GAMBRELL

former period, *than they then claimed. That objection does

THE EARL OF not apply, as the pleadings stand. There seems to me to be no ground of complaint, either in law or in justice.

FALMOUTH.

[ *76 ]

Rule refused.

1835. Nov. 4.

[76]

[77]

DOE D. PREEDY . HOLTOM AND ANOTHER. (4 Adol. & Ellis, 76–82; S. C. 3 N. & M. 391; 5 L. J. (N. S.) K. B. 10.)

Devise to A. of the messuage in S. in which testator resided, with the buildings to the same adjoining, and all those several closes in S. aforesaid, called C., D., and E., (with the brick-kiln erected thereon,) and F., with their appurtenances, part of the farm and lands then in testator's own occupation. Devise, further, to B. of a second messuage, and of all other the testator's lands and hereditaments in S. except those before devised to A. Under this will, B. claimed two cottages in S. which, when the will was made, adjoined the messuage resided in by the testator, but were not in his occupation, and were divided by a wall, which he had built, from the messuage.

Held, that the words referring to the testator's own occupation applied only to the premises mentioned after the words "to the same adjoining;" that evidence was admissible to shew the situation of the premises, and by whom they were occupied; but that those facts, being proved, did not raise such an ambiguity as warranted the reception in evidence of declarations made by the testator when giving instructions for his will, to shew that he intended B. to have the cottages.

THIS ejectment was tried before Williams, J. at the Oxfordshire Summer Assizes, 1836. The premises claimed were two cottages, with gardens, outhouses, &c., at Swalcliffe, Oxfordshire. The defendants made title under Joseph Preedy, the elder brother of the lessor of the plaintiff. Both brothers claimed the premises in question under the will of their father.

The testator, by his will, produced at the trial, devised to trustees all his real estate, upon trust that his said trustees and the survivor of them and the heirs of such survivor should. during the minority of his eldest son Joseph Preedy, receive the rents and profits of all that messuage or tenement in Swaleliffe aforesaid wherein he the said testator then resided, with the offices, outhouses, barns, stables and other edifices and buildings, yards and gardens, to the same adjoining, and all those several closes or enclosed grounds, pieces and parcels of land lying and being in Swalcliffe aforesaid, called or *known by the several

names of Cow House, Trenchill, Lower Trenchill, Fernhill, Close taken out of Trenchill, together with the brick-kiln erected thereon, and the Farhill, with their appurtenances, part of the farm and lands then in his own occupation, as the same should become due, and did and should stand and be possessed of such rents, issues, and profits, upon the trusts and for the intents and purposes therein-after expressed and declared concerning the same; and, when and so soon as his said son Joseph Preedy should have attained the age of twenty-one years, then did and should be seized of and in all that his said messuage or tenement in Swaleliffe aforesaid wherein he then resided, with the offices, out-houses, barns, stables, and other edifices and buildings, yard and garden to the same adjoining, and the said several closes or inclosed grounds, pieces and parcels of land in Swalcliffe aforesaid last therein-before particularly mentioned, with their appurtenances, in trust for his said son Joseph Preedy, his heirs and assigns for ever.

And upon further trust that they the said trustees and the survivor of them, and the heirs of such survivor, did and should, during the minority of his, the said testator's, son Benjamin Preedy, receive the rents, issues, and profits of all that his messuage or tenement in Swalcliffe aforesaid called the Old Grange, with the offices, out-houses, and other edifices and buildings, yard and garden, to the same adjoining, and all and every other his closes or inclosed grounds, pieces and parcels of land, and other hereditaments, in Swalcliffe aforesaid, with their appurtenances, except what he had therein-before devised to or in trust for the use of his eldest son Joseph Preedy, as the same should become due: and did and should stand and be possessed of such rents, issues, and profits, upon the trusts, and for the intents and purposes therein-after expressed and declared concerning the same; and when and so soon as his said son Benjamin should attain his age of twenty-one years, then upon trust that they his said trustees or the survivor of them, or the heirs of such survivor, did and should stand and be seized of and in all that his said messuage or tenement in Swalcliffe aforesaid, called the Old Grange, with the offices, out-houses, and other edifices and buildings, yard and garden to the same adjoining,

DOE d. PREEDY

v.

HOLTOM.

[ *78 ]

DOE d. PREEDY

v.

HOLTOM.

[ *79 ]

and all and every his said closes or inclosed grounds, pieces and parcels of land and other hereditaments in Swaleliffe aforesaid, last therein-before mentioned, with their appurtenances, in trust for his said son Benjamin Preedy, his heirs and assigns for ever. The question at the trial was, whether the cottages with the gardens &c. passed to the trustees for Joseph under the first part of the will, or for Benjamin under the subsequent devise of all the closes and hereditaments not before devised. For the plaintiff, evidence was given that the testator lived in the messuage at Swalcliffe at the time when he made his will; that the cottages had formed part of the Swalcliffe farm, but that the testator had separated them from it by a wall, and that, before and at the time when the will was made, they were so separated, and were in the occupation of tenants. It was further proved, for the plaintiff, that there were cottages on the Swalcliffe estate, a quarter of a mile from the place where the testator resided. Evidence was also given as to the comparative value of the Swalcliffe and Grange properties. And, for the purpose of shewing that the testator intended the two *cottages in question to pass under the second, and not the first clause of his will, the plaintiff's counsel proposed to prove certain declarations made by the testator, when giving instructions for his will: but this evidence was objected to, and excluded. The learned Judge in summing up told the jury that the question was one of law, and that in his opinion the cottages adjoining the Swalcliffe farm passed to Joseph by the will; but that the plaintiff should have leave to move to enter a verdict for him if the Court of King's Bench should hold, upon the facts proved, that the words of the devise were not sufficient to pass the premises in question to the trustees for Joseph's use. The defendants had a verdict, and leave was given to move.

Ludlow, Serjt. now moved that a verdict might be entered

for the plaintiff, or a new trial had on account of the rejection of evidence:

The cottages passed to the trustees for Benjamin, the lessor of the plaintiff, by the residuary clause. It is true they may be said to adjoin the tenement on which the testator dwelt.

according to the first clause, but that requires, not only that the buildings, &c., which are to pass for the benefit of Joseph shall adjoin the testator's residence, but also that they shall have been "part of the farm and lands in his occupation" at the time when he made his will. If there is a doubt as to the meaning, Benjamin, who, as the residuary legatee, stands in the situation of an heir-at-law, is entitled to a construction in his favour nothing is to be taken from him unless expressly devised. As to the evidence; extrinsic evidence was admitted in explanation of the will, and from that a difficulty resulted, which required *further parol evidence to explain it; for it appeared that the premises "adjoining" those inhabited by the testator were not "in his own occupation." This is one of the cases in which TINDAL, Ch. J., lays it down, in Miller v. Tracers (1), that "the difficulty or ambiguity which is introduced by the admission of extrinsic evidence, may be rebutted. and removed by the production of further evidence, upon the same subject, calculated to explain what was the estate or subjectmatter really intended to be devised."

:

(WILLIAMS, J. The extrinsic evidence adduced was only for the purpose of shewing the situation and divisions of the property, and the manner in which it was occupied; there was nothing beyond that, to introduce evidence of declarations.

PATTESON, J.: The declarations were offered to shew what was meant by the will; the other evidence only shewed what was within the terms of the will.

LORD DENMAN, Ch. J.: Evidence might be given to shew what were the parcels. That evidence, in the present case, did not introduce any ambiguity. It was as if the testator had said “I devise my cottages," and you had offered evidence of declarations by him that he meant his house in London.)

The evidence which it was here proposed to offer was, that the testator directed his will to be so framed as to pass the cottages to the use of Benjamin.

(1) 34 R. R. at p. 706 (8 Bing. 247).

DoE d. PREEDY

V.

HOLTOM.

[ *81 ]

[82]

LORD DENMAN, Ch. J.:

The testator devises to the trustees for Benjamin all his closes, pieces of land, and other hereditaments in Swalcliffe, except what he has before devised to or in trust for the use of his eldest son. What has he so devised? The rents and profits *of the messuage in Swalcliffe wherein he resided, with the offices "and other edifices and buildings, yards and gardens, to the same adjoining." Among these are the cottages in question. But he then gives some lands as "part of the farm and lands then in his own occupation; " and it is contended that this makes his own occupation a necessary part of the description of all that he gives to the eldest son. I think that is not so, but that part of what is given is adjoining to the residence of the testator, and part in his occupation. Then property is here shewn to exist, which precisely answers the terms of the will. Upon this point there is no doubt. The learned Judge, therefore, would not have been justified in receiving evidence of declarations for the purpose of shewing the testator's intention. The ambiguity was not raised which might have rendered such declarations admissible (1). If the testator gave instructions which have not been followed, that cannot now be helped.

PATTESON, J.:

We are desired to read the will as if the words were "edifices and buildings to the same adjoining, and now in my own oceupation." That, I think, cannot be done. Extrinsic evidence must be received, for the purpose of shewing what a will refers to; but not to clear up a difficulty in the terms of the will. If the evidence here tendered had been admitted, it would have been for the purpose of shewing, that the language of the devise in question meant "adjoining, and now in my occupation." That would have been receiving evidence to construe the will.

WILLIAMS, J., concurred.

COLERIDGE, J.:

The only expression restricting the words "other edifices and buildings, yards, and gardens," is "to the same adjoining.

(1) See Richardson v. Watson, 38 R. R. 366 (4 B. & Ad. 787).