shows that they all accept of the general rule that, when a latent ambiguity is said to exist in a will, if there is found to be a sufficient correct description to identify the subject or object, which it is claimed was intended by the testator, remaining after the rejection of the erroneous portion, then the court will allow extrinsic evidence to be introduced to create the ambiguity and to remove it. Thus it would seem that it is a condition precedent to the admission of extrinsic evidence that it be shown sufficient description would remain to identify the property after the rejection of the erroneous part. This, we take, is the generally accepted rule throughout the United States, but the difficulty arises in its application. In the first place, we find the courts differing as to when an ambiguity can be said to exist. With an almost identical state of facts, it was decided in Kurtz v. Hibner that there was no ambiguity, while in Decker v. Decher the court emphatically declared the existence of one. Without considering the question to a greater extent let us note the circumstances of these three cases and see what considerations induced the decisions.

In each case it is strongly contended by counsel that there is a latent ambiguity in the will under consideration, for no man could intend to give property which he did not own. But is this supposition correct? "To maintain this assumption," says Judge Caton, "we must find that the court, as a matter of law, must declare that it was impossible for the testator to devise property to which he had not a present title, when there is no expression in the will intimating such purpose."

While we must admit that testators generally do not do such a thing, yet we can readily conceive how many such cases would arise, and we doubt not that such do arise.

The testator may think that he is the true owner of the land deyised, or he may mistake this piece of land for another piece of land which he does own, er he may have in view an intended purchase of the land, or he may wish to bring about a case of election, or he may wish to use this means to disinherit a relative. And so we might multiply cases, for human nature is so often a puzzle and eccentricity is so common that it would be exceeding hard to say that a man must intend to do this and cannot intend to do that. Experience teaches us that it is not always safe to say just

what is in a man's mind, until he has given outward expression to his thoughts. Then, again, a man will not do as he says he intends, so that it would not be safe to say that, when he has promised to devise property to a relative, he must necessarily do so, and until he has actually done so, it is not possible to say that he even intended to do so. But, you may say, this is not the general rule. True, but must courts in construing wills go by the general rule of human nature—must they sit as judges of the probability of a man's intention? We understand this is not the case. They deal with expressed intentions only. As a general rule, a testator would include all his property in his will, but the law does not seem to make such a presumption. The court does not favor the devisee to such an extent as to make many presumptions in his favor, but on the contrary, the presumptions are usually against him and he must overcome them.

So in this case, we cannot think that it is so nearly impossible for a man to devise property which he does not own, that the presumption will be justified that it is his property which he has intended to devise. Thus we must think that the court in Kurtz v. Hibner was justified in denying the presence of an ambiguity in the will.

But what amount of perfect additional description is necessary to justify the admission of extrinsic evidence? We find that the courts will often rely upon apparently unimportant words and phrases to identify the property. "The Big Spring, situated thereon," "In the possession of R. H.," "being the same I purchased of J. P.," or even mere ownership, directly or indirectly stated, have all served to uphold wills, but the only case as yet called to our attention, in which the court upheld a devise upon an implication of ownership is Decker v. Decker, but upon this very point the later case of Bingel v. Volz overruled that decision, this latter seeming to be one of those rather rare cases where the court admitted that, though there was an ambiguity present, yet there was not sufficient in the will to identify the property, hence the devise must fall.

This latter position we can hardly admit, even though in the end it effects what seems to be the correct law upon the subject. But we will not be permitted in this article to fully state our views on

this particular point. Neither do we feel justified in entering into a further discussion of the numerous and perplexing questions which arise in the mind of him who devotes some time to the study of Kurtz v. Hibner and kindred cases.

In closing, in answer to the question is Kurtz v. Hibner law in Illinois today, let us state, that a consideration of the cases seems to show that it is well recognized as such, in so far as it refuses to admit extrinsic evidence in explanation, when the property described in the will does not happen to belong to the testator. But, in that it regards such a state of facts as no more than a simple mistake and refuses to regard it as an ambiguity, the law seems to have been somewhat unsettled by the rather obscure decision of the court in Bingel v. Volz, and it would be difficult to tell just what will be the decision in a later case upon this point. Chicago, Ill., February, 1895.

EDWARD LEE HOLLETT.

Published monthly during the school year by students of Northwestern University Law School.

Address correspondence to NORTHWESTERN LAW REVIEW,
Masonic Temple, Chicago, Illinois.

COMMENT.

WE like the index pages of the National Reporters, because their

headnote makers often enlighten (designedly, no doubt) the tedious task of the conscientious peruser by bits of amusing law. Take, for instance, the following: "Domicile: Where a resident of Pennsylvania goes to Illinois, and from thence to California, there is no presumption that he was a resident of Missouri."

True; nor that he lived in China, nor that he was massacred in Armenia, nor that he was with Grant."

No wonder that young men crowd into the profession nowadays under the impression that it is as simple a business as building a twelve-story "sky-scraper" or peddling oranges, for if the law stu

dent were to read such propositions without being told that they were designedly humorous, he would readily believe that the law consisted mainly of common sense. Of course the credit for this proposition cannot be given to the Missouri court which decided the case, for it decided in fact a very different thing.

THE fact is the courts themselves can seldom be credited with a sense of humor. Take the following decision of the Texas court of civil appeals in Mutual Life Ins. Co. of New York v. Simpson (28 S. W. 837). The deceased Mr. Simpson, it seemed, had in an insurance application answered "not at all" to the question "Do you ever drink wine?" The defendant's evidence was that "at some time during his residence at Bryan, Simpson was considered a drinking man, and at that time he drank freely, and even excessively," and that "after he moved to Eagle Pass he was not addicted to any such habit, though he occasionally would take a drink." But the court wishes it understood that, even "taking the testimony of the defendant at its strongest," Mr. Simpson must not be regarded as having falsified in his application, and that "the jury was amply warranted in finding that this answer of the insured was true." It is no doubt outrageous for a finical New York insurance company to attempt to discourage the thrift of respectable citizens who are "drinking men" and "even drink excessively," and it is well for them to understand that Texas will not calmly suffer such an interference with the inalienable rights of a bon pere de famille, who is entitled not only to be free, but to drink freely, and "even excessively." Let them take notice, then, that for a Texas man to say that he uses wine "not at all" does not mean that he does not "drink freely" nor "even excessively.” We suggest, however, that perhaps a more effective support for the decision might have been found if the Texas court had taken judicial notice that "whiskey" is not "wine," and that whiskey is the State drink, and hence one might drink wine "not at all," and yet in Texas drink whiskey "freely" and "even excessively."

A

WARNING comes just in time for those clergymen of Oshkosh and Milwaukee who are starting a crusade against dancing, charity balls, etc. Have they ever thought of the possibilities of a libel suit? For they exist, and are imminent, if St. James Mili