Montgomery, Judge.
The only question necessary to be considered in this case is, are the instructions of the testator to the scrivener who drew his will admissible to explain his intention ? It is only upon the assumption that there is an ambiguity in the will, that these instructions are sought to be admitted. It is not pretended that any latent ambiguity has been raised by proof of extrinsic facts, but it is insisted that a patent ambiguity does exist, which may be explained under sections 2421 and 3748 of the Code. It is certain that there is a class of patent ambiguities which may be explained at common law by proof of extrinsic facts: See Cowan & Hill’s Notes to Phillips on Evidence, note 269, page 311,3d Edition. Another class, however, which Lord Bacon styles ambiguitas patens, it is said, cannot be so explained. “ An ambuiguity is patent in this sense, when the mere perusal of the instrument shows plainly that something more must be added before the reader can determine which of several things is meant by itlb. If any ambiguity is apparent in this will, it must be of this last mentioned class, and could not, if the rule quoted be correct, be explained at common law by parol evidence, but would, perhaps, be explainable, if explanation were possible, by such evidence under the sections of the Code relied on. In order to make those sections applicable in cases of patent ambiguities, the perusal of the instrument must “plainly show” the existence of the ambiguity. Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est. “ The general rule,” observes a learned Judge, “I take to be, that where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of these words to claimants under the instrument, or the subject matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and that, in such case, evidence dehors the instrument for the purpose of explaining it accord[464]*464ing to the surmised or alleged intention of the parties to the instrument, is utterly inadmissibleTindal, Chief Justice, in Shore vs. Wilson, 5 Scott N. R., 1037; see, also, Doe vs. Westlake, 4 B. & A., 57.
But it is said that the dissent of Judge McCay from the interpretation put upon this will by a majority of the Court when it was once before under review, shows that there is an ambiguity existing in the clause under consideration. No one entertains a higher opinion of the legal acumen of my learned colleague than myself; but, as I understand the rule, I must gather the ambiguity from a perusal of the' instrument, not from the opinion of others, however learned in the interpretation of instruments they may be. The ambiguity must be apparent to my own mind: Bremriel vs. Prothen, 3 Vesey, 113. As I read the instrument, it not only fails to show plainly an ambiguity, but fails to raise a doubt as to the proper interpretation to be placed upon the words of that part of the will under review. There are some parts of this will which do seem ambiguous — the meaning of the testator in using the words, “ restrictions and regulations,” in the third item of the will, for example. But it is not contended that those parts of the will in any way affect the question in issue in this case Hence, whatever ambiguity may exist as to their meaning, cannot be used to admit evidence to contradict the plain meaning of those parts of the will upon the construction of which the case turns. As I understand the law, however well satisfied I might be of an intention on the part of the testator different from that expressed in the first item of the codicil, yet, under section 2420 of the Code, I would be constrained to give effect to the clause as it stands. I concede that in interpreting a will, the whole must be taken together, and that the scheme of the will proper seems to be to confer a life-estate on the children of the testator — certainly upon John Micajah. But the codicil alters this, and bequeaths “ all my claim, title and interest to and in the town of Montezuma, and the parcel of land connected therewith,” to John Micajah. In this property the testator held an individual moiety in fee simple. If [465]*465he gave all his title and interest, he gave the fee. It is not contended that any well founded ambiguity can arise out of language so plain; but it is said that, viewing the will and codicil together, it is apparent that only a life-estate is intended to be given to John Micajah, or, at least, a doubt is raised as to what quantum of estate the testator meant to give by the codicil, and that, therefore, an ambiguity exists, which, under the sections of the Code referred to, will let in parol evidence to explain it. My understanding of the sections of the Code in question is, that they were not intended to admit parol evidence in every case where the astuteness of counsel can suggest a doubt, but only to admit such evidence as an auxiliary where the rules of construction, as understood before the passage of the Code, failed to enlighten the Court as to the meaning of the instrument, and this, whether the ambiguity was latent or patent.
'Viewing this will and codicil as a whole, is there a patent ambiguity plainly apparent as to what interest John Micajah takes under the first clause of the codicil ? The first item of the will gives a life-estate, clearly, to John Micajah in the property therein bequeathed, and restrains alienation. The third item, possibly, makes the same provision as to the property bequeathed to the other children. The sixth item provides for a division of the proceeds of the land laid out for the town of Montezuma among all of testator’s children. This is the same property which, in the first item of the codicil, is substituted for the life-estate given to John Micajah by the first item of the will; and it is to be noted, that the character of this property is such that any restriction upon its free alienation would, in great measure, destroy its value. The lots of a newly laid out town should be unencumbered as much as possible, and pass freely from hand to hand, to induce persons to buy and build upon them. The testator, “desiring to change some of the provisions of said will,” afterwards makes a codicil, and gives the Montezuma land to John Micajah, by words that certainly convey the fee, unless restrained by the general scope of the will to a less estate. But, as it appears [466]*466to me, the whole scheme of the will, by which the testator’s children were to take life-estates in their respective shares, with a restraint on Alienation, (conceding that such is the scheme of the will as to all the children,) is abandoned and a trustee for the first time appointed, by the third item of the codicil, whose consent to alienation is substituted for the life-estate and restriction contained in the will.
In Doe ex dem, Child vs. Wright, 8 T. R., 64, the testator gave “all my lands in the county of Essex” to his grandson, and also, “all my estate in Ellington” to the same grandson. He had previously devised a life-estate in the same lands to his wife. In almost all the other clauses the testator used the word “ estate,” which is sufficient to pass a fee. The devise to the grandson referred to was all under one item. It was argued that considering the whole will together, it appeared to be the devisor’s intention to give an estate in fee to his grandson in the Essex lands.
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Montgomery, Judge.
The only question necessary to be considered in this case is, are the instructions of the testator to the scrivener who drew his will admissible to explain his intention ? It is only upon the assumption that there is an ambiguity in the will, that these instructions are sought to be admitted. It is not pretended that any latent ambiguity has been raised by proof of extrinsic facts, but it is insisted that a patent ambiguity does exist, which may be explained under sections 2421 and 3748 of the Code. It is certain that there is a class of patent ambiguities which may be explained at common law by proof of extrinsic facts: See Cowan & Hill’s Notes to Phillips on Evidence, note 269, page 311,3d Edition. Another class, however, which Lord Bacon styles ambiguitas patens, it is said, cannot be so explained. “ An ambuiguity is patent in this sense, when the mere perusal of the instrument shows plainly that something more must be added before the reader can determine which of several things is meant by itlb. If any ambiguity is apparent in this will, it must be of this last mentioned class, and could not, if the rule quoted be correct, be explained at common law by parol evidence, but would, perhaps, be explainable, if explanation were possible, by such evidence under the sections of the Code relied on. In order to make those sections applicable in cases of patent ambiguities, the perusal of the instrument must “plainly show” the existence of the ambiguity. Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est. “ The general rule,” observes a learned Judge, “I take to be, that where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of these words to claimants under the instrument, or the subject matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and that, in such case, evidence dehors the instrument for the purpose of explaining it accord[464]*464ing to the surmised or alleged intention of the parties to the instrument, is utterly inadmissibleTindal, Chief Justice, in Shore vs. Wilson, 5 Scott N. R., 1037; see, also, Doe vs. Westlake, 4 B. & A., 57.
But it is said that the dissent of Judge McCay from the interpretation put upon this will by a majority of the Court when it was once before under review, shows that there is an ambiguity existing in the clause under consideration. No one entertains a higher opinion of the legal acumen of my learned colleague than myself; but, as I understand the rule, I must gather the ambiguity from a perusal of the' instrument, not from the opinion of others, however learned in the interpretation of instruments they may be. The ambiguity must be apparent to my own mind: Bremriel vs. Prothen, 3 Vesey, 113. As I read the instrument, it not only fails to show plainly an ambiguity, but fails to raise a doubt as to the proper interpretation to be placed upon the words of that part of the will under review. There are some parts of this will which do seem ambiguous — the meaning of the testator in using the words, “ restrictions and regulations,” in the third item of the will, for example. But it is not contended that those parts of the will in any way affect the question in issue in this case Hence, whatever ambiguity may exist as to their meaning, cannot be used to admit evidence to contradict the plain meaning of those parts of the will upon the construction of which the case turns. As I understand the law, however well satisfied I might be of an intention on the part of the testator different from that expressed in the first item of the codicil, yet, under section 2420 of the Code, I would be constrained to give effect to the clause as it stands. I concede that in interpreting a will, the whole must be taken together, and that the scheme of the will proper seems to be to confer a life-estate on the children of the testator — certainly upon John Micajah. But the codicil alters this, and bequeaths “ all my claim, title and interest to and in the town of Montezuma, and the parcel of land connected therewith,” to John Micajah. In this property the testator held an individual moiety in fee simple. If [465]*465he gave all his title and interest, he gave the fee. It is not contended that any well founded ambiguity can arise out of language so plain; but it is said that, viewing the will and codicil together, it is apparent that only a life-estate is intended to be given to John Micajah, or, at least, a doubt is raised as to what quantum of estate the testator meant to give by the codicil, and that, therefore, an ambiguity exists, which, under the sections of the Code referred to, will let in parol evidence to explain it. My understanding of the sections of the Code in question is, that they were not intended to admit parol evidence in every case where the astuteness of counsel can suggest a doubt, but only to admit such evidence as an auxiliary where the rules of construction, as understood before the passage of the Code, failed to enlighten the Court as to the meaning of the instrument, and this, whether the ambiguity was latent or patent.
'Viewing this will and codicil as a whole, is there a patent ambiguity plainly apparent as to what interest John Micajah takes under the first clause of the codicil ? The first item of the will gives a life-estate, clearly, to John Micajah in the property therein bequeathed, and restrains alienation. The third item, possibly, makes the same provision as to the property bequeathed to the other children. The sixth item provides for a division of the proceeds of the land laid out for the town of Montezuma among all of testator’s children. This is the same property which, in the first item of the codicil, is substituted for the life-estate given to John Micajah by the first item of the will; and it is to be noted, that the character of this property is such that any restriction upon its free alienation would, in great measure, destroy its value. The lots of a newly laid out town should be unencumbered as much as possible, and pass freely from hand to hand, to induce persons to buy and build upon them. The testator, “desiring to change some of the provisions of said will,” afterwards makes a codicil, and gives the Montezuma land to John Micajah, by words that certainly convey the fee, unless restrained by the general scope of the will to a less estate. But, as it appears [466]*466to me, the whole scheme of the will, by which the testator’s children were to take life-estates in their respective shares, with a restraint on Alienation, (conceding that such is the scheme of the will as to all the children,) is abandoned and a trustee for the first time appointed, by the third item of the codicil, whose consent to alienation is substituted for the life-estate and restriction contained in the will.
In Doe ex dem, Child vs. Wright, 8 T. R., 64, the testator gave “all my lands in the county of Essex” to his grandson, and also, “all my estate in Ellington” to the same grandson. He had previously devised a life-estate in the same lands to his wife. In almost all the other clauses the testator used the word “ estate,” which is sufficient to pass a fee. The devise to the grandson referred to was all under one item. It was argued that considering the whole will together, it appeared to be the devisor’s intention to give an estate in fee to his grandson in the Essex lands. The Court, declining to hear from the other side, held that only a life-estate passed as to those lands, though it was conceded that the grandson took a fee in the Ellington lands. In the case at bar, a life-estate is given by the will — a fee, by the words of the codicil; and the same argument is used in favor of a conveyance of a life-estate by the codicil, (or, rather, in favor of an ambiguity as to what, estate was intended to be given,) that was there relied on to sustain a devise of the fee. The Court there were not sufficiently doubtful as 'to desire to hear from the other side. Which is the stronger case ? See, also, Doe ex dem, Ellam vs. Westley, 4 Barn. and Cress, 667, where Abbott, Chief Justice, says: “I think that our safest course is to consider the two distinct sections of this will as making two distinct devises.” And Bay ley, Judge, adds, “it is an old observation that the introduction of the word Item’ shows that the testator is dealing with a new subject, and that the words following apply to that only, and not to the preceding matter, unless the intention that they should do so is plain.” The reason is stronger why the words of a will should not be held to apply to a codicil, “ unless the intention that they should [467]*467do so is plain.” It is only by applying the words of this will to-the codicil that any argument can be made as to the existence of an ambiguity. A subsequent clause of limitation, as to one subject of devise, cannot be governed by words of introduction, which, though clear, are not connected with, and plainly applicable to that particular subject: Nash vs. Smith, 17 Ves., 33; Doe vs. Clayton, 8 East, 144; Denn vs. Gaskin, Cowp., 661.
Where a patent ambiguity does exist, we have seen that the general rule is said to be that parol evidence is inadmissible to explain it. But that rule, it is also said, must be received with this qualification, viz: “ That extrinsic evidence is unquestionably admissible for the purpose of showing that the uncertainty, which appears on the face of the instrument, does not in fact, exist, and that the intent of the party, though uncertainly and ambiguously expressed, may yet be ascertained by proof of facts to such a degree of certainty as to allow of the intent being carried into effect. In cases falling, within the scope of this remark, the evidence is received, not for the purpose of proving the testator’s intention, but of explaining the words he has used: ” Brown’s Legal Maxims, 472. Again, it is an elementary principle that claimants under the will have' a right to ask the Court of construction to place itself, as nearly as may be, in the position of the testator at the time he executed the will, by proof of his surroundings.
Taking these rules as a guide, and- excluding the declarations of the testator for the present, what kind of extrinsic evidence is inadmissible to explain a patent ambiguity ? It is difficult to answer this question. Had not the general rule been so long established as to become a maxim, that extrinsic evidence is inadmissible to explain a patent ambiguity, I would say, still leaving out of view the declarations of testator, that in all cases of patent ambiguity extrinsic facts are admissible to explain the ambiguity, where it is of a nature that is capable of such explanation. Mr. Phillips seems to entertain this idea, for he says, “some ambiguities apparent in an instrument do not admit of the application of extrinsic evidence, [468]*468and are utterly incurable, and render the instrument void and of this class he says, are the instances given by Lord Bacon, which Mr. Phillips calls ambiguities or uncertainties in the limitations of estates: 2 Phil. Ev., 312. Proof of extrinsic facts could scarcely help such a case.
As an instance of a patent ambiguity which is said not to be capable of explanation by parol, a legacy to one of the sons of J. S., is usually given. But if it is shown by extrinsic evidence that J. S., had but one .son, and the testator knew it, the son would take: Ibid. . “ On the other handj*’ Mr. Phillips continues, “there are cases of apparent ambiguity which do admit of explanation by matter of fact, and in which the Court will give effect to the intention of the party consistently with the words used in the instrument.” Ibid. An examination of many of the authorities (all to which I had aocess) referred to as sustaining the rule that extrinsic evidence is inadmisible to explain patent ambiguities in a will, shows that the evidence rejected was the declarations of the testator as to what he meant: See Cowan & Hill’s Notes to Phil. Ev., part 2, number 271. These stand upon a very different footing from extrinsic facts, as will be presently shown.
Mr. Wigram, in his treatise upon the admission of extrinsic evidence in aid of the interpretation of wills, excludes altogether the distinction between latent and patent ambiguities as a guide. He lays it down that for the purpose of determining the object of the testator’s bounty, or the subjects of disposition, or the quantity of interest intended to be conveyed by the will, a Court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs: Wigram’s Extr. Ev., page 7, 51.
Is not this the correct rule whether the ambiguity be latent or patent? And do the sections of our Code do anything more than establish this as the rule in Georgia, in order to settle the question with us in view of the nice distinctions and [469]*469refinements, not to say confusion, to be found in the books upon this subject?
The admission of the declarations of the testator to explain an ambiguity, however, is quite a different thing from the proof of extrinsic facts for that purpose, and has been uniformity refused, at least in England, since the case of Hiscocks vs. Hiscocks, 5 M & W., 363, (see Doe ex dem. Allen vs. Allen, 12 A. & E., 451,) except in a single class of cases, to-wit: where the meaning of the testator’s words is neither ambigú-, ous nor obscure, and where the devise is on the face of it perfect and intelligible, but from some of the circumstances admitted in proof an ambiguity arises, as to which of the two or more things, or which of the two or more persons (each answering the words of the will) the testator intended to express. Here arises what Lord Bacon calls an equivocation, and the declarations of the testator are admitted to show which of the, two things or persons, each equally answering 'the description in the will, is meant. The principle above quoted confines the admission of such evidence to the case of a latent ambiguity. But in the case of Doe ex dem. Gord vs. Needs, 2 M. & W., 129, precisely the same ambiguity arose, with the addition that the ambiguity appeared in the will itself; two persons of the same name having been mentioned as legatees in the former part of the will, but there sufficiently distinguished by the names of their fathers, whereas in the clause under which the controversy arose, one of them was again named as legatee, and no indication given as to which of the two was meant. The declarations of the testator were admitted to show which of the two he intended: Doe ex dem. Morgan vs. Morgan, 1 C. & M., 255, is to the same effect.
But no;extrinsic evidence, much less the declarations of the testator, will be received to introduce new words and a new description into the body of the will itself: Miller vs. Travers, 8 Bing., 244. And that is what is attempted here — to introduce new words and a new description of the estate which John Micajah takes, reducing it from a fee to a life-estate. To permit such evidence, would overturn the statute of frauds, [470]*470and again open the door to all the evils that that law was intended to prevent. I cannot think that the Legislature meant to give such scope to the sections of the Code, relied on by the plaintiff in error. Indeed, they must be read in connection with section 2379, re-enacting in substance the statute of frauds, and so construed as not to emasculate that law. Upon the whole, I am of opinion that no patent ambiguity exists in this codicil as to the estate which John Micajah takes, and no .latent one has been raised by proof of extrinsic facts — much less does such an ambiguity exist as would render the instructions of-the testator to the scrivener who drew the will competent evidence to explain it.
The question as to the admissibility of the declarations of the testator to rebut a resulting trust, or to repel the presumption against double portions, or to show a revocation by explaining acts done to that end, or where they are part of the res gestee, or on an issue of insanity, is not here involved.
Judgment affirmed.