#### JOSEPH P. TIMBERLAKE AND OTHERS *vs.*SAMUEL HARRIS & AL.

A testator by he will gaye and bequeathed *11 to,the heirs*of S. G. six hunched dollars.5* In another clause of bis will he gave to A. and B., *“*sons of W . five hundred dollars each,” and, in anoílier-cfausc, to the *seven children*of G. T. two hundred dollars each.” S. G. is still living.

*Held,*that the bequest **( to the*heirs” of T. G. was void for vagueness and uncertainty. ‘ '

Cause removed to the Supi-eme Court, by consent of the parties, from the Court of Equity of Franklin Couniy,. at the Fall Term 1850.

Drury Jones died in January 1847, having made his last will and testament, which was duly admitted to probate.— The only clauses of the will, material in this suit, were the following: 1st., I give and bequeath to Julius Sidney and Algernon Joyner, sons of William H. Joyner, live hundred dollars each, &c.” “ 3rd, I give and bequeath to Sarah

Ann Baker, daughter of Kemp, two hundred dollars. 4th, I give and bequeath to William Jones, son of Benjamin, two hundred dollars. 7th, I give and bequeath to the seven children'of Julius Timberlake dec., two,hundred dollars each. 13th, *I give and bequeath to the heirs of Samuel Jones six hundred dollars*

The. question submitted by the pleadings in this case, was whether the bequest *to the heirs of Samuel Jones*was or was not valid.

*Busbee,*for the plaintiff.

*B. F. Moore,*for the defendant.

Pearson, J.

The will of Drury Jones has this clause : “Item 13: I give and bequeath to *the heirs*of Samuel *189Jones, six hundred dollars.”' Samuel Jones is living, and,' of course, has no *heirs*— “ *nemo est heaves vivsntis*and' the question is, what did the testator mean ?

He says : “ Item 1 : 1 giro to Julius and Algernon Joiner,. *sons*of William II. Joiner, five hundred dollars each > and in “ item 7, I give to the seven *children*of Julius Tim--berlake, *dec’d,*two hundred dollars each.”

The general rule is, that a will or other writing cannot be added to, varied, or *explained*by parol evidence, *but must speak for itself.*In fitting the description to the person or thing, of course parol evidence must be resorted to; as, if a deed says, “ beginning at a black oak and running thence, &c.,” what black oak, must be determined by parol evidence. So, if a will says, “I give to my nephew John,” what individual was meant, must be determined by parol evidence; or “ I give my white horse,” what horse was meant, must be determined in the same way. So, if a testator says, I give to the “ captain,” who was meant by this soubriquet or nick-name must be ascertained by proving, that he was in the habit of calling a certain person “ captain.”

In our case, the difficulty is not in fitting the description'' to the person or thing, but in ascertaining what the de. scription means. What did he mean by the *heirs*of Samuel Jones ? Taken literally, Samuel Jones had n& heirs,1 because he was alive. Admitting it to be competent to prove, by way of explanation, that the testator knew, that’ Samuel Jones was alive, can any one say, what he meant by “the heirs of Samuel Jones ?” In speaking-of.the Tim-.1 berlakes, he says, “ *the children of Julius Timberlake dec’d,”*and in speaking of the Joiners, he says, “the *sons*of William H. Joiner.” We-cannot suppose, that by the words,■« “ heirs of Samuel Jones,” he meant the children of Jones for, if so, why did he not say “children,” as he had done in reference to the Timberlakes. Ho must have, had some reason for varying the expression.. . At all events, we'.-are *190nót at liberty to depart from the proper meaning of the word “ heirs,” and give to it the same meaning as to the word “children,” which the testator had just before used.

It may be, he meant by the word “ heirs,” to include the children and *grandchildren,*or the descendants of Samuel Jones. We cannot say — and are obliged to declare, that we are unable to say, what the testator meant; and the legacy is void for vagueness and uncertainty.

The will must be construed as if item 13 were stricken out. There is no other difficulty suggested.

Per Curiam. Decree accordingly.