#### *Moses S. McCall*vs. *James S. McCall et al.*

Testatrix, Raving sixty-four negroes, made her mil by which she bequeathed sixty-two by name : of the sixty-two, sixty were properly named, and two were bequeathed by the names of *Little Harry*and *Alonzo*; she had no negroes by those names, but had four not named in the will, to wit, *Little Harriet, Manza,*Lydia and Tom: by a codicil she bequeathed Lydia and Tom as negroes not named in her *will:*— Held, that *Little Harriet*and *Manza*passed under the bequest of *Little Harry*and *Alonzo.*

*Before*JOHNSTON,-Ch., *at Darlington, February,*1851.

This case arose out of tbe will of tbe late Mrs. Hannab Sanders, of Darlington.

The testatrix died tbe 13th of April, 1847. By tbe 7th clause of her will, which was duly executed the 20th of January, 1844, she bequeathed as follows:

To Moses McCall (the plaintiff) “ I give and bequeath the following negroes,, to wit: Betty, August, Eliza, Philip, *Little Marry*and *Alonzo,”*in trust “for the sole and separate use, benefit and behoof of Elizabeth IT. Haynsworth, wife of Thomas B. Haynsworth.”

The will contained a residuary clause, by which the testatrix gave one half the rest and residue of her estate to James S. *448McCall, and directed that the other be sold, and the proceeds laid out in the purchase of negroes, for the use and benefit of the children of James M. Sanders.

It appeared at the hearing, that the testatrix employed eminent counsel to draw her will. That when her lawyer was taking notes for the draft of it, she directed him to dispose of Betty, August and Eliza, with' Eliza’s children, in trust for Mrs. Haynsworth.— That Eliza was at the plantation, some 20 miles off, and had three children, named Philip, Little Harriot and Manza; that the testatrix not knowing or recollecting the names of the two latter, called in a woman servant, to give their names to the counsel.— The counsel understood her to give their names as Little Harry and Alonzo, and so drew the will, which was subsequently read and duly executed.

It also appeared that the testatrix had no negroes *by*the names of Little Harry and Alonzo.

The bill was to obtain such a construction or correction of the will, as would pass Little Harriet and Manza under the seventh clause.

The case was heard at Darlington, the 10th of February, 1851, and the foregoing evidence was received subject to objection.

It further appeared at the hearing, that the testatrix had, at the date of her will, sixty-four negroes. The negroes named in the different clauses of the will are sixty-two in number. Two, by the names of Lydia and Tom, whose names were omitted, were subsequently specifically bequeathed, by a codicil executed the 18th of November, 1846.

JonN£TON, Ch. When I heard this cause, I intended to take notice in my decree of the numerous authorities referred to by the counsel in their argument. But the already overwhelming, and continually increasing, business of this Court, has left me neither time nor strength to undergo that labor — nor is it, in my opinion, necessary.

The cases are very numerous, and, it must be confessed, con*449flicting; so much so, that it is impossible to reconcile them. Under such circumstances, it is safer to depend on principles than precedent.

There are certain leading principles, well sustained by authority, and recommended by reason and sound policy, from which Courts should never depart, let the circumstances of hardship or injustice in the particular case before them plead as strongly as they may for the deviation.

No degree of moral rectitude in the administrators of law can compensate for that uncertainty, which they must ever introduce, when they abandon, or lose sight of, .those sound principles which alone can secure justice generally, and, without their guidance, vainly attempt to attain the justice of each particular case.

One great object for which Courts are instituted, is that their decisions may form rules of action and rules of property to which men may conform without the necessity of litigation. This would be entirely frustrated, by the mode of procedure indicated, even with the greatest rectitude, and the strongest judgment,-' on the part of the judges. Rut what must be the result, when bad men, untrammeled by rules, or principles, occupy the forum. -Caprice and affection must dictate the law; and intolerable oppression and tyranny must usurp the place of justice.

There are well ascertained principles applicable to 'this cáse, and from these there should' be no departure, .notwithstanding the anomalous cases to be found here and there in the books.,

One of these principles is,, that where the law requires the intention of a party to be expressed -in writing, you cannot dispense with the writing, and gather the intention from parol.. Another is, that where a party, though not compelled by law to do it, does employ writing as the vehicle of his intention, you cannot resort to parol as a better vehicle.

The statute of 1824 imperatively requires wills of personalty to be executed, in all respects, as wills relating to realty were previously required to be made. Suppose I was to receive the evidence of mistake in the 7th clause of Mrs. Saunders’s w-ill, that would be very *450good to prove tbat, tbat is not in the clause, which she intended to put in it. But how can I put into that clause any words, names, or provisions, which she did not insert ? If I were to amend her will, in any part or in any way, I must do it upon a principle that would justify and require me to amend it in every part and in every way that parol evidence might point out. And after I had so altered the will, could I hold it up and point to her signature as proof that she had executed it, with the alterations, as required by the statute ?

The evidence offered might be good to prove that no such names as Little Harry and Alonzo should be in the 7th clause of the will, being inserted by mistake. That evidence would be very good by way of avoiding the will; and, if this were the forum for that purpose, it would be worthy of consideration. But suppose I were to strike out the names now in the clause, that would not be sufficient, unless I inserted others in their place; and the question is, can I upon parol take the names of other negroes, forming -at the time I interfere with them, part of the residuum, and covered by the residuary clause of the will, and insert them in the '7th clause ? Can I upon parol, transfer property from the residuary clause to any prior or specific clause ? Can I upon evidence thus change the operation of the different parts of the will ?

If I can, the statute of 1824 is a nullity. If I can do what is proposed, no one need hereafter trouble himself with arguments to shew the construction of a testamentary paper. All he has to do is to prove that the instrument was differently intended from what appears on its face, and then it may be altered to conform to the evidence.

Chancellor HaepBR, in one of our cases, discussed the same principles in relation to reforming a deed, and all his objections, in that case, arising out of the statute of frauds, are just as strong in relation to wills under the statute of 1824.

This view of the case is sufficient to dispose of it. But if we omit the statute altogether, still in my apprehension, the result must be the same.

*451It is a familiar observation that you may and should learn the exact posture of a testator’s affairs at the date of his will; and that this knowledge may be obtained by parol. Certainly, the posture of a testator’s property can hardly be learned otherwise than by parol. Parol is competent, therefore, to prove it. But for what purpose is this information desirable ? • Is it not simply to enable the Courts to apply the will to the property ?

You see in the will property described so and so, and disposed of thus and thus. You learn by parol that there is property answering to the description. The will is then applied to it in the way directed. This is *construction.*

If there be two or more subjects to which a given provision may be applied, that one is supposed to be intended which answers most completely to the description given. But no provision can, upon any safe or sound principle, be applied to a subject which does not, in some sense, answer to the description given.

If the testator gives stock, for example, you apply his will to bank,' or government stock, stock in trade, or in a joint stock company, or co-partnership, or to live stock, according as he may own one or the other. If he owns all these kinds of stocks, you look to the usages of language or to the context of the will to ascertain his intention.

If the description given in the primary, or more linlited, or stricter meaning of the words, finds no counterpart in the testator’s property, but subjects are found to which the words in some other sense will apply, you apply them to these subjects. But it should be steadily observed, *that it is the will of the testator, and nothing but the will,*that is to be so applied. *It is his words, found in his will,*that are to be applied ; not the words of a witness testifying what he meant or what he did not mean.

The words are to be applied by construction, and not by proof of the intention with which they were employed. If, in themselves they are capable of no construction applicable to the subject proposed, you are not to learn from any foreign source, from any witness, or from any documents not referred to in the will, *452that the words were intended to have any operation different from what they purport.

And here I would observe, in order to show the utter incompetency of parol explanation, or parol evidence, to show what Mrs. Saunders’s real dispositions were, that though if the testatrix had referred by her will to any document extrinsic to it, that would have been part of her will — a full testamentary paper in writing, in the sense of the statute; yet if her will had, in so many words, declared that her dispositions had been confided to one of her friends, who was instructed to declare and explain them by parol, this would have been no will. If such parol declaration could have no efficacy as a testament, how can parol be allowed to operate when offered by way of a testamentary explanation ? A written will is the only means of displacing the law of intestacy. It is the only authority which Courts can have to treat the property of a deceased person as testate property; and must therefore be the measure of their interference noth the property. The clue to the property must be found in the will itself.

The witness in this case says, the testatrix intended to give Eliza’s children along with Eliza herself. If she had said so in her will, I would have given effect to it. That would have been a good bequest of the children, notwithstanding the subsequent misnaming of them. But there is nothing of that kind in the will.

Nor does it .appear in the instrument that Harry and Alonzo were given as children of Eliza; or that any relation between Eliza and the negroes so named was in the mind of the testatrix. The negroes are given separately and distinctively. Suppose between the execution of the will and the death of her mistress, Eliza had borne two children, called Harry and Alonzo ; or that any other wench on the plantation had borne two such children, or that Mrs. Saunders had bought or inherited two negroes bearing these names — in either of these cases, would Harriet and Manza still pass under the 7th clause ? Again, as the will is .silent as to any connection between the two misnamed negroes *453and Eliza, why are we to select Harriet and Manza particularly *to*supply ibeir place ? Why *not take*Lydia and Tom, whose names are omitted in the will, as well as these two ? The truth is, there is no guide but parol, and that is incompetent.

I conclude by observing, that this is not a case, as was argued, where parol is admissible to explain an ambiguity.

Where an ambiguity exists in the terms of a will, themselves, that cannot be explained by matter dehors the will. This is, however, not á case of that sort.

Where a will, in itself plain, is rendered ambiguous by parol evidence, then its intended operation may be stated by parol.

This is supposed to be a case of the latter sort. But it is not.

Where a subject has been found among a testator’s property answering in some sort, a description given by him, in one of his legacies, parol may be received to show the existence of another subject or article of property, better answering the description, and then the will is applied to that. But this is not evidence to explain the meaning or intention of the will.

A case of ambiguity, where it is lawful to explain the intention, is where the will is plain in its terms, but there are shown to exist two or more subjects equally coming within the terms. If the words of the will are not equally applicable to both, the will is applied by construction, and not by explanation, to that one most fitting to the words, and no parol evidence of intention can be received. It is only when the words are as applicable to the one as the other that ambiguity exists, (and this is the very meaning of the word.) Then parol is receivable to show which was intended ; as in the familiar case, where a legacy is given to testator’s son John, and he has two sons of that name ; or where he gives his black horse, having two or more of that color.

This is evidently not a case fully within the principle stated. On the whole, I cannot sustain the bill: and it is ordered that it *be*dismissed.

The complainant appealed, on the following grounds:

First. Because the testimony of the witness who drew the *454will, and of the witness who was present at the time of instructions given, was competent and should have been received.

Second. Because, by the case made on the pleadings, the complainants were entitled to a decree for the negroes claimed by the bill, as the legacy of Mrs. Haynsworth.

The case was ordered by the Equity Court of Appeals to this Court, where it was now-heard.

Moses, for appellant,

cited, on the first ground, 3 Swinb. 896, pt. 7, § 5; *Stockdale*vs. *Bushby,*19 Ves. *381; Beaumont*vs. *Fell,*2 P. Wins. 140; Prec. in Ch. *229; Pendleton*vs. *Grant,*2 Vern. 517; 2 Ves. 276; *Selwood*vs. *Mildmay,*3 Ves. 306 ; *Boor*vs. *Geary,*1 Ves. 255; *Hodgson*vs. *Hodgson,*2 Vern. 593; *Outhbert*vs. *Peacock,*2 Vern. 594; *Walpole*vs. *Oholmondeley,*7 T. R. 138; *Boe de LeGhevalier*vs. *Huthwaite,*5 Eng. C. L. R. 407 ; *Masters*vs. *Masters,*1 P. Wins. 145 ; *Qheney’s*case, 5 Colee, 68 ; *Gorvey*vs. *Hibbert,*19 Ves. 125; *Harrison*vs. *Harrison,*5 Cond. Eng. Ch. R. 390; *Garth*vs. *Meyrielc, 1*Bro. C. C. 30; *Smith*vs. *Ooney,*6 Ves. 43; *Qolpoys*vs. *Oolpoys,*Jac. 451: Green. Ev. § 287, note; *River’s*case, 1 Atk. 410 ; Roper on Leg. 494, note 9 ; *Whitbread*vs. *May,*2 B. & P. 593 ; *Stephenson*vs. *Heathcock, 1*Eden, 38; *Baugh*vs. *Read,*1 Ves. jun. 259; *Boe*vs. *Brown,*4 East, 441; *Boe*vs. *Oxenden, S*Taunt.' 147; *Goodtitle*vs. *Southern,*3 M..-& S. 171; *Sandford*vs. *Ohichester,*1 Mer. 653 ; *Bradwin*vs. *Harper,*Amb. 374; *Thomas*vs. *Thomas,*6 T. R. 671; 1 Story. Eq. §180; 2 Dana, 47; *Greer*vs. *Winds,*4 Des. 85 ; *Hatch*vs. *Hatch,*2 ITayw. 32; *Thomas*vs. *Stephens,*4 Johns. Ch. 607; *Miner*vs. *Boneham,*15 Johns. R. 226; *Powell*vs. *Bibble,*2 Dali. 71; *Boe*vs. Roe, 1 Wend. 541; *Ryers*vs. *Wheeler,*22 Wend. 148; *Webley*vs. *Bandstaff,*3 Des. 504; *Wilson*ads. *Robertson,*Harp. Eq. 56 ; *Bonald*vs. *Bendy,*2 McM. 130. On the second ground he ci■ted *Stale*vs. *Scurry,*3 Rich. 69.

*Harllee,*contra,

cited *Rothmaler*vs. *Myers,*4 Des. 215 ; *Bu-pree*vs. *McBonald,*Id. 209; *Jackson*vs. *Sill,*11 Johns. R. .202; *Maim*vs. *Mann,*1 Johns. Ch. 231; 3 P. Wms. 345.

*455The opinion of the Court was delivered by

Wardlaw, Ch.

In ascertaining the subject of a testator’s disposition, the Court may inquire into the situation of his estate, and into every material fact which is auxiliary to the just interpretation of his words, for the purpose of identifying the thing intended by the words employed.

In the present case, if the codicil had never been executed, it would appear from the will and competent evidence, that the testatrix owned sixty-four slaves, of .which,' excluding the two improperly named, sixty are bequeathed. If the construction of the legacy to the plaintiff were to be made in this posture of affairs, it might be doubted whether the legacy of the two negroes in question would not be made up by applying it to Tom and Lydia, as well as by applying it to Harriet and Manza; and it might be dangerous to apply it to either by parol proof.

But if the codicil afterwards made, specifically disposing of Tom and Lydia, had been introduced originally as a clause of the will, the case would then be, that a testatrix, having sixty-four slaves, bequeaths sixty-two of them specifically and without ambiguity, and bequeaths two other slaves, but applies wrong names to them. In that condition of things, we should ascertain from the will and the evidence, that nothing was left upon which the legacy to the plaintiff in trust for Mrs. Haynsworth could operate, so as to give her the number of negroes expressly intended for her, unless we resorted to Harriet and Manza.

The bequest being of negroes, there is enough of certainty in that description to sustain the gift, notwithstanding the partial mis-description arising. from the misnomer. The legacy cannot be applied to horses or to any other thing than negroes; and it should be applied to negroes, if these be found.

A description false in part may be made sufficiently certain, by reference to extrinsic circumstances, to identify the subject intended ;.'as where a false description is superadded to one which by itself is correct and adequate. Thus, if a testator bequeath his black horse, having but one horse which was white; or devise his *456freehold houses, having only leasehold houses; the white horse, in the one case, and the leasehold houses, in the other, clearly pass. The substance of the subject intended is certain, and if there be but one such substance, the superadded mis-description inapplicable to any subject, introduces no ambiguity. Any evidence is admissible which merely tends to explain and apply what the testator has written; and no evidence can be admitted which merely shows what he intended to write. The most accurate description of the subject of a gift in a written instrument requires identification by proof, of extrinsic circumstances ; and the least accurate description which satisfies the mind of the Court of the donor’s meaning, is within the same principle. If the judgment of the Court be founded upon a comparison of the terms of description employed in the written instrument with the extrinsic evidence of the identity of the subject, no attempt is made to vary a written instrument by parol evidence, nor to ascertain the intention of the donor independently of his written words. The Court does no more than to ascertain the application of the descriptive words in the instrument of gift. Wigram on Wills, pi. 9, 67, 70.

The sound doctrine on this subject is well stated in Swinburne on®Wills, 895, (part 7, § 5,) — “ The error of the testator in the *•proper name of*the thing bequeathed, doth not hurt the validity of the legacy, so that the body or substance of the thing bequeathed be certain: for example, the testator doth bequeath his horse Bucephalus, whereas the name of his horse” (testator having, as I understand, the example, but one horse,) “is Arundel; this error is not hurtful, but that the legatary may obtain the horse Arundel, if the testator’s meaning be certain : for names were devised to discern things : if therefore we have the thing it slrilleth not for the name. The error in the *name appellative*of the thing bequeathed doth destroy the legacy : for example, the testator intending to bequeath a horse doth bequeath an ox, or meaning to bequeath gold, doth bequeath apparel; in both these cases the legacy is void. The reason of this difference is because *457a proper name is an accident attributed to some singular or individual thing, to distinguish the same from other singular things of the same kind whereas names appellative do respect the substance of things, and being common to every singular of the same kind make them to differ from things of other kind or substance.”

It is justly remarked by Judge RichARDSON, in *the State*vs. Scurry, 3 Rich. 68, that “the names of slaves are vague and vary like the names often applied to other chattels.”

The testatrix, in the case before us, had the right to change the names of her negroes at her will. That she exercised this right in relation to Harriet and Manza is plausibly argued from the fact that in the codicil, she bequeaths Tom and Lydia as £ two negroeá not named in her said will,’ and leaves the other negroes to pass by the names mentioned in the will. That she could not have intended such valuable property as slaves to pass under the residuary clause, may be inferred from the doubting manner in which she mentions the existence of any residue. She gives “the rest and residue of her estate, if there be any.”

If the testatrix had owned the two slaves Harriet and Manza and no more, and had bequeathed two slaves, mis-naming them, it could hardly be doubted that the legatee would take Harriet and Manza. Yet that would not differ from the present case in principle ; and should not differ in result.

Thus the construction would stand, if the codicil had formed a clause in the will originally.

But the execution of a codicil is a republication of a will; and both papers must generally be construed *in pari*materia, as if they formed but one instrument, uttered *uno flater. A.*testament, with all its codicils, represents the wishes of the testator concerning the disposition of his property after his death, and however numerous may be its parts, it is to be construed as one declaration of intention, uttered at the death of testator;

It is at this point, we dissent from the circuit decree. We do not assail the general doctrines of the decree concerning the admissibility of parol evidence to vary a written *instrument;*but we *458suppose the Chancellor has overlooked the proposition that the will and codicil are to be construed as one, entire instrument.— His attention seems not to have been directed to this point on the circuit; even in the learned argument here, the point was barely suggested.

It may be objected that the will as it really stood originally, independent of the codicil, must, upon just reasoning,, mean the same thing after the codicil as it meant before: and if it could not have been construed to refer to Harriet and Manza at the date of its execution, its meaning could not be changed by matter subsequently arising. The objection is more specious than solid. It is competent for a testator, by subsequent testamentary disposition, to declare his intention in matters previously dubious; or to interpret a prior disposition where it is not dubious: or even to declare his meaning in opposition to the plain import of the terms previously employed. All his testamentary dispositions make one testament.

It is ordered and decreed that the circuit decree be reversed in the particular above mentioned; and it is declared and adjudged that the plaintiff is entitled to the slaves Harriet and Manza.— Defendant must account for the hire of these slaves, if any accrued. Costs to be paid from the estate of testatrix.

O’Neall, EvaNS, Wardlaw, Frost, Withers and WhitNer, JJ., and JohnstoN, ÜUNKIN and DarsaN, CC., concurred.

*Decree reversed.*