in the will. To expunge that thing and substitute something else was to make a new will. To expunge was to make a blank, in which case the devise would be void for uncertainty. See opinion in Miller v. Travers.

2. As to the second.

What the testator has written is plain and explicit. There is no shadow of doubt about the writing, the only legal exponent of intention. Indeed, the writing could not possibly be clearer.

The subject of the devise, as written, is an existing and known thing; but even if it was not, it is the only thing that he has legally manifested an intention to devise. It is proposed by parol evidence to show that when the testator, by writing (the only mode by which he could give expression to testamentary intention) said one thing, he meant another and a different thing; and this is proposed fifty years after the execution of the writing. Such evidence is inadmissible, for the reason that it proposes to contradict the will as made in writing and make a new will by parol. If the evidence were admitted, the will would still remain. The will would then say one thing and the parol evidence another thing. Which is to prevail? Are the words of the writing to be expunged and different words interpolated? If not, of what avail is the parol evidence?

Even assuming that such evidence would show intention, the question remains whether it could show intention manifested by writing, executed as required by law.

In no case, when the language of the will is clear, can parol evidence be admitted to contradict it; for in such case to admit the evidence would be to make a new will by parol. 1 Jarm. Wills, 5th Am. ed. 708, 713, and notes, 1, 2, where all the authorities are cited.

Wigram, Ext. Ev. Am. ed. 1872, p. 55. If the description be wholly inapplicable to the subject intended or said to be intended by it, evidence cannot be received to prove where or what the testator really intended to describe.

2 Taylor. Ev. § 1109; 1 Greenl. Ev. §§ 277, 287, 289, 290; Miller v. Travers, 8 Bing. 244; Doe v. Hiscocks, 5 M. & W. 363; Doe v. Hubbard, 15 Q. B. 227; Webber v. Stanley, 16 C. B. N. S. 698; Drake v. Drake, 8 H. L. Cas. 172; Charter v. Charter, 7 H. L. Cas. (Eng. & Ir. App). 364; Weatherhead v. Baskerville, 11 How. 829 (52 U. S. bk. 13, L. ed. 717); Allen's Exrs. v. Allen, 18 How. 385 (59 U. S. bk. 15, L. ed. 396); Mackie v. Story, 93 U. 8. 589 (Bk. 23, L. ed. 986).

It is not possible to distinguish between Milier v. Travers and the present case. In the former, as here, the testator gave, as alleged, what he did not own. The answer was, and is here, that the only thing given was the thing written

Wigram, § 9.

In every case of a controverted construction the sole question is non quod voluit sed quod dixit.

The office of the extrinsic evidence is to preserve, not to defeat, the written will. Its effect is not to contradict or vary the language used, but merely to show the sense in which the testator used it.

2 Tayl. Ev. § 1085; Shore v. Wilson, 9 Cl. & F. 355.

Evidence of actual intention, irrespective of the language of the will, is always inadmissible. 1 Jarm. 726, note 8 and cases cited; Allen v. Allen, and Mackie v. Story, supra.

Undoubtedly the court may, in the interpretation of a will, put itself in the place of a testator by looking at the state of his property and the circumstances by which he was surrounded when he made his will.

But this, again, is to aid and not to destroy the written will and make a parol will. Allen v. Allen and Weatherhead v. Baskerville, supra.

4. It is further urged by the other side that the introductory clause of the will shows an intention on the part of the testator to dispose of all his property.

The question is what he did. No principle is better settled than that such a clause has not the effect of disinheriting the heir, unless the intention is carried out by a devise which expressly or by necessary implication has that effect. In such case the rule quod coluit non dixit is held to apply.

An estate given cannot be enlarged by such a clause.

Beall v. Holmes, 6 Harr. & J. 206; Preston v. Ecans, 56 Md. 488; Hammond v. Hammond, 8 G. & J. 441; Dougherty v. Monett, 5 G. &. J. 462.

Mr. Justice Bradley delivered the opinion of the court:

Ejectment for two undivided thirds of a lot of land in Washington City, known on the plats and ground plan of the city as lot No. 3, square 406, fronting 50 feet on E street north: plea, not guilty. The plaintiff, John Patch, now plaintiff in error, claims the lot under Henry Walker, devisee of James Walker. The latter died seised of the lot in 1832, and by his last will, dated in September of that year, devised to Henry Walker as follows, to wit: “I bequeath and give to my dearly beloved brother, Henry Walker, forever, lot numbered 6, in square 403, together with the improvements thereon erected and appurtenances thereto be longing." The testator did not own lot num.

The testator, at the time of making his will and at his death, had living a wife, Ann Sophia, an infant son, James, a mother, Dorcas Walker, three brothers, John, Lewis and Henry (the latter being only eleven years old), and three sisters, Margaret Peck, Louisa Ballard and Sarah McCallion, and no other near relations; and all of these are provided for in his will, if the change of description of the lot given to Henry is admissible; otherwise Henry is unprovided for, except in a residuary bequest of personal property in connection with others. The following are the material clauses of the will. After expressing the ordinary wishes and hopes with regard to the disposal of his body and a future life, the testator adds: "And touching worldly estate, wherewith it has pleased Almighty God to bless me in this life, I give, devise and dispose of the same in the following manner and form." He then gives and bequeaths to his wife one third of all his personal estate, forever, and the use of one third of his real estate for life, remainder to his infant son, James. He then proceeds: "I bequeath and give to my dear and affectionate mother, Dorcas Walker, forever, all of lot numbered 7, in square 106, as laid down on the plan of the City of Washington, together with all the improvements thereon erected and appurtenances thereto belonging.

"I bequeath and give to my dearly beloved brother, John Walker, forever, all of lot numbered 6, in square 106, with the two story brick house, back building, and all appurtenances thereto belonging.

"I bequeath and give to my dearly beloved brother, Lewis Walker, forever, lots 23, 24 and 25, in square numbered 106, together with a two story brick building, with a basement story back building, and all appurtenances thereto belonging and erected on one or more of said lots.

"I bequeath and give to my dearly beloved brother, Henry Walker, forever, lot numbered 6, in square 403, together with the improvements thereon erected and appurtenances thereto belonging."

Then, after giving to his three sisters and his infant son, respectively, other specific lots, with houses thereon, he proceeds as follows:

"I also bequeath and give to my infant son, James Walker, forever, the balance of my real estate believed to be and to consist in lots numbered 6, 8 and 9, with a house, part brick and part frame, erected on one of said lots, in square 116; lots 31, 32 and 33, in square numbered 140, and a slaughter house erected on one of said lots; lots numbered 8 and 11, in square

"The balance of my personal estate, whatever it may be, I desire shall be equally divided between my mother, Dorcas Walker, my sister, Sarah McCallion, and my brothers, Jno., Lewis and Henry Walker."

It is clear from the will itself:

1. That the testator intended to dispose of all his estate.

2. That he believed he had disposed of it all in the clauses prior to the residuary clause, except the specific lots thereby given to his son.

3. That when he gave to his brother, Henry, lot number 6, in square 403, he believed he was giving him one of his own lots. On general principles, he would not have given him a lot which he did not own; and he expressly says, "touching worldly estate, wherewith it has pleased Almighty God to bless me in this life, I give, devise, and dispose of the same in the following manner."

4. That he intended to give a lot with improvements thereon erected.

Now, the parol evidence discloses the fact that there was an evident misdescription of the lot intended to be divided. It shows: first, as before stated, that the testator, at the time of making his will and at the time of his death, did not and never did own lot 6, in square 403; but did own lot 3, in square 406; second, that the former lot had no improvements on it at all, and was located on Ninth Street, between I and K Streets, while the latter, which he did own, was located on E Street, between Eighth and Ninth Streets, and had a dwelling house on it and was occupied by the testator's tenants; a circumstance which precludes the idea that he could have overlooked it.

It seems to us that this evidence, taken in connection with the whole tenor of the will, amounts to demonstration as to which lot was in the testator's mind. It raises a latent ambiguity. The question is one of identification between two lots, to determine which was in the testator's mind; whether lot 3, square 406, which he owned and which had improvements erected thereon and thus corresponded with the implications of the will and with part of the description of the lot and rendered the devise effective, or lot 6, square 403, which he did not own, which had no improvements thereon and which rendered the devise ineffective.

It is to be borne in mind that all the other

property of the testator, except this one house and lot, was disposed of to his other devisees; at least that was his belief as expressed in his will, and there is no evidence to the contrary; while this lot (although he believed he had disposed of it), was not disposed of at all, unless it was devised to his brother Henry, by the clause in question. In view of all this, and placing ourselves in the situation of the testator at the time of making his will, can we entertain the slightest doubt that he made an error of description, so far as the numbers in question are concerned, when he wrote or dictated the clause

*

Chief Justice Marshall, in Finlay v. King's Lessee, 3 Pet. 377 [28 U. S. bk, 7, L. ed. 712], lays down the general rule that underlies all others. "The intent of the testator," says he, "is the cardinal rule in the construction of wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail, although in giving effect to it some words should be rejected or so restrained in their application as materially to change the literal meaning of the particular sentence."

But it is not our intention to review or classify the decisions. They are legion. The intrinsic difficulty of stating the rule as applicable to all cases is such as to make it presumptuous in anyone to attempt to chain it down and fix it in the form of a verbal definition. Sufficient appears from the authorities already quoted to show that whilst no bill in equity lies to reform a will, because its author is dead, and his intent can only be known from the language he has used, when applied to the circumstances by which he was surrounded, yet a careful study of that language and of those circumstances will generally disclose any inadvertency or mistake in the description of persons or things, and the manner in which it should be corrected, without adding anything to the testator's language, and thereby making a different will from that left by him. We will only quote, further, an observation of Chief Justice Thompson, of New York, in Jackson v. Sill, 11 Johns. 201, which is very pertinent to the present discussion. In that case the court rejected the extrinsic evidence offered to remove a supposed latent ambiguity in a will, for the very good reason that it appeared, on examination, that no ambiguity existed. But the Chief Justice justly said: "It is undoubtedly a correct rule, in the construction of wills, to look at the whole will for the purpose of ascertaining the intention of the testator in any particular part, where such part is ambiguous. But where the intention is clear and certain, and no repugnancy appears between the different parts of the will, no such aid is necessary or proper." Of course, in the case of a latent ambiguity such repugnancy can only appear by means of the evidence which discloses the ambiguity.

In view of the principles announced in these authorities, the case under consideration does not require any enlargement of the rule ordinarily laid down, namely: the rule which requires in the will itself sufficient to identify the subject of the gift, after striking out the false description. The will, on its face, taking it all together, with the clear implications of the context, and without the misleading words, "six" and "three." devises to the testator's brother, Henry, in substance as follows: "I bequeath and give to my dearly beloved brother, Henry Walker, forever, lot number-, in square four hundred and, together with the improvements thereon erected and appurtenances thereto belonging,-being a lot which belongs to me, and not specifically devised to any other person in this my will." In view of what has already been said there cannot be a doubt of the identity of

* Kurtz v. Hibner is reported in 55 Ill. 514.

ership, by its having improvements on it, by its being in a square the number of which commenced with 400, and by its being the only lot belonging to the testator which he did not otherwise dispose of. By merely striking out the words "six" and "three" from the description in the will, as not applicable (unless interchanged) to any lot which the testator owned; or, instead of striking them out, supposing them to have been blurred by accident so as to be illegible, the residue of the description, in view of the context, so exactly applies to the lot in question, that we have no hesitation in saying that it was lawfully devised to Henry Walker.

The judgment is reversed and the cause remanded, with directions to award a new trial. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Mr. Justice Woods, with whom concurred Mr. Justice Matthews, Mr. Justice Gray and Mr. Justice Blatchford, dissenting:

Mr. Justice Matthews, Mr. Justice Gray, Mr. Justice Blatchford and myself cannot concur in the judgment of the majority of the court.

The suit was an action of ejectment in which the will was offered in evidence to prove the plaintiff's title. The property in controversy was lot 3, in square 406, in the City of Washington. The plaintiff claimed under a devise of lot 6, in square 403. The devise was as follows: "I bequeath to my dearly beloved brother, Henry Walker, forever, lot numbered 6, in square 403, together with the improvements thereon erected and the appurtenances thereto belonging.' The devise does not describe the property sued for. Extrinsic evidence to aid the devise was offered by the plaintiff, who insisted that it was admissible for the purpose of remov ing a latent ambiguity.

Latent ambiguities are of two kinds: first, where the description of the devisee or the prop erty devised is clear upon the face of the will, but it turns out that there are more than one estate or more than one person to which the description applies; and second, where the devisee or the property devised is imperfectly or in some respects erroneously described, so as to leave it doubtful what person or property is meant.

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It is clear that if there is any ambiguity in the devise under_consideration it belongs to the latter class. But there is no ambiguity. The devise describes the premises as lot 6, in square 403. It is conceded that there is such a lot and square in the City of Washington, and but one; and it is not open to question what precise parcel of land this language of the devise points out. It clearly, and without uncertainty, designates a lot on Ninth Street, between I and K Streets, well known on the map of the City of Washington, whose metes and bounds and area are definitely fixed and platted and recorded. The map referred to was approved by President Washington in 1792, and recorded in 1794. Thousands of copies of it have been engraved and printed. All conveyances of real estate in the city made since it was put on record refer to it; it is one of the muniments of title to all the public and private real estate in the City of Washington, and it is probably better known than any document on record in the District of [222]