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wjiole of the surroinidin;^ eireinn-tanee-. at the linie the
will wa~ madi-, which are le;^ii iniatelv to be bron;^hl in tor
the |iiirp<j-e of explaining hi- expre»ion>, lhoii;:h not for
tin- purpose of altering or .-nlding to iIk-mi, tlieri' is in thi'"

W. 1 1


Art. 2. f;i>(. so stron^i- :i ]>i-tili;il)ilit v ol' intention to inrlmlc, or not
l'iirir~('') ^'^ exclude the eliildren in (|Uestioii. :is tliiit a eontiary
intenrion c-aiuiot l)e sui)|)(i-e<l.""

Illwstra- In AV 11 V,-,. /'//•/// V. H7/.vrm (18<JG), 74 L. T. 1502, a

"necessary testator made tlie rulIo\vin<>- bequest: Subject to certain
implication. " char<ros and legacies, he left bis effects to trustees in trust
to ]tay and divide tliein " e(|ually aniono;st tbe cbildrcn of
my deeeasecl lather's lnothers and sisters, and I desire that
the I'hiM or children of any one of sucb brothers and sisters
as may be dead sball take bis, ber, or tbeir deceased
|)arent's share."' Tbe court beld tbat by clear im])lication
what the testator meant to say, was not " tbe cbild or
children of any one of such brothers and sisters as may be
dead," but "the child or children of any one child of such
brothers and sisters," etc., since inider tbe will the
brothers and sisters of the deceased father were to take
nothing, and their children everything, the "share'" that
was referred to must be the .share of a child of a brother
or sister.

In In re BassetVs Estate, Perkhis v. Fladgate (lS72j,
1-4 Eq. .'>4:, the testiitrix in " her last will and testament,"
after appointing an executor and giving various legacies,
proceeded as follows : " After these legacies and my
doctor's bills and funeral expenses are paid, I leave (sic)
to my sister M. P., without any power or control
ever of her husband" J. P.. in case of her death, equally
amon<: hei- children : — Held, a good gift of the residue of,
to M. V.

In In re DcujrelL JIastie v. Dayrell, [1904] 2 ('h. 4'Jt),
a testator devised his real estate in strict settlement and
then bequeathed certain heirlooms to trustees in trust to
permit the same to be enjoyed with the realty so far as the
rules of law and equity would permit, by the persons who
for tbe time being should be entitled to the possession of
the realty by virtue of the will, yet so that the heirlooms
should not vest absolutely in a son "or "any person thereby
made tenant for life of the realty unless such son " or "

Meaning Affected by General Intention. 35

other person attained the a<i"e of twenty-one years : — IleUi^ Art. 2,
that to carry out the obvious intention of the testator the Para (2)
word "■ or "' must be read " of."

In Mtllor V. Daintree (18t>G), 'SW Ch. D. 1J.I8, a testator
left his estate upon the following trusts : As to one moiety
of it for the accumulation of the income tmtil twenty-one
years after the testator's death or until B. should reach the
age of twenty-five or die, whichever event shoukl happen
first ; and if the twenty-one years expired l)efore B.
attained the age of twenty-five then, if B. were living, the
income was to be paid to B. till he attained the age of
twenty-five or died, and on attaining that age the moiety
was to go to him absolutely, and if he died before attaining
that age, leaving a son him surviving, it was to vest in the
son. As to the other moiety the income was to be accu-
mulated during twenty-one years after the testator's death,
or until D. should attain the age of twenty-five or die,
whichever event should first happen, and if the twenty-one
years expired before D. attained the age of twenty-five
then the income was to be paid to D. till he attained that
age, and if he died before that age, leaving a son, the
moiety was to vest in the son : — JlehU tliat the whole
.scheme and intention of the will showed that it was tiie
testator's intention to vest the second nioietv in D. al)so-
lutely on his attaining the age of twcnity-five and that such
a gift must l)e read into the will. And see In re Redfeni,
Red/era v. Bi'!i,un<i (1?<77), (J ( "h. D. J.''.:}.

A te.-tator devised an estate called Lea Know! in tini>l
for his daughter A. and her children on certain limitations,
and gave the trustees power to sell and hold the pnteeeds
on tlie same trust.s as thereinbefore declared "concerning
the said Lea Know] estate." lb- devised an est4it(^ trailed
( 'roxton to his daughter I', anil lier children on ciit;iin
limitations, and gave the lrii>tee> power td -ell and hold
the |»roeeed«< on the -iame trusts as therein I let'c ire declared
*' concern in;.' the -;ii 1 Le;i Knnwl i-slale ' : II, Id. thai (»ii

36 Paijt I. — (Jkni'.kal Pkintiples.

Art. 2. the ()li\i(nis fousti-nctioii ol' the d I the testator iiitciidcd

p -.,) that tlif |ir(»i'C('ils of the sale ot" the ( 'roxton estate should
l»e hehl on I lie same trusts as were declared of that estate
and not the Lea Kiiowl estate, and that the woi'ils Ijea
Kiiowl in the -eeoiid devise were inserteij liv mistake and
should lie delete(l ( In ri' NortJtens Ksfule, >Still v. /'/////
( l^.S 1 ), 2S < h. 1 ). 1 '>:) ). ( '/■ In ve Birks, Kenyan v. Jilrhs,
[llKIO] 1 ( 'h. 417; see supra; and Cotcen v. I'mi'/llf^
Limitnl, [1811^1] 2 Ch. :'.()!». iufr,i. y. 'u .

It is to he rememhered that amhi^iious words of ;^it't in
11 deed {In re MirhelVs Trusts (1878), 1> Ch. D. '>) or will
may always be explained and interpreted by a clear recital.
And in the case of a will a recital in a codicil may equally
be referred to to ex|)lain amhiouous words of eift in the
body of the will. Thu - in /// /v- Wnn. L'mdon v. Imiram^
[lll()4] 2 Ch. r)2, the (juestion was in what shares a testatrix
intended her estate to l)e eiv(>n. JoYCi-], J., in delivering!;
jud<i;ment. said (p. ")';) : " I admit that in the will alone
there is an ambiguity as to this, and that it is arguable
that the testatrix intended the division to be in moieties.
If, however, I may refer to the first codicil to clear up the
ambiguity, there is no doubt but that the estate is to be
divided equally among all the beneficiaries. If there were
an obviously erroneous recital ot" the will in the eodieil.
that would not alter the construction of the will (see
Skerratt v. Oakleij (1798), 7 T. li. 492) ; but if the recital
of the will in the codicil be not obviously erroneous, 1 have
no doubt but I may refer to the codicil to clear ii]i ati
ambiguity in the will. The ])rincipal authority for this is
harleu \. Martin (1853), 13 ('. B. G83," In that case
Jervis, C.J., pointed out that a will and codicil constitute
toirether one instrument, and are to be read as one.


Intrinsicancl The evidence supjilied bv the will or deed as to the sense
extrinsic . , . , , .' . . ,,,...

evidence. ^" wind) words are used is sometimes called intrinsic

Intrinsic and Extrinsic Evidence of Meaning. 37

evidence of meaning : the evidence sujjidied l)y tacts out- Art. 2.
side the will or deed, extrinsic evidence of nieaninii;. As p^i-a. (3),
both these kinds of evidence, when admitted as to circum-
stances set out in Article 2. ai1^'ect tlie meauing of the
words used, they are })ro]ierly. and indeed necessarily,
regarded as ])rinci})les of construction, and therefore must
be considered here. But other extrinsic evidence is some-
times admissible which, since its object is not to assist to
interpret the words used in the instrument, but to add to
the instrument or vary it, has, strictly s| leaking, nothing
to do with the princijdes of construction : all it has to do
with is to ascertain facts with respeet to the instrument
which is to be construed ; l)ut as in many ways such
evidence is much akin to evidence admitted to explain the
meaning of words used, a short reference may be made to

it here.

Generally speaking, extrinsic evidence of the circum-
stances under which an instrument was executed is
aihni^-ible to prove some fact tliat will atfect its operation •

or that will raise a })resumption that it was niatle subject
t(j a special custom or particular understanding, or which
will rebut such a jiresumption oi" a proumpi i(jii raised bv
tlie law itself, or which will show that the instrument was
made under circumstances which rendered it void or

First, then. a< to evidence of facts that will ati'ect an Evidence of
instrument's op.-ration. surrounding

Tile fiate of execution, wiiere the instrument bears none, **'^'M"':''^
' ' atl(Hling

may Ijc proved ; and even where it does l)ear one, evidence opuration.
may be given to >how that it i> an ••noneoiis or impossible
one (frodddrd'.s < dsr ( 1 ;">^^;> ), 2 l(e|». I b). The ground of
this decision is, that the time whi-n the deed or will was

executed is \U) part of the d I or wilL Ibii if the date in

«piestion i- not the dale of execution. Iml the date of
operation, it cannot be |ir(»ve(L Thii-. in a ijeniise where
the 1 1 resent tense is u-ed, the emnl, in the absence ol' any


Art. 2. (late Irom which the Irasc is to (i|M'f;iti', in'i'suincs that.
p^ 7.,. it (i|ii'rat('s trom oxcciit ion, while, on the olhcc hamh an
a^irt'cniciit for a future tltMiiise, where no date is stated lor
the c'oniinenceinent of the intended lease, the agreenwiit is
bad for uncertainty {Marshall v. Berridf/e (1881), I i» Ch. 1 ).
'23[\). Attain, it may be shown whether any alterations
apitearin;; on tlie fa'-e of tlie instrument, or endorsements
on it, were made heioi-e or after execution {Thomson v.
Butcher (1112')). i') Buls. ;{00). In the same way, when
an instrument purports to incorporate other documents l)y
reference, tlw.' tact that these other documents were or were
not in existence when the instrument was executed and the
i(h'ntity of the documents with those incorporated may, and
(in tlie case of wills at any rate) must, ho proved {Sinnlc-
ton V. I'omlinstw (1878), 8 App. (Jas. 404). And it may
be proved that a deed contains only part of the agreement
or transaction and that another contemporaneous parol
contract exists referring to the same subject-matter
{Erskine v. Adeane (1873), 8 Ch. 756). In the latter
case, where the whole transaction is contained in two or
more written instruments, all these instruments are to be
construed together as one document (Sniifh v. ( 'JiadnvcL
(1882), 20 Ch. D. 62).

If no consideration is set out in the deed, it may be
shown that valuable consideration was actually given ;
and if a consideration is set out, it may be shown that
another consideration was given in addition to that set
out. provided this is not contrary to any statement in the
deed {Clifford v. Turrell (1841), 1 Y. i C. C. C. 138, at
p. 149). Thus, where no consideration w-as set out in a
settlement, evidence was admitted to prove that the settle-
ment was made in consideration of marriage (Ferrars v.
Cherr// (1700), 2 Vern. 383). And when the instrument
in question is a will, a consideration for making the will
can be proved, even if that is inconsistent with the will,
since the party giving the consideration for the testator's

Extrinsic Evidence of Meaning. 39

promise to make his will in a certain way is not a party to Art. 2.
the will, and, therefore, is not estopped by any recital p.^^,.^ ..^^
contained in it, as far as the bargain between him and the
testator is concerned. Proof of consideration, however,
both in the case of deeds and wills, arises more frequently
in connection with the validity than in connection with
the construction of the instrument.

In the second place, extrinsic evidence may be given to Kvidenci-
raise a presumption of fact that a deed was made subject cusUmV^
to a special custom. As we have already seen, special ;i(l"iissihle.
custom may attach a meaning to the words used in a deed
or will different from that which they ordinarily bear
{supra, p. W). In the same way, it may introduce
provisions into an instrument other than those expressed
in it. and extrinsic evidence may be given to show that the
instrument in question was made subject to a special
custom, and that by the special custom the provisions
in question were implied. Sometimes, however, special
customs are taken cognizance of by the cotu-t without
evidence to prove them. See .<?»/)?•«, p. 20.

In order that a custom should be recognised by the
court, it must be consistent with the express provisions of
the instrument, and must also be reasonable ( Wiijales-
u'ort/i V. nail/son (111'.)), 1 Doug. 201: 1 Sin. L. ('.

Special custom cannot import proxisions into a will,
since, Ity the Wills Act, all the jirovisions ol' thr will
must be in writing. It aff('ct> few dceils excej»t Icaso of
agricultural land (which an* usually made subject to local
custom.s) and commercial instruments (which are usually
made sul»j<*ct to the cnstoni< of the trade). See Xnrlh v.

Jiassett, riMt2] J (^. !',. ;;h:',.

A., a building ownt-r, a|i|M(iiitfi| |j. lo t;d\.r out the Illustnitions

.•x- i i • II I / 1 ■• of CVidl'MCf

quantitH's as to certain <-oMti iii|il:itc(l work-. ( . alter- „f „.„.,. i,i|
ward- t<'iid<'re<i for tli<- contract to bnil<l tin- work- Jn <UMt<»in.



Agru iillural

Art. 2. (jiH'-i ioii. and li;i-cil lii- ii'iulcr tui llic i|ii;iiit itio :is

„ ,.}. supiilicd liv I'). < '.'s tt'iiilcr was act'cptcd. Tlic hiiildiiiu'
1 lira. (•>). II. I ^

contract made no [irovision lor the jiaymcnt ot" I'.s cliarucs
for lakiiii: <'iii tlic t|naiit it ic<. 15. >u<'d ( '. loi- these
t'liar;^('s. and, at tlic trial, jirovcd that it was ihe custom ot*
tlie liuildin;^- ti-adc tliat it' a tendci" hascd on the (|iiantirios
was acc('iit('il. the ImiMcr whose tender was acc('])t('d was
lialih' lor the (Hiaiitity surveyor's charges: hut if no
tender wa- aceepteil tlu' huihlin;^" owner was liahle:- -
//<!</. that the custoiii jiroved was I'easona Me. and that ( '.
was liahh' for P>.'s cliarges (y,>r//> v. Hassctt, \_\>>^'d-2,']

1 (,). P.. ;'.;;;'.).

In a leas(> A. was tenant of a farm under a written
agreoineiit. in which there was a reser\atioii to tlie h'ssor
of "all mines and minerals, sand, (juarries of stone, brick,
(>arth and e;ra\(d ])its."" P)y a local custom, tenants of
ao-ricultnral land were entitled to take all flints turiK^l up
in the ordinary course of agriculture, and sell them for
their own henetit. and it was shown that the removal of
such flints was necessary for the })roi)er cultivation of the
soil : — llrld. that the custom was reasonable and valid,
and that it was not inconsistent with the reservations in
this aereement, and therefore was to })e read into the
agreement (Tucker v. Linger (1882), 21 ('h, D. 18 ;
(1883), 8 Apj). Cas. 508).

As to extrinsic evidence to raise the ])resumjition of
fact that the instrument was subject to a particular under-
standing, see Part III., Chap. I.

Once a presumption of fact is raised, whether by the

evidence to .idniission of extrinsic evidence or 1)V the law itself,
rehiit pre- " '

sumptions. extrinsic evidence is always admissible to reljut it (hi re

Bacon's Will, Camp v. Coe (188G), 31 Ch. D. 460).

Two kinds of Presumptions raised l)y law are of two kinds ; first, pre-

pnsiinip ion. ^^|,iiptions which — like those raised by extrinsic evidence —

add to or vary, but do not contradict the instrument ; and

secondly, presumptions which do contradict it by imputing


Extrinsic Evidence of Meaning. 41

to the parties to the instrument an intention different Art. 2.
from that whieh appears on the face of the deed. p,^j.jj /^x
Examples of the first kind occur in the case of grants
of hind ahuttinti" on a highway when there is a presump-
tion that half the soil of the highway passes under the
grant, though there is nothing as to that esjiressed in the

Presumptions of the second kind are more numerous. Legal
they arise most frequently in equity. Thus, where pur- iont3^J°"^
chases are made in the names of third persons, there is a words of
presumption in equity that the third person is not to be '"^ '"'"^"^'
benelited Init is to hold the laml in trust for the purchaser.
And wiiere a portion has been advanced to a child during
its parent's life, there is a presum{)tion that a portion given
by the parents will is not intended as a second or doul)le
jiortion. These presumptions, however, have nothing to
do with construction of deeds. They are not intended to
solve any dithculty arising as to the meaning of the words
used in it. But the presumption against double gifts is
really a presumption of construction which only dilfers
from a rule of construction in this, that direct evidence of
what was actually intended by the testator or parties may
!)<■ given to show that it is inapplieable.

The case of In n- Iiaii)n\< Will, ('(inijiw fo^ (188tJ), Kvidence
31 Ch. D. 4G0, is a peculiar example of admission <^>f ,,',*.e.sunipiion
extrinsic evidence to rebut a presumption arising on the »''»">«'" "■
construction of a will. TIk- testatrix lt\- her will, which
was made on a jtrinted form, after directing that all her
debts and testamentary expenses should l)e |»aid Itv In-r
executor, simplv appointed delendaiit executor wit hunt
filling uj» the blanks in lli<' f(jrm following the printed

words *' I give, d(!vi.>e .ind be(|ue;ifh all .*' The

testatrix left no next-of-kin. and iherelore, as again-l the
Crown, tlie executor wa> entitled to the residue tif the
asHets(l Will. 1, e. 40, apjil ving onlv as l)etweeii e\e( iit(ir>
and next-of-kin^ unless the ( 'rown coiiM .-how that the

42 l*AUT ]. -General Principles.

Art. 2. t('.-t:itri\ iiirciulril the executor >li()iil(l not take. It was
PariTTs). (-•oiiteiided I'or tile ( 'rown that the existence of the words
*• 1 i:i\<'- <'!<-•. . slioweil siK'h an intention, and a- such
intention a|)|ieare<l on the i'ace ot" tlie will, no extrinsic
evidence was athnissihle to reliut it, Tlie court lield that
under the peculiar circumstances these words only <j;ive to a |)i-esuni|)tion, and tliat sucli pre.suniittion niiu-ht
be rel)utted hv extrinsic e\ idence.

Extrinsic La-t I V. e\ idence ol" the circumstances undei- whi(di the

evidence to -^vill or deed was made is admissible to sbow tliat the in-
avitul instru-
ment, strnment is void or voidabb;. Thus, evidence that the

execution was induced by i'rauil or (hiress, or tbat the

consideration eiven was illeeul or luinsual, or tliat the

maker was under sucb disability as would in law prevent

bim vaHdly executini)' the instruments, or tbat a donee

liad aereed to bob! the <i,ift in trust for some person

or purpose, will, ot course, bo in all cases admitted. This

evidence has, it" ]»ossible, less to do with constrnction than

tbat adinitted under the preceding rules. Its real ])oint

is not to belp tbe court to construe the instrument, Ijut to

bel[) it to ascertain wbetber tbere is any legal instrument

to construe, or wbat, notwithstanding the instrument, was

tb(> true nature of tbe transaction.

Art. 3. — Direct extrinsic Evidence of Intention.

In construing a will or deed, the court will not
admit direct extrinsic evidence of the intention of
the testator or parties, for the purpose of assisting it
to ascertain the sense in which the words were used,
save when after construing the instrument in accord-
ance with the rules laid down in the preceding articles,
an equivocation has arisen. Such evidence will then
be admitted to resolve the equivocation.

Direct Extrinsic Evidence of Intention. 43

All equivocation arises where there are words in the Art. 3.
instrument which, though appHcable to one person or
thing only, may be appHed with complete accuracy, or,
subject to the same inaccuracy, to two or more persons
or things indifferently.

The evidence admissible under this article is called Direct

. 1 ,. . , . J T ,• •I'll' J.1 extrinsic

extrnisic evidence or intention, to di.stniguish it irom the evidence of

evidence ot" intention which may be gathered from the intention.

words of the instrument, and it is called direct extrinsic

evidence to distinguish it from the extrinsic evidence

admissil)le under Article 2, Nvhich is all of it indirect

evidence of intention, that is. evidence arising tVuni the

circumstances surroundino- the ti'an.saction which y:oes to

show what the intention was. Here, direct extrinsic

evidence of intention means evidence of what the testator

expressed to be his intention in some other way than hy

his will.

"There is hut o ne case in which it appears to us tliat Kcjuivocatiun.
this sort of evidence (i.e., evidence of the testator's actual '

intentions) can properly be admitted, and that is where the
meaning of the testator's words is neither ambiguous or
obscure, and where the devise is on the face of it perfect
and intelligible, hut, from some of the circumstances
admitted in jiroof, an amhiguity arises as to whicii of the
two or more things, or which ot" the two or more persons
(each answering the words in the will), the le-t:ii(ir
intended to express. Thus, if a testator (h'vise iiis manor
of iS. to A. B.. and has two manors of North S. .md
Soutlj S., it heing clear h<' me:ins to devise one nid\.
wherejis both urc equally denoted l)y the words he has used,
in that ca.-e there is what I^ord Ji.vcoN calls 'an ecpiiNoca-
tion.' /'.«'., the words apply e<jually to either manor, and
evidence <d" j»revious intention may lie recei\((| to xilve
whtit he m(;unt to do; and wln-n you kimu that, you
immediately perceiv(! that he has done ii \>\ the genend

14 I'aiit 1. — General Principles.

Art. 3. wortls he has used, wliicli. in the onliiuirv >('ns<', may
jiroiicrly Itrar that coiistructitiii. It ai)j)('ars to us tliat. in
all othrr cases, jiarol cvich'iK'c of what was tlio testator's
intention oii^^ht to Ije exelinU'd ujton this jilain ;j,ronn(l,
iliai hi- will ()u;;lit to be in writin^^- ; and it' his intention
i-annot he made to ai)})ear by the writine explained by
circumstances there is no will " { j>er Lord AuiNGEU, (AB. :
Doe d. Jlisrocks v. Jliscocks (l.Sol.1), 5 M. & W. ;U;3, at
p. ;*)(;.s : Tud. Lead. C'as. 48l» : and see also 7iV //w/ry,
Urilril V. Ildlejj, [1902] 2 Ch. 8t](;).

This doctrine was carried very I'ar in the case of
In re the Estate of J/uhburk, [1905] P. 129. There a
testatrix (l(>vised and be(jueathed all her property to " my
;irand-daughter ."" The testatrix had at the date of

her will three grand-dauuhtei-s. Direct extrinsic eyidence
was admitted to show which of the grand-daughters the
testatrix intended, and so till up the blank lel't in the
will. The reasons giyen for this decision were these :
The case was not like that of a total blank. Here there
was a description of the intended beneficiary — " my grand-
(hiughter." If there had been only one grand-daughter
this would have been an ample description. There being
three, there was a true equivocation, and direct evidence
of intention might be given to solve it. Sed qucere. It
would seem to be quite as"reasbnable to hold that the will
was incomplete, and filling up the blank by means of
extrinsic evidence was not interpreting the will at all, but
in etlect conqjleting the will for the testatrix. And
further, where there are a numljer of y-rand-dauy-liters, is
'* my grand-daughter " a specific description of anyone,
any more than, say, " my friend " is ?
Kxplaiiatioii It is to be noted that an equivocation arises only when
^s tu etjuivo- f li^ words apply accurately or subject to the same inaccuracy
■ ations ^q ^wo or more persons or things. Strictly speaking,

when they apply, subject to the same inaccuracy, the
equivocation does not arise until the court decides to reject
the inaccurate part as falsa demonstratio. Then, as the

Direct Extrinsic Evidence of Intention. 45

remaining part a|){>lios accuratel}' to the i)ersons or tilings Art. 3.
in question, there is a true equivocation. Thus, a legacy
is left to " Robert Careless, my nephew, son of Joseph
Careless. '■ The testator had no brother named Joseph, but
had two nephews called Robert Careless. The court
rejected the word Joseph. Both nephews were then
accurately described by what remained, " Robert Careless,
my nephew, son of Careless.'' Evidence of thf

testator's intention was then admitted to show wliicli of

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 9 of 42)