Mann v. Mann

The Chancellor.

The question here is, whether, under the bequest of “ all the rest, residue, and remainder of the moneys belonging to my estate at the time of my decease,” the widow be entitled to any thing more than the cash which the testator left at his death ; or whether, as the defendants have contended, she be entitled also to the bonds, mortgages, and notes ?

*234 This question has led to another, and that is, whether the parol evidence offered be admissible to explain the testator’s meaning ?

It is a well-settled rule, that seems not to stand in need of much proof, or illustration, for it runs through all the books, from. Cheney’s Case (5 Co. 68.) down to this day, that parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases ; 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described ; and, 2. To rebut a resulting trust. All the cases profess to proceed on one or the other of those grounds. (Hodgson v. Hodgson, Prec. in Chan. 229. 2 Vern. 593. Pendleton v. Grant, 2 Vern. 517. Harris v. Bishop of Lincoln, 2 P. Wms. 135. Beaumont v. Fell, 2 P. Wms. 140. Hampshire v. Pierce, 2 Ves. 216. Urich v. Litchfield, 2 Atk. 372. Lord Walpole v. Lord Cholmondelly, 7 Term Rep. 138. Lord Eldon, in Druce v. Denison, 6 Ves. 397.) If there be a mistake in the name of the legatee, or there be two legatees of the same name, or if the testator bequeath a particular chattel, and there be two or more of the same description, or if, from any other misdescription of the estate, or of the person, there arises a latent ambiguity, it may and must be explained by parol proof, or the will would fall to the ground for uncertainty. When a latent ambiguity is produced, according to the language of the courts, (Lord Thurlow, in 1 Ves. jun. 259, 260. 415., and Lord Kenyon, in 7 Term Rep. 148.,) in the only way in which it can be produced, viz. by parol proof, it must be dissolved in the same way; and there is no case for admitting parol evidence to show the intention upon a latent ambiguity on the face of the will. They are all cases of latent ambiguity; and the objection to supply the imperfection of a written will, by the testimony of witnesses, is founded on the soundest principles of law and policy. “ It wouldbe full of great inconvenience,” say the justices, in Cheynefs *235 case, “ that none should know, hy the written words of a will, what construction to make, or advice to give, but that it should be controlled by collateral averments out of the will.53 And if collateral averments be admitted, to use the words of Sir Matthew Hale, in Fry and wife v. Porter, (1 Mod. 310.,) how can there be any certainty ? a will maybe any thing, every thing, nothing. The statute appointed the will to be in writing, to make a certainty; and shall we admit collateral averments and proofs, and make it utterly uncertain ?” In a still later case, (3 P. Wms. 354.,) Lord Talbot observed, that if we admit parol proof, “ then the witnesses, and not the testator, would make the willand he spoke with equal decision in the case of Brown v. Selwyn, (Cases temp. Talbot, 240.,) though the parol proof, in that case, would have, left no doubt of the intention of the testator being contrary to the legal operation of the will. This case comes with the more weight since the decree was affirmed in the House of Lords, (4 Bro. P. C. 179.,) who would not suffer the parol evidence to be read, nor even the answer as to that matter.

Perhaps a solitary dictum may, occasionally, be met with (for there are volumes of cases on the subject of wills, immensus aliarum super alias cumulus) in favour of the admission of parol proof, to'explain an ambiguity of uncertainty appearing on the face of a will; though Lord Thur-low says, there is no such case. If there be, we may venture to say, it is no authority. If a will be uncertain, or unintelligible on its face, it is as if no will had been made : quod voluit non dixit. We ought not to forget, that no verbal- or nuncupative will is good, within the statute of frauds, except under special circumstances; and that no will concerning any personal estate (and of that we are now speaking) shall be revoked, or altered, by any words, or will, by word of mouth only. (Laws, sess. 36. ch. 23. sect. 14, 15, 16.) The only apology for parol proof, in any case, is the necessity of the thing, because the ambiguity is *236 so complete as to elude all interpretation, and would destroy the devise altogether, unless explained. But here is no such difficulty, and no such necessity for resorting to parol proof. The word moneys will apply, beyond all doubt, to the cash which the testator left at his death; and the bequest has, at all events, a certain and definite subject on which it can operate. In the late case of Doe v. Oxenden, (3 Taunt. Rep. 147.,) the court of C. B. considered this fact as a very material circumstance, and one which made the case to differ from all others on the subject of explaining a will by parol proof; because, in all cases that had been before, the evidence was admitted to explain a part which, without such explanation, could have had no operation. But in that case, as there was sufficient to satisfy the devise according to the ordinary meaning of the description, collateral evidence, to show that the testator meant to use the description in a more extensive sense, was rejected. There was a similar decision in Doe v. Brown, (11 East, 441.,) and the two cases are strong in respect to this point.

My conclusion is, that the parol proof cannot be received or permitted to enter into the consideration of the case; for it will readily be admitted, that to serve the particular purpose, or meet the supposed hardship, of an individual case, we ought not to break in upon the established principles of law. The observation of Lord Talbot, in one of the cases referred to, contains the true and wise doctrine on this subject, that it is better to suffer a particular mischief than a general inconvenience.

The only question, then, in this cause, is on the construction of all the will itself.

. I do not perceive, from a perusal of the will, any reason for construing the word moneys beyond its popular and legal meaning. It means gold and silver, or the lawful circulating medium of the country. (Co. Litt. 207. a.) It may be extended to bank notes, when they are known and approved of, and used in the market, as cash. Perhaps it would be *237 proper to extend the term to money deposited in bank, for that is cash, and considered and used as cash placed there for safe keeping, in preference to the chest of the owner. It was mentioned by the counsel, in the recent English case of Hotham v. Sutton, (15 Vesey, 319.) that, a bequest of “ money,” money and bank notes, in the possession of the testator, or at his banker’s, will pass, and nothing else ; and they said it had always been so considered; and the Chancellor observed, that stock never passed by the word money. Beyond these bounds the word cannot be extended, unless it be accompanied with explanations showing that the testator alluded to other property than his cash, and defining that property as money at interest, on bond and mortgage, or money in the public funds. If he uses the word absolutely, without any such accompanying qualification, or reference, it cannot be construed beyond its usual and legal signification, without destroying all certainty and precision in language, and involving the meaning of the will in great-uncertainty. The difficulty would be to know what precise check to give to the force of the term, after we have once moved it from its seat; vires acquirit eundo. Shall it be confined to any particular species or description of choses in action ? or shall it embrace, promiscuously, every species of debt and security—book debts, notes, bonds, mortgages, judgments, turnpike, manufacturing, insurance, bank, and national, stock ? or must we go into a difficult inquiry to ascertain which of these securities was taken for cash lent, and which for goods or lands sold, or services rendered, and which as a compensation for torts or other causes of action ? It appears to me that it would contravene the rules of law, and the policy of the statute, and be of dangerous consequence, to depart from the common and fixed meaning of the word moneys, and which meaning the testator must be presumed to have understood; especially as the bequest will still be effectual and productive. The cases of Rose v. Bartlett, (Cro. C. 292.,) and of Day v. Trig, (1 P. Wms. 286..) *238 may be cited to show, that where a will can have effect, words are not to be strained to enlarge the will; and that a lease for years will pass, under a devise of all my lands, if the testator had no fee simple estate; and this, in order to - prevent the devise from being void; but if he had an estate in fee, the chattel interest will not pass. The testator, in the present case, understood how to explain the word moneys, when he meant to designate other property than his cash in hand. He uses it, repeatedly, in the subsequent parts of the will, but it is always with a clear and certain reference to the subject matter to which it is to be applied; as when he discharges his brother Michael “ from the payment of all moneys which he shall owe me at my decease;” and when he bequeaths to the children of his brothers the remainder of his estate, “or the moneys arising from the sale thereof.”

There is a settled distinction, on this subject of the construction of wills, between cash or money, and choses in action ; and this increases the difficulty of the attempt which has been made to confound them. Thus, cash will pass by a bequest of moveables; but the better opinion, according to Godolphin, (Orphan's Legacy, p. 417. s. 9.,) is, that money at interest will not so pass, because it is a debt, and not cash. So, a devise of goods and chattels, in such a place, will not include a bond being there, as it has no locality ; but it will include cash, and also bank notes, because they are considered quasi cash. (Chapman v. Hart, 1 Ves. 271. Moore v. Moore, 1 Bro. 127. Fleming v. Brook, 1 Schoale & Lefroy, 318.)

Nor is there any reason to infer, from the will, that due provision is not made for the widow, without permitting her to sweep away, under the denomination of money, all the notes, bonds, and mortgages belonging to the testator. The testator gives to her, in fee, his dwelling house and six acres of land lying on the Bowery-road, in the city of New-York. He also gives to her, in fee, two other lots in the same place. *239 containing an acre and a half; and he further gives her all his household furniture, horses, farming stock, &c. The expression of all the rest, residue, and remainder of the * moneys, 8zc. belonging to his estate, leaves the question of construction precisely the same as if those words had not been used, for the question still occurs, what were his moneys? The words rest, residue, &c., seem to be without use or meaning, as there used, for there were no moneys, previously alluded to, except the 1,000 dollars bequeathed to his niece, Mary ; and that sum was to be paid, at large, out of his personal estate ; and it is not contended that the word “ moneys” Can have such an extensive sense.

The result of my opinion is, that the executors must account to the plaintiffs for the bonds, mortgages, and notes left by the testator ; and a reference must be made to a master, to take and state an account between the parties, in which the defendants must be allowed for whatever payment and expenses are justly chargeable to the property; and be chargeable with all the securities aforesaid ; and the question of costs, and all other questions, to be reserved until the coming in of the report.

Decree accordingly. (a)

This case, which was decided the 27th of September, 1815, has been printed out of its chronological order; it should have followed the case of Woods v. Monell, (post, p. 507.) The error, however, is not deemed of sufficient importance, to compensate the' trouble and expense of correction.