Roman Catholic Orphan Asylum v. Emmons

income of all my shares of the capital stock of the Mechanics’ Bank, so usually called, in tlie city of New York. I am advised that this operates as a gift of the shares themselves to . said Asylum, and such in effect is my intention; but I would hope that from the form of the gift, the legatees would continue the fund invested either where it now is or elsewhere, as part of their productive estate, and endeavor to get along with the disbursement of the income only:—and I would further also hope, that they would employ the Ladies’ Association, auxiliary to them, whose treasurer I have been, and am now, to disburse said income for said legatees in the charitable purposes of their incorporation, in the manner the Ladies’ Association have heretofore disbursed for the same charitable purposes the moneys the Ladies’ Association have themselves raised. But the expression of these hopes are not to form part of the gift, and they are not to be obligatory on the legatees.”

At the time of the making of the will, and at her decease, the testatrix had one thousand dollars in the stock of the City Bank, but none in the Mechanics’ Bank, nor had she ever owned any interest in the last-named corporation.

, Evidence of material facts is in all cases admissible in aid of the exposition of a will; to determine whether the words with reference to the facts, admit of a plain application, and if not, then to determine whether the words can be applied in any other sense of which they are capable, so as to satisfy the- intention. In other words, a court of construction may, by means of extrinsic evidence, place itself in the situation of the testator, in view of all the facts existing at the time of making the will, so as to judge of his intention as expressed on the face of the instrument. The necessity for construction in the present case arises out of the fact, that the testatrix had no bank stock answering the description, nor any other stock than the shares in the City Bank. I do not deem it necessary to inquire whether the difficulty is one of that class which permits parol proof of the declaration of the testator’s intention outside of the will—the evidence which has been

taken not throwing any light on that point. The testatrix stated to her counsel when he drew the will, just as precisely as the will states, that the subject matter of the gift was Mechanics’ Bank stock. Evidence to prove intention by parol declaration, is entirely different from evidence to explain the application of the will. The latter kind is always admissible, the executor seeks it when discharging the bequests of the will, and the courts demánd it when the description of the subject or of the donee is to be applied. There is no ambiguity on the face of this will, nor does any appear when the facts are explained. It is not a case of ambiguity at all, but one of misdescription. It is apparent the testatrix designed to give all her shares in some bank or other. The clause containing the gift is precise and particular, the detail showing thought and deliberation. If she had possessed shares in several banks, there would have been difficulty in the application, which possibly might not have admitted of express parol proof of intention. But having shares in only one bank, the rejection of part of the description makes the bequest applicable only to those shares. As the will stands, the language is not sensible with reference to extrinsic circumstances—nothing will pass by it; it can have no operation. Shall the intention of the testatrix fail ? It was the rule of the civil law, that a legacy should not perish by reason of a false description—-falsa demonstrations legatum non perimi. The statute of wills prevents the entire adoption of this maxim, when it is necessary to insert something in the will in order to save the bequest; (but still, if there are words in the will to enable the court to give effect to what must be supposed to be the testator’s intention, then the maxim falsa demon stratio non noeet, applies, enough appearing upon the will to sustain the bequest after the false description is rejected. Misdescription is fatal when it is total, hut if only partial, the inaccurate portion may be disregarded. | The principle is thus stated: “ an averment to take away any surplusage is good, but not to increase that which is defective.” In Day v. Trig, 1 P. Wms, 286, there was a devise of “ all the testator’s

freehold houses in Aldersgate-street,” and he had only leasehold houses there. The devise was held to pass the houses, the word “freehold ” being rejected. In Selwood v. Mildmay, 3 Vesey, 306, the testator bequeathed to his wife part of his stock in the 4 per cent, annuities of the Bank of England. When the will was made, he had sold out these annuities and invested the proceeds in long annuities; and it was held that the legacy was in substance one of stock, and as none could be found except the long annuities, they should pass. The error of the testator, says Swinburne, in the proper name of the thing bequeathed, doth not hurt the solidity of the legacy, so that the body or substance of the thing bequeathed is certain. (P t. 7, § 5, fol. 7). In Door v. Geary, 1 Ves. Sen. 255, the deceased left his wife £700, East India Stock having none, but he owned £700 Bank Stock. Lord Hardwicke decided that the latter should go to the widow, rejecting the words “ East Indiasaying, “ it was no greater mistake than the devise of a black horse, the testator having only a white tine—where the word “ black” shall be “ rejected.” It would be easy to multiply authorities sustaining this point; (See cases cited in 1 Jarman, 364 ; Wms. on Exect'rs, p. 1033 ; Roper on Legacies, p. 297); but it seems unnecessary, beyond the testimony of a writer who has treated this subject with wonderful precision. Sir James Wigram lays down the rule thus: “ So a description though false in part, may with reference to extrinsic circumstances be absolutely certain, or at least sufficiently so to enable a court to identify the subject intended; as where a false description is superadded to one which by itself would have been correct. Thus, if a testator devise his black horse, having only a white one; or devise his freehold houses, having only leasehold houses, the white horse in the one case, and the leasehold houses in the other, would clearly pass. In these cases the substance of the subject intended is certain, and if there be but one such substance, the superadded description, though false, introduces no ambiguity; and as by the supposition, the rejected words a/re inapplicable to any subject, the court

does not alter, vary, or add to the effect of the will by rejecting them.” (Wigram on Extrinsic Ev. p. 53.) In the present case, the word “ Mechanics’ ” must he rejected, as inapplicable to any property ever owned by the testatrix; and that leaves the bequest to operate upon any bank stock possessed by her, and so it will pass the shares in the City Bank. There must, be a decree accordingly.