnesses, after his death. It is unnecessary to advert to the danger of admitting such evidence. It is sufficient, that there is no authority for it in the law; that it would destroy all the guards intended to be secured by the statute of frauds, and the statute concerning wills, for the prevention of frauds and perjuries; and would contravene the clearest and best established principles and rules of law.

The parol “ explanation” cannot be sustained as a nuncupative will, if it were competent to emancipate a slave by such a will. It is not pretended, that the testator made more than one will. That cannot be both a written and nuncupative will; or partly written and partly nuncupative. It is one or the other; it cannot be both. It was duly probated as a written will. As such it must stand or fall. It has been decided in one case, in Kentucky, that a paper not perfected as a written will, may be established as a nuncupative will, where its completion was prevented by the act of God. (Offutt v. Offutt, 3 B.

Monr. 162.) This case was referred to by the Supreme Court of Pennsylvania, in the case of Porter’s Appeal, 10 Barr, 254, and it was supposed to have depended much on the peculiarity of the Kentucky statute. But there is no case which decides that the same testamentary disposition may he established, both as a written and nuncupative will; or that omissions in a written will may be supplied, by proving the omitted matter as a nuncupative will.

That would contravene the rule we have considered, which excludes parol evidence of other language declaring the intention of the testator, than that which is contained in the will itself. ¡Nuncupative wills are not favorites of the courts.

The whole scope and policy of the law, it has been said, is, that when there is time, the will must be written; but when there is not time, a verbal disposition of the personal estate alone is allowed, in extremity. (10 Barr, 260.) Independently of the statute of frauds, the factum of a nuncupative will requires to be proved by evidence more strict than that of a written one, in every single particular.

This is owing to the facilities with which frauds, in setting up nuncupative wills, are obviously attended. (1 Williams on Executors, 101.) There was no intention, on the part of the testator, to make a nuncupative will. The witnesses were not called on to witness such a will. They were called to witness the written will.

As was observed by the court, in a case before cited, (10 Barr, 260,) “ if that was left incomplete by the wilfulness or ignorance of the scrivener, the courts cannot, therefore, make a nuncupative will, against the will of the deceased, and thereby let in a dangerous precedent upon society.” Moreover, the proposed “ explanation” was not probated as a nuncupative will. (Hart. Dig.

Art. 3257, 3261.) Our conclusion is, that there was no bequest of freedom to the appellees, which the well settled principles of law will authorize a court, either of law or equity, to recognize and enforce; and that the judgment of the court, overruling the demurrer to the petition, and giving judgment for the appellees, is erroneous, and must be reversed, and the cause remanded. Reversed and remanded.