ords were subject to be changed unofficially by word of mouth.

SECTION 4. EXTRINSIC EVIDENCE TO INTERPRET WRITINGS.

§ 112. Oral declarations in the interpretation of writings. It has been seen that oral declarations are not admissible for the purpose of contradicting or altering the terms of an instrument; but such evidence for the purpose of interpreting the instrument is a different matter. Some contracts are absolutely clear and unequivocal in themselves. In such cases there is no room for interpretation. But fully as many contracts must be taken in connection with the circumstances under which they were made and the purpose of the contracting parties, in order to be rightly understood. Such contracts do not tell the whole story; they are susceptible of one or more constructions, and, accordingly, extrinsic evidence is admissible to show the construction intended by the parties.

§ 113. Customary meaning of terms. A common instance of interpretation by outside evidence occurs in the case of technical or trade terms. An English jeweler by will left to his son "the sum of i.x.x." The sentence without explanation is meaningless, but the court allowed testimony to be offered that in the jeweler's trade “i.x.x.” represented a hundred pounds and the doubt was removed. The evidence did not contradict the instrument; it simply showed what was meant (34). Again, we are familiar with the usage among plasterers, in estimating the number of square yards in a given job, to consider

(34) Kell v. Charmer, 23 Beav. 195.

not merely the actual area plastered but the entire wall area including windows and doors. Evidence of this custom has been allowed in the interpretation of the term square yard" in a plastering contract (35).

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§ 114. Construction of wills. Interesting and important questions of evidence constantly arise in the construction of wills. The fact which must be borne in mind in all such cases is that what the law recognizes is not necessarily the intention of the testator, but his intention as expressed in his will. Accordingly, evidence of intention as gathered from the conversation and even the letters of the testator is inadmissible, when it contradicts the will itself. It is for this reason that, if the will as written is ambiguous after all reasonable inferences are indulged, the testator's intention as ascertained from outside declarations cannot be annexed to the will to make it certain. That would be to change the character of the document from a doubtful instrument to one certain. On the other hand, when the will is not indicative of any lack of definite decision on the part of the testator but is merely susceptible of two or more constructions, outside evidence is admissible to show which was intended. This is not a case in which the testator seems to have been in doubt as viewed through his will; only we find it hard to understand him. As in the case of poor handwriting, the difficulty is not the testator's in expressing, but ours in reading his intention. Therefore, any evidence is admissible which will enable us to interpret and give effect to his real intention, not in opposition to his will, but in

accordance with it rightly understood. These considerations will become clearer from-illustration.

§ 115. Wills sometimes not open to interpretation by extrinsic evidence. There are numerous cases of wills so doubtful that they do not permit of interpretation by extrinsic evidence. Thus, a woman bequeathed all her real and personal estate to Elizabeth Travers and James Ulrich, and by another clause she gave all the remainder of her personal estate to her uncle's daughters, who were different persons. Clearly she had named two sets of persons to whom a portion of her personal estate should pass on her death, and her will, being inherently uncertain in this respect, other evidence of what she intended to do was not allowed; as to so much of her property the will failed (36). Another testator left four houses to four sons respectively, but in describing the houses he left the street number blank in each case, so that the will was uncertain as to which house should go to which son. This will also failed for uncertainty, and the property descended as if there had been no will (37).

§ 116. Extrinsic evidence often received in aid of interpretation. Cases in which the testator's intention has been discovered by the aid of extrinsic evidence are even more numerous. A testator left a certain sum to his daughter, to go on her death to her children by any husband whom she might marry except Mr. Thomas Fischer. When the will was probated, it was shown by evidence that Mr. Thomas Fischer was a married man with a fam

(36) Ulrich v. Litchfield, 2 Atk. 372.

(37) Asten v. Asten, [1894] 3 Ch. 260.

ily, but he had a son, Henry Tom Fischer, who was courting the daughter during the testator's life and after the death of the latter married her. The will on its face seemed plain enough that children by Henry Tom Fischer were not meant to be barred, but the court held that the evidence that Thomas Fischer was already married raised a doubt as to whom the testator had in mind, that the description might almost as well refer to Henry Tom Fischer, and that evidence of the circumstances of the family showed that in the mind of the testator it certainly did refer to him. Accordingly the daughter's children by Henry Tom Fischer were barred from the bequest (38).

Likewise, an American testator bequeathed a portion of his estate to the American Tract Society. When the will came to be enforced it was shown in evidence that there were two societies by that name, one in New York and the other in Boston, and that both were organized for the distribution of the Bible. The case was held proper, therefore, for extrinsic evidence, which showed that the testator was acquainted with the New York society and that he must have intended that as the object of his bounty (39). But, in another case, where the testator left legacies to the Seaman's Aid Society of Boston, evidence that what the testator meant was the Seaman's Friend Society of New York and Boston, another organization for the same purpose, was rejected. This was not a case where the will designated a name which might apply to two or more societies. On the contrary, the description

(38) In re Wolverton Estates, 7 Ch. D. 197. (39)

Bodman v. American Tract Society, 9 Allen (Mass.) 447.

in the will was satisfied by only one organization, and, if the testator made a mistake in naming it, it was a mistake which was irremediable (40). Again the rule is illustrated that the only intention which can be shown, in construing a will, is intention consistent with the terms of the document and not intention which is opposed to it.

(40) Tucker v. Seaman's Aid Society, 7 Met. (Mass.) 188.