codicil, and such facts were received for the sake of assisting and elucidating the internal evidence, by shewing that the omission of certain legatees named in the will, did not spring from any new intention of the testator.

is

The same Judge, in a case of double legacies, which afterwards came before him, upon the question, whether the parol evidence could be admitted, observed, that "if it is an established rule that two legacies are accumulative, where they are given by different instruments, he could not raise a presumption by evidence against it, and he was inclined to think it must be taken to be a rule." The rule was also laid down in Ridges v. Morrison, by Lord Chancellor Thurlow" that where a testator gives a legacy by a codicil as well as by his will, whether it be more, less, or equal, to the same person who legatee in the will, it is an accumulation." The same Chancellor adds, that it is incumbent upon the executor to produce evidence to the contrary, if he contest such accumulation. But the species of evidence to which his Lordship afterwards adverts, is wholly internal, and arising out of the context of the instruments. The rule, as laid down in the case just alluded to, was adopted from Hooley v. Hatton, (see the note at the end of the case of Ridges v. Morrison,) which case of Hooley v. Hatton, Lord Thurlow observed, was examined with abundant care, and he accompanied that observation with a remark, that it was unnecessary to repeat the cases after reading the very able opinion of Mr. J. Aston, which, he

⚫ Osborne v. Duke of Leeds, 5 Vez. Jun. 269.

• 1 Bro. C. C. 389.

said, contained the whole doctrine of the law upon the subject.

The state of the presumption, according to the varying circumstances of the case, seems to be settled by the result of the authorities upon the following criteria, viz. where the same specific thing or corpus (as a diamond ring, where the testator has but one,) is twice given to the same person, either by the same instrument, or by different instruments, there, in the nature of the thing, it is but a repetition.-Where the same quantity, as 100l. is twice given by the same instrument, the presumption simpliciter is against the legatee-But where the same quantity is given by the same instrument, with any additional cause assigned for it, or with any material circumstance of variation accompanying the second gift, the presumption is turned against the executor, in favour of the accumulation.--Where equal sums are given in two distinct writings, or a larger after a less, or a less after a larger, the latter gift is construed an accumulation.

But though the presumption in a case, wherein two legacies of the same sum or quantity occur in distinct instruments, leans against the executor, yet it is only a presumption simpliciter, and is turned the other way where the same cause is expressly assigned in both instruments for the gift without any additional reason.

And it seems also, according to Lord Hardwicke,

Menochius de præsumptionibus, lib. præs. 128, num. 4, 13, 14, and see Swinb. part 7, c. 20, fol. edit. 550.

" 2 Atk. 640.

that where, in a distinct instrument a larger legacy is given to the same person, assigning, in totidem verbis, and with a perfect identity, the same cause which was expressed in the former instrument, this shall not be a double legacy; with which position, Aston J. in Hooley v. Hatton, appears to agree, and the same doctrine seems to be held by Lord Thurlow, in Ridges v. Morrison above cited, and is stated to be the rule by Menochius".

parol evi

missible to

this ques.

It is to be remarked, that in the above-mentioned Whether case of Hooley v. Hatton, which is a very leading dence is adauthority, no idea appears to have been entertained determine of the admissibility of parol evidence. Mr. J. Aston tion? opened with observing, that as in the case before him, there was no internal evidence, therefore, he must refer to the general rule of law. And the Lord C. B. Smythe observed, "the intention is the clearest rule; but it is admitted on all hands, here is no internal evidence, we must therefore refer to the rule of law." And lastly, by the Lord Chancellor Bathurst, it was said, that "no argument could be drawn in the case before him from internal evidence, they must, therefore, refer to the rule of law."

What Lord Thurlow's opinion was, as to the admissibility of parol evidence, does not expressly appear in the above-mentioned case of Ridges v. Morrison, but it is to be observed, that in illustrating his remark, “that slight circumstances may operate in proof of the testator's intention," he specified such only as could be collected from the context of

Lib. 4, præs. 128, and see Swinb. 4to edit. 201. See also the recent case of Benyon v. Benyon, 17 Vez. Jun. 34.

the instruments. And in Campbell v. the Earl of Radnor', the decision turned upon the words of the instruments. But in Coote v. Boyd, the point respecting parol evidence came directly under adjudication, in which Lord Thurlow laid down the rule thus, "the question, whether by giving two legacies, the testator did not intend the legatee to take both, is a question of presumptiou donec probetur in contrarium, and will let in all sorts of evidence." And the same Chancellor further observed, (what the temper of later decisions seems inclined to adopt, as the true and practicable distinction) that "where the question arises upon the construction of words simply, qua words, no evidence (i. e. extrinsic evidence) can be admitted."

Whether his Lordship would have been ultimately governed by these maxims, if the decision of the case had depended upon it, cannot be known, since the case was determined upon the internal evidence of the will and codicil themselves. It was much contended, that it was a case of presumption, and that all presumptions were open to be encountered by parol evidence.

1 1 Bro. C. R. 271.

2 Bro. C. R. 521.

SECTION IV.

Ambiguities.

THE instance most frequently chosen as the example of the ambiguitas latens, is that of a devise to a person of the same name with another, without any specific description appearing upon the face of the will, to designate the real object of the testator's bounty. The case put by Lord Hobart, was that of a devise by a testator to his son John, having two sons of that name; and the same Judge having a little above decisively declared, that a testator's intent must be expressed in a will written, that it may be certain to the Court, observed on the case just put, that an averment might make this, i. e. who was designed by the testator, certain. The case and the comment contain together a true description of the ambiguitas latens, to constitute which there ought to be a positiveness and certainty of verbal expression becoming ambiguous in sense by the discovery of a matter not appearing in the instrument. This is the ambiguity latent, which, as it is created by facts, so it is removeable by a further investigation of facts.

A husband devised to his wife 7001. East India Stock, having no East India Stock; but he had 7007. Bank Stock; and the words were held to carry the

* See 5 Rep. 68. Lord Cheyney's case. Hob. 32. Counden v. Clark, 3d point, and 1 Salk. 7. Lepcot v. Brown.