the interpretation of wills are, it has been said,' the same as where other writings are concerned. It is evident, however, that certain elements enter into the consideration of the question how far is extrinsic evidence admissible in relation to wills that are not present where other writings are under consideration. In reply to any demand for an assimilation of contracts and wills in this particular, it may be said that the former instruments possess a mutuality of character and imply a reciprocity of benefits or disadvantages which furnish strong reasons for refusing to allow contracts to be varied by evidence of parol declarations of intention. But the benefit conveyed by a will is voluntary and unilateral. The contents of the instrument itself, unlike a contract or writing between parties, are usually a secret in the keeping of the testator or of his confidential adviser, and this circumstance alone is sufficient to cast some suspicion upon any public oral declarations of the testator as to his intention. The law encourages this secrecy, and, by consistently refusing to regard the secret testamentary act or writing as other than revocable, enables the testator "to baffle with equivocation or misrepresentation the importunities of the expectant and the inquisitiveness of the curious." So, on general principles, it is manifestly absurd to accept hearsay evidence, which must often necessarily be given by persons who by social connections or by ties of kinship have or imagine they have some moral or legal claims upon the bounty of the testator, to show that the latter, whose lips are now forever sealed by death, meant something other than his intention solemnly and formally committed to writing and authenticated in the express mode prescribed by statute. So, despite the fact that wills are frequently executed under circumstances very unfavorable to mental clearness, or to the lucid expression of intention, and despite the tendency of the courts to favor, so far as is possible, the exercise of the testamentary power so that it may with truth be said that the law prefers that a man should not die intestate, the modern cases construing wills restrict to a greater extent than formerly the admission of parol evidence in relation thereto. At the outset also it is necessary to distinguish carefully be

11 Greenl. on Ev., § 287.

Abbott, Trial Ev., p. 131.

tween extrinsic evidence to show or establish the intention directly, which is never admissible, and extrinsic evidence to explain the intention or to ascertain what it was as expressed by the language of the will, or to show that the will does actually express the testator's intention or that he never intended the writing as testamentary.

So under the general rule that the invalidity of an instrument may be shown, parol evidence is always admitted to show that a paper purporting to be the will of the testator is not his will and does not contain his testamentary intention because it was executed by mistake,1 in order to effect some non-testamentary object,2 or as a duplicate of an earlier writing. So parol evidence is always admissible to show that the testator was mentally incapacitated on account of imbecility or insanity. If a testamentary gift is procured by a promise to hold the same for the benefit of another person, this promise may be shown by parol and it will be deemed to create a constructive parol trust.5 Where it is alleged that a will was executed under undue influence, extrinsic evidence is admitted to show the surrounding circumstances of the testator at the moment of execution, his private history and that of his family, and other facts necessary to enable the court to ascertain

1 In re Hunt, L. R. 3 P. & D. 250; In re Gordon (1892), P. 228; Covert v. Sebern, 73 Iowa, 564; Severson v. Severson, 68 id. 657.

2 Lister v. Smith, 33 L. J. Prob. 29. Hubbard v. Alexander, 3 Ch. D.

738.

4 Ross v. McQuiston, 45 Iowa, 145; Ellis v. Ellis, 133 Mass. 469; Dyer v. Dyer, 87 Ind. 13; Rule v. Maupin, 84 Mo. 587; In re Blakely, 48 Wis. 294; Harrison's Appeal, 100 Pa. St. 458; Frary v. Gusha, 59 Vt. 257; 9 Atl. Rep. 549; Schneider v. Manning, 121 Ill. 376; 12 N. E. Rep. 267; In re Norman, 33 N. W. Rep. 374; 72 Iowa, 84; Prentis v. Bates, 93 Mich. 234; Johnson v. Armstrong (Ala., 1893), 12 S. Rep. 72; Bulger v. Ross (Ala., 1893), 12 S. Rep. 803;

In re Spencer, 96 Cal. 448; Morris v.
Morton (Ky., 1893), 20 S. Rep. 287.

5 Glass v. Hulbert, 102 Mass. 42; Hooker v. Axford, 33 Mich. 453; Headley v. Renner, 130 Pa. St. 542; Church v. Ruland, 64 id. 432; Dowd v. Tucker, 41 Conn. 197; Hoge v. Hoge, 1 Watts, 163, 213; Williams v. Vreeland, 29 N. J. Eq. 417.

6 Clark v. Stansbury, 49 Md. 346; Reynolds v. Adams, 90 Ill. 134; Potter's Appeal, 53 Mich. 106; Canada's Appeal, 47 Conn. 450. Where insanity is alleged it may be shown by parol that he never was mentally incapacitated or that he had recovered or that the will was executed in a lucid interval. In re Rapple, 66 Hun, 558; Shanley's Appeal (Conn., 1893), 25 Atl. Rep. 245; In re Spen

whether or not such influence existed. So, generally, where the will is written in a foreign language, or where it containstechnical words, or common words used in a peculiar sense, or technical, scientific or legal words used in a non-technical sense, or clerical mistakes obvious on its face, or where a devisee is ambiguously described or inaccurately named, parol evidence is admissible under the rules and principles elaborated in this chapter, not to show the intention, but to enable the court to place itself in the position occupied by the testator when he executed the will and to ascertain the intention from the testamentary writing applied to extrinsic objects and read in the light thus derived from surrounding and explana-tory circumstances.1

§ 223. Parol evidence to show absolute deed a mortgage — In suits for specific performance, reformation and cancellation. It is a rule of general acceptance that parol evidence is admissible in equity to show that a deed absolute on its face was intended as a mortgage, whenever fraud, accident or mistake is alleged in its execution or in the use to which it is put by the grantee. The tendency at the present day is to afford relief even in the absence of actual fraud or mistake in the execution of the deed, whenever the circumstances are such that the use of the writing as a deed would be inequitable, or where the intention to create a mortgage is shown.

cer, 96 Cal. 448; Martin v. Thayer, 37 W. Va. 38; Prentis v. Bates, 93 Mich. 234.

1 For a very clear elucidation of the somewhat contradictory rules regulating the reception of parol evidence in connection with wills, the reader is referred to Abbott's Trial Evidence, pp. 129-150.

2 First Nat. Bank v. Kreig (Nev., 1893), 32 Pac. Rep. 641; Locke v. Moulton, 96 Cal. 21; Peugh v. Davis, 96 U. S. 332; Campbell v. Dearborn, 109 Mass. 150; Harman v. May, 40 Ark. 146; First Nat. Bank v. Ashmead, 23 Fla. 379; Workman v. Greening. 115 Ill. 477: Darst v. Murphy, 119 id. 343. Moreland v. Bernhardt, 44 Tex. 275; Rogers v.

Beach, 115 Ind. 413; Knapp v. Bailey, 79 Me. 195; Biggars v. Byrd, 55 Ga. 650; Green v. Sherrod, 105 N. C. 197; Price v. Grover, 40 Md. 202 Hurst v. Beaver, 50 Mich. 612; Mar shal v. Thompson, 39 Minn. 137; Weathersley v. Weathersley, 40 Miss. 462; Shradski v. Albright, 93 Mo. 42: Pierce v. Traver, 13 Nev. 526; Odell v. Montross, 68 N. Y. 499; Stephens v. Allen, 11 Oreg. 188; Berbesick v. Fritz, 39 Iowa, 700; Kinports v. Boyton, 120 Pa. St. 306; Kerr v. Hill, 27 W. Va. 576; Hickman v. Quinn, 6 Yerg. (Tenn.) 96; Edwards v. Wall, 79 Va. 321; Nesbitt v. Cavendar, 27 S. C. 1.

3 The evidence must be clear, convincing and free from doubt in order

Under this rule may be shown the existence of a parol agreement of defeasance, the relation of the parties and the declarations of either, the possession of the premises by complainant, a loan to him by the grantee and his payment of interest, the value of the property as compared with the consideration paid, the needs of the grantor and any agreement to repay. The statute of frauds does not prevent the reception of such evidence, which is introduced not to vary but to invalidate a writing. The current of authority is decidedly in favor of the

rule that such evidence is not admissible at law, except perhaps in those states where the distinction between legal and equitable procedure has been abrogated by the modern codes.1 A third person having a claim against the grantor may show by parol that the deed is a mortgage. But when the grantee in an absolute deed has reconveyed to an innocent purchaser without notice of the true agreement between the parties, such parol evidence will not be received.3

Where specific performance of a contract is asked, the defendant is permitted to show by parol evidence that the written contract does not, either because of fraud or mistake, represent the real intention of the parties. On the other hand, where the plaintiff asks for a reformation of the contract on the grounds of mistake and its specific performance as reformed, the cases are at variance. The American cases hold that reformation and specific performance may be obtained in one action by the introduction of parol evidence by the plaintiff, irrespective of the performance by him of the parol portion of the contract.

It does not violate the statute of frauds to admit parol evidence of the real agreement as an element in the proof of fraud or other vice in the transaction which is relied on to defeat the written instrument."

1 Brainerd v. Brainerd, 15 Conn. 575; Bragg v. Massie, 38 Ala. 89; Hogel v. Lindell, 10 Mo. 483; Flint v. Sheldon, 13 Mass. 443; Brinkman v. Jones, 44 Wis. 498; Jackson v. Lodge, 36 Cal. 28; Webb v. Rice, 6 Hill (N. Y.), 219; Stinchfield v. Milliken, 71 Me. 567.

2 Walter v. Cronly, 14 Wend. (N. Y.) 63; Allen v. Kemp, 29 Iowa, 452.

3 Maxfield v. Patchen, 29 Ill. 39; Baugher v. Merryman, 32 Md. 185; Rhines v. Baird, 41 Pa. St. 356. In Buckman v. Alwood, 71 Ill. 155, the court said: "It will be perceived that in none of these cases did the court attempt to range the jurisdiction to turn an absolute deed into a mortgage by parol evidence under

The English cases hold

any specific head of equity, such as fraud, accident or mistake, but the rule seems to have grown into recognition as an independent head of equity. Still it must have its foundation in this: that where the transaction is shown to have been meant as a security for a loan, the deed will have the character of a mortgage without other proof of fraud than is implied in showing that a conveyance taken for the mutual benefit of both parties has been appropriated solely to the use of the grantee."

4 Quinn v. Roath, 37 Conn. 18; Coles v. Brown, 10 Paige, 526; Berry v. Whitney, 40 Mich. 65; Woodworth v. Cook, 2 Blatchf. 151; Ryno v. Darby, 20 N. J. Eq. 31; Cathcart v. Robinson, 5 Pet. 263; Mansfield v. Sherwin, 81 Me. 365; Ring v. Ashworth, 3 Iowa, 452; Caldwell v. Depew, 40 Minn. 528. See, also, Tiedeman on Equity, 198.

Bellows v. Stone, 14 N. H. 175;