*Georgetown.*

Heard by Chancellor Desaussure, and afterwards by Chancellor James.

c¿se janf

#### The administratrix of Erasmus Rothmahler *vs.*J. Myers, M. Myers and Soloman Cohen, Executors of Abraham Cohen.

Parol evidence, even of the person who drew the will, and who is-of unimpeachable character, rejected, when offered to support the allegation of a mistake in the will, and to prove that the testator intended to dispose of the property in a manner not apparent on the face of the Will. But such was the obscurity of the will, that the testimony, if it had been received, would not have explained it.

If a legacy be given to an executor in that character, he cannot fake it, unless he qualifies and makes himself executor.

Where the will is so obscure that the court cannot discern the in. tentionof the testator, the legacy fails, and the property will pass under the residuary clause.

*216FEB’Y 1812.

The bill states that Abraham Cohen being possessed of a large estate, real and personal, made his will on the 25th May 1800, and appointed the following persons as executors: Solomon Cohen, Moses Myers, Jacob Myers, — Isaac Cohen, and Jacob Cohen, (when they shall be twenty-one,) Thomas Waties and Erasmus Rothmahler. That in the will the testator introduces the following clause :—

*“*Item, I give and bequeath to my executors herein after named, and the survivor and survivors of them, his executors and administrators, eight negroes, viz, Cmsar, Rose, Harry, Binah, and her four children, Lucy, Judy, Billy and Tom, with the issue and increase of the females : Also, all my household and kitchen furniture of every kind, (except such as may he hereinafter specially given away,) together with all iny stock of cat-, tie, riding chair, horses and horse cart: In trust, nevertheless, to and for the uses, intents and purposes herein after mentioned and declared of and concerning the lot No. 54, and to and for the sole benefit, use and behoof of Margaret NB'Wlfhrter during her life, so as that the said goods and chattels should not be at the disposal of, or liable to the debts and engagements of her p declaring-it to he my will, that from and immediately after the death'of Margaret M‘Wharter, herein before mentioned, that the above described goods and chattels shall he Squally divided between them.”

That the testator died, leaving Margaret M‘Whar~, ter alive : — That Solomon Cohen, Moses Myers and Jacob Myers qualified as executors, and that Isaac Cohen,one of the named executors, died before 21. That Margaret M‘Whartcv died some time in the year 1806, and that the executors Cohen, and Jacob and Moses Myers, have from the death of the testator until the present time, had the negroes in possession. That the said personal estate on the death of Margaret M‘Wharter, became distributable in equal shares among the executors, and that the complainant as administrator, is entitled to the one sixth. The bill then prays fox’ an account and discovery.

*217The answer admits the will, and the possession oí the personal property by defendants; — hut charges that Erasmus Rothm abler, intestate of the complainant, never did qualify. They further say that there are three claimants to the above property ; First, Mrs. Minis, formerly Dinah Cohen: Secondly,. — Esther and Sarah Myers, nieces of testator: Thirdly, — the residuary legatees.

That Mrs. Minis claims, because that immediately preceding the clause of the will under which the executors claim, there is a clause to this effect: “ ítem, I devise unto my executors herein after named, and the survivor or survivors of them, my lot of land, No. 54, on Prince’s street, in trust and for the use of Margaret M‘Wharter, during life ; and after her death, then I give and devise the premises to my niece, Dinah Cohen, and her heirs and assigns. That this clause of the will is connected with the words lot No. 54, in the clause of the will under which the execut proves by evident construction what the intended here under the words divided equally be*

That Esther and Sarah Myers, tees in a clause subsequent to that uni executors claim, in the following manner: vise unto my nieces Sarah and Esther survivors of them, the house and lot No. 55, on which I now reside, in Prince’s street.” These persons contend that the concluding words *“*divided equally between them,” of the clause under which the executors claim, refers to them. That they can adduce parol testimony to prove that this was intended by those words by the testator. *$*

That the residuary legatees contend, that the clause under wrhieh the executors claim is unintelligible, and the legacy therefore lapsed, and that it falls into the residuum. That by consent, these claimants are considered as parties to the bill. Under these circumstances ef doubt, they pi-ay tbe direction of the court.

On the coming on of this case before Chancellor Desaussure, it was moved on the part of the defendants, that the person who had received the instructions of the *218testator, and bad made the draught* of the will, should ;J0 examined, in order to explain who was intended by tee testator to have the property in controversy. It ap-pcarnl that the testator devised the lot No. 54, and build* tegs, (in Georgetown,) in trust for a free woman named Peggy, for life, and after her death to Dinah Cohen and her heirs. And he also devised to his executors eight negroes, (by name,) with their issue, and some house furniture, *“*in trust for the uses and to the pmpo-es hereinafter mentioned, and declared of and concerning lot No. 54.*’ But it appears that the lot No. 54 is not afterward,® mentioned $ having been mentioned befo; e: and it was lot No. 55, which is in fact afterwards mentioned in the will; and is disposed of differently from lot No. 54, being devised to the testator’s two nieces, the Misses Myers. There was also a residuary clause in favor of his brother, and his nephews and his nieces.

It was argued by Mr. Richardson, the attorney general, that the will being so doubtful, that the intention of the testator cannot be learned from it, it was necessary to resort to parol evidence to ascertain what the intention was, in order to give effect to it. Transpose the clauses as to the lots No. 54 and 55, and the will becomes intelligible, and the intention manifest. And this transposition is sometimes made to get at the intention of the testator — 4 Bro. C. C. 472, Fonnereau *vs.*Poyata *; S*Vezey, 140, Abbot *vs.*Massey.

The object of the motion is to introduce the parol testimony of the person who drew the will, to shew the. mistake, and poi»J; out the object of the testator’s bounty. *It*is not to contravene the will, but to give effect to it.— See 1 Vezey, 331, Goodinge ns. G-uodinge; 2 Vezey, 216, Hampshire *vs.*Peirce j 1 P. Williams, 674, Attorney general *vs.*Hudson; and Roberts on Frauds, p. 20.

Mr. Mitchell, for the complainant,

argued, that there is no such ambiguity on the face of this will as requires explanation. That if the testator intended to be-qorath the property in the. disputed clause, to the executors, no other words more apt could be used than those *219.actually used. Parol evidence then, is not wanted to explain what is clear. But if the will was not so clear, the ambiguity is not of that kind which the court suffers to be explained by parol evidence. It is not an ambigui-tas latens, which is explainable by evidence, but ambi-guitas patens, which is not so explainable. — See Roberts on Frauds, page 16 ; 2 P. Williams, 141.

In the cases where parol evidence has been received, the ambiguity has been respecting the name and not the person of the legatee.

Chancellor. Desaussure made the following order:

In this case a motion is made to examine a witness who is said to have drawn the will of the testator, as to the. intention of the testator, in the disposition of several negroes and some furniture.

It was argued on the part of the complainant that there was no ambiguity on the face of the will, which required any explanation by extrinsic evidence, j for that it was manifest the testator intended to bequeath this property to the. executors. And again, that if there was an ambiguity, it was an ambiguitas patens *;*in which case the court never resorted to parol evidence to explain a will.

On the part of the defendant it was insisted, that there was an ambiguity, which if not allowed to be explained by parol evidence, would defeat the intent of the testator, and prevent the will from having any effect as to the property in question. That the ambiguity related to the persons whom the testator intended to benefit, and that the court generally admitted parol evidence, to explain to whom the testator intended to bequeath, where there was any ambiguity on that point. That there was a palpable- mistake in the clause in the will under consideration, as it referred to a subsequent clause in his wilij wherein he says, he devised his lot No. 54, conformably to which be intended the property nowin dispute should goq whereas, in fact, the subsequent clause referred to, did not dispose of the lot No. 54, bat the lot No. *53*; whilst the devise of the lot No. 54, had been made, in a clause preceding the contested clause bequeathing the negroes.— *220That this mistake could be explained by *the*person employed to draw the will, and then the testator’s intention would be made plain, and his will could take effect.

I have considered the arguments, and I have examined the cases cited by the counsel on both sides, and many others which have occurred to me; and if it were my intention to decide this point definitively at this time, I would go very fully into this very delicate and difficult question. I perceive there are great ambiguities in this will, and the court wants light. But there is no occasion to make a definitive decision at this time, because in this court, the parol proofs are generally permitted to be gone into without prejudice — See Roberts on Frauds, page 31, mote 16. And when the evidence is before the judge who tries the cause, he can see precisely what is the proof offered, and can decide upon its admissibility much better than the court now can, where it is a mere suggestion of what the parties expect to be able to prove.

This course appears preferable, as it will tend to the more speedy determination of the cause. For if I should now undertake to decide the question, I would refuse the evidence offered, and if an appeal should be made and the court of appeals should be of opinion that the evidence should have been received, the cause would be sent down to be tried, with directions to receive the evidence offered $ and upon the decree of the court on the merits, there might be another appeal from that decree. Whereas, by the course I propose to pursue, the evidence may be taken without prejudice, and offered to the judge who may try the cause, and his decree oil the whole case, whether founded on such parol evidence or not, might form the subject of one appeal, which would be definitive.

I shall therefore direct the examination of the witness offered, to be *taken*without prejudice, and *to be*offered at the trial of the cause to the judge who may try it, who wilt be better able to judge if the testimony actually given is admissible, within the cautious rules which reason and the authority of the decided cases has prescribed for the conduct of the court. In giving this permission to examine the witness, it is not my intention to *221prescribe, the limits of the examination : I shall leave this to the judgment of the parties to offer what they please to the future presiding judge, who will receive what lie may deem admissible within the rules heretofore established. But I must be permitted to say, that I have no idea that parol testimony can be received to the great and dangerous extent, proposed by the defendant’s counsel in the paper handed to me.* In the proposed examination I would particularly recommend an enquiry from the witness, whether there was any mistake in the description of the lot, to w hich reference is made in the contested clause by the No. 54 ; and to say whether the testator meant No. 54 or No. 55, which last is the only one devised in the subsequent part of the will $ and which if clearly explained by the parol testimony, (and received by the judge,) would tend more to the elucidation of the difficulty, than any thing else within the range of admissible testimony.

Let the witness he examined on interrogatories without prejudice — and the examination when taken to be submitted to the judge who may try this cause, to be admitted or rejected, in whole or in part, as to him may appear to be correct.

The witness was accordingly examined, and the catise came to a hearing before chancellor James. The evidence was produced, but finally rejected by the judge.

The case was argued as follows:

Mr. Blanding for defendants, contends,

that the clause in question relates to No. 55, and that No 54 is mentioned by mistake. The word «them,” must relate. *222to the two nieces altee mentioned, to whom lot 55 was given, and not to Dinah Cohen to whom-Iot 54 was given. Boberls on Frauds, 28$ 2 P. Williams, 135, Harrises, B. London $ Sel wood ns. Mddmay, 3 Vezey jr. 306 j Roberts on Wilis, 326$ 232.

Mr. Sillhuan for Dinah Cohen, insists upon the. wording of the will, and number 54 coresponding with the number of the lot devised to Dinah Cohen. Bj the word <v them,0’ he meant the heirs of D. Cohen, men-tioued in first clause.

Blanding for Esther and Sarah Myers.

-Dinah Cohen cannot take. The number of the lot not so much present in his mind as the disposition over. “ To he equally divided between,” B. C. would be absurd. The word “ them,” cannot apply to her, but to Esther and -Sarah Myers. The executors cannot take: They not being the objects of his bounty — 7 Bac. 343.

The apparent intention is to *be the*pole star. The property is given to the executors only upon trust. To give it to them absolutely, would be contrary to the intent that they should have only a trust. The execut'-r cannot take as such unless he qualify — 3 Yczey jr. 148, Abbot *vs.*Massey. .The master refused to admit evidence to prove who V. G. was, hut the chancellor over-ruled his decision. Pow, on Dev. 411. If the devises fail, the residuary legatees in this case must take.

Carr for D. Cohen

-6 Vezey jr. 397, Druce *vs.*Dennison. The ambiguity not a latent one. In all the bequests to Dinah Cohen, she takes only remainders. This is a remainder.

Mitchell for Complainant

The executors are the first persons introduced into the clause, and the word « them” can only refer to executors as the antecedent.

That construction is to be adopted which is most favored by the words — 2 Atk. 372.

There is a clause between the clause above, and the one in favor of Miss Myers’s.

The chancellor delivered the following decree :

The question to be considered in this case, arises out of three clauses in the will of Abraham Cohen, which are to the following effect:

*223First clause, — “ Item, I devise unto *my*executors herein after named, and the survivors or survivor of them, my lot of land, number fifty-four, on Princes street, in trust for the use of Margaret M‘WLarter during *life;*and after her death., then I give and devise the premises to my niece Dinah Cohen, her heirs and assigns.”

Second clause, — “ I give and bequeath unto my executors herein after named, and the survivors or survivor of them, eight negroes, (naming them.) Also, my household and kitchen furniture, Ac, in trust for the uses hereinafter mentioned and declared, of and concerning the lot No. 54, and for the sole use of Margaret M^Vharter during her life ; and al ter her death, that the above described goods and chattels shall be equally divided between them.”

Third clause, — “I devise unto my nieces Sarah Myers and Esther Myers, or the survivor of them, the house and lot (No. 55) fifty-five, on which 1 now reside, in Princes street.”

Erasmus Rothmahler was one ofthe executors named, in the will of Abraham Cohen, but did not qualify, and his administratrix, by her will now claims a part of the personal property mentioned in the second clause above cited, on the ground that the words “ shall he divided equally between them,” can relate only to the word “ executors,” as their proper antecedent. Her claim, therefore, is founded on grammatical construction alone. But I cannot think the complainant is entitled under the wiilj because the testator has discovered no intention to give the executors any thing expressly, either by stating that it was on account of bis friendship for them, or on account of their trouble, in the management of his estate. But admitting that the legacy had been given expressly1' to Erasmus Rothmahler, upon the authority of the case cited, he could not have entitled himself to it, unless he had acted as executor. See Abbot *ds.*Massie, 3 Vez¡ey jr. 148. Besides, if these reasons were not unfficientp to make the executors trustees, to preserve a remainder which they were themselves to take, would be entirely *224unprecedented. If the second clause had stood singly> a construction in favor of the executors upon grammatical rules mi gut prevail, but the context does away every presumption in their favor. A will is not to be construed per p&rcella, but by the entirety : and to support the intention, a construction may be made upon the whole will, even against strict grammatical rules. Thus far as to the claim of the complainant, which is the only question made by the bill.

The answer has brought into view two other conflicting claims. The first is that of Dinah Cohen, now Mrs. Minis, under the first clause j and the second is that of the other two nieces, Sarah and Esther, under the third clause.

Mrs, Minis claims all the negroes and other property mentioned m the second clause, because that by it the said property was to pass in and for the uses declared concerning the lot 54. Now after the life estate, the uses of the lot 54 were declared to be for her-; and so she contends ought also the uses of the negroes. That to effectuate this, it would be only necessary to rectify a mistake of the testator, and instead of the words “ herein after mentioned,” to read the words *(t*herein before mentioned,” in the second clause of the will recited as above.

On the other hand, the other two nieces urge that the words, “ lot No. 54” have been used by mistake of the testator, in the second clause, instead of the *“*No. 55,” and that if the court would only rectify this small error in the will, it is plain they would be entitled to the property. '

Such are the claims of the three nieces: the first, praying for a greater, and the two last for a lesser alteration of the will. Perhaps the intention of the testator was to leave the. property in question equally among them. I was much 1 inclined on the first opening of the case to think so, and therefore referred it to the commissioner to report, how their portions, under the will, would stand in the scale of equality, if the one third of the personal property were added to them respectively. In the mean time I examined the context, to see if such intent could *225be discovered from the general scope of the instrument, such intention however does not appear to be clearly expressed, and the difficulty seems to be inexplicable. The ambiguity is inherent in the will itself; it is according to the legal phrase, a patent ambiguity, and cannot be explained by extrinsic evidence. It is a case of the absolute omission of the names of legatees ; and nearly the same, as where a blank is left for the insertion of such names, in which case parole evidence is always excluded — See 3 Atk. 257, by Lord Hardwicke, in which the difficulty does not appear to have been so great as in the present case. I am well aware that the doctrine in favor of legatees has been considerably extended by more modern decisions. This sufficiently appears from the cases of Dobson vs. Waterman, and Selwood *vs.*Mildmay, cited by the counsel from Sd. Yes. jr. 306.

In the first of these cases the testator bequeathed to J. D. *7001.*in three per cent consolidatedlmnk annuities, and was not at the time of making his will, or of his death, possessed of any such annuities, but owned 1800Í. three per cent south sea annuities. In the second case the testator bequeathed to his wife during life, the interest of 1250L part of his stock in the four per cent annuities of the bank Of England ; and after her death to other legatees. It turned out that the testator had no such stock, but at the time of his death was possessed of *137l.*per annum, in long annuities. In both eases, the ambiguity was decided to be latent; a resort was liad to extrinsic evidence; the mistakes were naturally accounted for, and rectified, and the legacies were established, to be paid out of the stock, which the testator died possessed of. In the the present case, it was contended, and I think properly, that parole evidence was inadmissible. However it was admitted by the court withoutprejudice, on the authority of the standing rule, to that effect, in equity. But the witness has not been able to solve the difficulty; He is not able to account for the mistake, as was done in the cases cited, and he even tells us that the .ambiguity is to him inexplicable. This makes a wide difference. In the cases cited, the mistakes could be recib *226fied by the state-of facts■; in the principal case they cannot be rectified, either by the context, or the state of facts. The words, *“*to be divided equally between them,” referring to nobody, are vague and uncertain. To give them any sense, I must add legatees, which would not be to explain, but to make a will. I am therefore of opinion that the nieces cannot take under the second clause of the will above cited; and that according to the rule of law in such cases where a legacy fails as to a particular object, it must pass to those entitled under the residuary clause.

Therefore it is decreed, that the property in dispute *be*equally divided between Solomon Cohen, the brother of the testator, and his nephews and nieces in the will mentioned, who were alive at the time" of his death, agreeably to the terms of the last mentioned clause, and let the complainunt’s bill be dismissed with costs.

W. D. James.

*

 Not even under the sanction of the cases of Abbot *vs.*Massu, 5 Vezey, jr. 148 ; Fonnreau vs. Poynts, 1 Brown, C. C.472; Selwood *vs.*Mildmay, 3 Vezey jr. 306; and a case in 1 Vezey jr. 259: Nor even under the authority of Hampshire *vs. P*erce, 2 Vezey, 216 ; Pultncy *vs. B*arlington, 1 Brown, C. C. 177; and 6 Vezey jr. 385, Druce *vs.*Dennison. These cases do go a great way indeed 1o let in parol evidence extrinsic-to the w-U, to explain it, or rather +o inform the court what was Entendedlo be given, and. thereby to give effect to a will which would «thenvisefa.l from ns incurable amb.gu.ity. But they do notgo toj-ht «stent the defendants contend for.

From this decree there was an appeal on the following grounds:

First, — Because the decree was contrary to the evident intention of the testator.

Second, — Because, that by the words of the testator, according to their true import and grammatical construction, the complainant as administratrix, was entitled to one sixth of the personal estate.

Third, — Because the opinion of the chancellor that an executor who had not qualified, was not entitled to a legacy, is contrary to law.

The appeal came to a hearing at Columbia. — Present, Chancellors Desaussure, Gaiilard, Waties, James and Thompson.

After argument, the court unanimously affirmed the decree.