NOVEME. 1810.

case xxx.

#### M. E. Holmes *vs.*Mary Simons, Guardian of the children of Robert Simons, deceased.

[Tried before Chancellor Desaussure, Charleston,

November, 1810.]

refus«iC°Uto prove that the fended' pade llTTlltfl.tlCllS differentfrom deed,

THE bill in this case is filed to have an account of certain estates, real and personal, and the delivery thereof, to the complainant, on the ground that the deed under which the defendant holds was erroneously drawn, and ought, according to the intentions of the donor, to have contained a clause which would (upon certain events that have occurred) have carried the estates in question to the complainant. The deed spoken of was a deed of gift, very inartificially drawn, but very clear, by which Mr. Benjamin Simons, now deceased, gave *10001.*sterling to trustees, to be invested in property, for the use and benefit of his brother “ Robert Simons’s lawfully begotten children.” The annual interest, or income, to be applied to the use and benefit of the said children until the son or sons arrive at the age or ages of 21 years, and the daughter or daughters arrive at the ago of 18 years *;*then to be equally divided between them, share and share alike. And in case the said Robert Simons should have no children arrive to the above years, he to have the annual interest, or income, during his natural life 5 and after his death to go to his sister, Mary E. Simons, (the present complainant) and her heirs.

The trustees invested the 10001. in property, partly real and partly personal, which is the object of the present suit.

At the time this deed was executed, (to wit, on the 18th November, 1789,) Robert Simons was married, and had several children. Upon the death of his wife he intermarried with Mary, the defendant, by whom ho had several children who are living. All the children, by the first BMjEi’iage, are dead, without having attained the agé of 18 years, and Robert Simons himself is dead.

*150On the part of the complainant it was insisted that there was a mistake made in drawing the deed of gift; that her brother Benjamin intended to have restricted his bounty to the children of his brother Itobert Simons * by his first wife, (then living;) and that upon failure of ^ose children, and the death of Robert, he intended the property should go immediately to his sister, the complainant, without any regard to the children whom he left by his second marriage : and the complainant offered to go into parol proof that such were the intentions of her brother, and'that he had given instructions to Mr. John Bryan to draw the deed accordingly *$*and other testimony corroborating the above.

The production of such testimony was objected to, by the defendant’s counsel, on the ground that it would be in the highest degree dangerous to permit such parol testimony to be given, which would totally defeat the effect of a deed which, though not technically drawn, was very clear and precise in its provisions.

Mr. GtRimke, for complainant.

The first question for consideration is, Can parol evidence be admitted to prove that an omission took place in the wording of the deed in question ? [Reads the deed of gift.] The rules of evidence as to deeds at common law for val. cons, are not applicable to vol. deeds. Neither of these parties claim as purchasers; both are volunteers, under the bounty of the donor. The wording of the deed shews it to be drawn by some person unskilled in the law.

What may begin by parol may be continued by parol Peake. This deed, not relating to lands,-but to money, may originate by parol.

Ambiguitas latens (as this is) may be explained by parol evidence: Peake. As to latent or patent ambiguity : latent, is where the omission does not appear on the face of the instrument.

The Court of Equity is to correct errors or frauds. A mistake has been made: parol evidence may shew *151this error, to do justice, by giving effect to the intent of the testator. 1 Fonbl. 122, note. Parol evidence may be admitted to shew the deed differed from the real intent of the parties. Ib. 200. 1 vol. of Day’s rep. in Connec-1 *,*ticut. Parol evidence admissible to shew that a deed which was absolute was intended to be a mortgage. 2 Fonbl. 262. See Roberts on frauds, p. 30 j 2 Dallas, 171. Parol evidence admitted to explain a deed from which a clause is omitted. 2 Dallas, 70. Parol evidence admitted to shew error, in the name of a devisee.

From the circumstances of the case the presumption is, that the donor had an eye to the children of Mr. Si-mons then in existence, and no other : like the cases of legacies to A. and his children *;*in some of which the children, in existence at the time, are alone considered to be entitled. See the deed itself. The limitation to particular ages shews that the donor did not mean to comprehend all the children, but either all who were in existence at the time of the deed, and no others, or those in existence when the eldest should attain 21 years.

Mr. Markiey, for defendant,

insisted on the danger of parol testimony, which might defeat the real intention of the testator. Look at the situation of the parties: B. Simons was desirous to provide for his brother Robert’s family. Why confine it to those in being ? Why distinguish one set of his brother’s children from another ? It was not the brother of the first wife providing for her children : it was one brother providing for another brother’s children j and it was immaterial to him by what wife he should have them.

As to the argument, that the deed, being voluntary, might be by parol, it is not so. It must have been done by deed. Since the statute of frauds it could not be by parol.

As to the latent and patent ambiguity. Latent is exterior j patent, is what appears on the face of the deed. There are no ambiguities on the face of the deed j it is *152plain and clear. 2 Vesey, 216, Hampshire vs. Pierce see this case.

becme.

This is a very different case from those in which the Court has let in parol proof. All of them are cases of TM É real ambiguity. The general principle against parol evj(ience was iono- adhered to. At length exceptions were made either to explain or confirm, but not to destroy what appears on the face of the deed. 1 Harr, chanc. 373, 518 ; 2 Vesey, 655, Harris vs. Bishop of Lincoln. Cases of explanation, as to who was meant, in the devise. 1 Harr. 376, 379. Where the extent of the meaning* is doubtful, parol evidence is received ,* but there is no doubt here. 1 Brown ch. rep. 341, countess of Shelburne vs. earl of Xnchiquin ; 2 Atk. 240, Baillis and Church vs. attorney *general;*1 Harr. 380; 1 Brown 92, Earlenvs. *Child;*2 Brown, 219, lord Portmore vs. Nori’is *;*Eq. Cas. abr. 416 ; Peake’s Evid. 115. No paral evidence to enlarge or limit a deed.

The date is of no importance : tire delivery is that time from which it is to take effect. Ambiguitas patens is that which appears from the face of the deed *;*1 atens, W'here it is extraneous. Parol evidence is admitted to explain the latter, not the former. Brown vs. Sehvin, case in equity in the time of Talbot, 241.

The Corner then delivered the following decree:

This is too plain a case to admit of any doubt. It w >uld, indeed, be highly mischievous, and tend to the endangering all property, however disposed of by deed or will, if such parol testimony should bp admitted. I will not lay any stress upon the length of time which has elapsed, and the death of all the original and principal actors in this business, before any attempt was made to shake this deed ; although I think those circumstances should have weight, even in a clN'K of stronger claim than the present for the admission of parol testimony. But I will take the question in its simplest form. Can parol evidence be admitted, to introduce a new clause or additional words into this deed, so as to vary it materi;*153ally, and carry the property to another person, different from those entitled to it as the deed now stands,

The general rule certainly is not' to let in parol evidence to explain either deeds or wills : and this rule is founded in great wisdom and caution. It would tend greatly to introduce perjuries, and to unsettle what men had deliberately settled in writing, relative to their estates, to. the great hazard of the titles of all property. Still the judges have been induced to admit parol evidence, in a few cases, and under very peculiar circumstances, to supply some manifest defect, or to explain What was extremely doubtful. This has been done more freely in the cases of wills than of deeds, because they are more frequently executed in haste and without counsel. In deeds, where men act more advisedly, there is more reluctance to admit parol evidence, and the examples of it are very rare, except to prevent a fraud. There has indeed been a good deal of diversity of opinion among successive judges, in what cases parol evidence is admissible. Their sound judgment has approved the rule $ but they have been tempted by particular circumstances, and by a strong desire to get at the whole truth, to make exceptions to the rule. The later cases, founded upon more experience, have gone to establish the rule more firmly, and to narrow the range of the exceptions. Lord Hardwicke, in the case of Ulrich and Litchfield, 2 Atk. 373, lays it down, that courts of law and equity admit parol evidence in two cases only.: first, to ascertain the person where there are two of the same name, or where there has been a mistake in a Christian or surname; secondly, in resulting trusts relating to personal estate. Other cases shew, that to avoid frauds parol evidence is admissible. None of the. cases, however, have ever gone to receive parol evidence, to add distil : ; and independent clauses or new' words to a will, or a deed, which would essentially alter the deed or will, and make a different disposition of the property from that apparent on its face, clearly and unambiguously expressedi It would be dangerous in the *154highest degree, and contrary not only to the statute of frauds, but to the common law before the statute, as relates to land, in the case under the consideration of the ^0iirc’ thcrois a clear, unambiguous provision, by which *WOOL*is to be invested by trustees for the use and 0f Robert Simons’s children j and if he should leave no children who should attain a certain age, the property is limited over to his sister Mrs. Holmes, the complainant. It is insisted that a mistake was made in drawing the deed, for, that it was the intention of the .donor to restrict the provision to the children of Mr. Robert Simons by his first marriage, and that parol evidence should bo admitted to prove declarations by the donor, and by a Mr. Bryan, who drew the deed, to that effect, they being both dead.

Iam decidedly of opinion, that such evidence is inad - missible ,* and it would be inadmissible if Mr. Bryan were living and ready to attest to this fact. It would .go. to add to and alter the deed, and give a different destination to the property, contrary to the clear and explicit provisions on its face. It was attempted, in Hampshire and Pierce, 2 Yesey, 216, to limit, by parol evidence, a legacy to the children of one wife, contrary to the words of the will, which spoke generally of the children of the party, without distinguishing the particular brood, by the two wives. But the Court refused to admit the parol evidence even in the case of a will.

, I will not travel over all the cases which establish the doctrine, but refer generally to the following cases : Brown and Selwin, Cases, time of Talbot, p. *240;*Whitton vs. Russel, 2 Atk. 448*;*Ulrich vs. Litchfield, 2 Atk. *373;*Parterich vs. Poulett, 2 Atk. *283;*Tyrrel vs. Hope, 2 Atk. *558;*Rych vs. Jackson, 4 Bro. c. c. 514*;*Pym vs. Blackburn, 3 Vesey, jr. 34*;*Conolly vs. Lord Howe, 5 Vesey, jr. 700*;*Shales vs. Barrington, 1 P. Wms. 481.*

The bill was dismissed.

*

 See also 1 Bro. c. c. 92. 3 do. 168. 4 do. 514, and 1 Bro. c. c. 338. *3*do. 326. 6 Vesey, 328.