S. B. Strong, J.
This is an action for the partition of a tract of land known as the Cow Neck farm, in the town and county of Westchester, between the plaintiffs and defendants and other owners who, or whose interests, are unknown. One Taiman Pugsley was at the time of his death seised in fee simple absolute of the farm, which he had purchased from Stephen Leggett. Taiman Pugsley died intestate, and the land thereupon descended to his sons, Isaac L. Pugsley and Oakley Pugsley, who were his only heirs at Taw. Isaac L. Pugsley died intestate and without descendants, in the lifetime of his brother, and his half of the farm descended to Oakley Pugsley, who thereupon became and continued to be until the time of his death, seised in fee of the whole of it. Oakley Pugsley made [295]*295a will containing with other provisions the following consecutive clauses:
“ First. After all my lawful debts are paid and discharged, I give and bequeath unto William Pugsley, Samuel Pugsley, Benjamin Pugsley and James Pugsley, sons of Samuel Pugsley of North Salem, all my household furniture, farming utensils, and what stock I have on the farm where I now reside.
I also give and bequeath unto William, son of James Pugsley of Ossining, my large silver tankard, also eighteeen silver spoons'—nine large ones, and nine small ones— also four silver watches and sugar tongs.
I do give and devise unto Samuel Pugsley, William Pugsley and James Pugsley, near Cayuga lake in this state, the farm where I now reside, in the town of Westchester aforesaid, containing about one hundred and sixty acres, called the Cow Neck farm.
I do also give and devise unto the said last named Samuel, William, Benjamin and James, two houses and lots: One of said houses is numbered (31) thirty-one Hester street, and the other, No. 14 Norfolk street, in the city of New York; also one house and lot number 353 Division street.”
The will, after specifying several intermediate devises and bequests, contains the following clause:
“ I do also give unto William Pugsley, Samuel Pugsley, Benjamin Pugsley and James Pugsley, sons of Samuel Pugsley, of North Salem, Westchester county, the personal property aforesaid, and no more.”
There was a codicil to the will, but it had no reference to the Cow Neck farm, nor did it contain any provision affecting the questions involved in this action. There was no residuary devise. The testator died in 1853, leaving his will and codicil in full force, and they were subsequently duly proved before the surrogate of the county of Westchester. He had not at the time of his death any living ancestor, nor any descendant, brother or sister, or any descendant of a brother or sister. His heirs at law were the descendants of the brothers and sister of his father, Taiman Pugsley, and of the brothers and sisters of his mother, whose maiden name was Sarah Oakley. The [296]*296nearer heirs on each side were his first cousins. Several of his former first cousins had died, some without, and others leaving descendants.
The action was referred, for the purpose of ascertaining the facts, and those which I have stated were proved before the referee, and reported by him, together with his conclusions on various questions of law. One of his conclusions is that, as well from the .parts of the will which I have quoted as from the extrinsic evidence which he received, the testator intended to, and did, in effect, devise a portion of the farm in question to his cousin Benjamin Pugsley, who is one of the defendants in this suit, and claims such interest. The counsel for several of the other parties objected to the admission of the parol evidence and excepted to the conclusion adopted by the referee. The questions resulting from this action of the learned referee are important, and were discussed by the counsel who appeared before me, with great ability.
There is no obscurity in the devise itself, nor in its application. The farm is accurately designated, and the three devisees are appropriately named. There may be some doubt whether the testator did not intend to give the farm to the three devisees named and Benjamin Pugsley, from the bequest to the four of the household furniture, farming utensils and stock on it, and from the phraseology of the clause next following the devise in question, in which he says : “I do also give and devise unto the said last named Samuel, William, Benjamin and James” three houses and lots in the city of Hew York. It is certainly singular that the testator should have given the farm to three of his cousins, and the furniture, stock and utensils on it to the three and another person, and it raises an inference that there must have" been some mistake ; but neither of the provisions would indicate in which of them the mistake was made. The presumption would seem to be that the greater accuracy would qualify the more important gift of the real estate. Then as to the words in the succeeding clause “ the said last named,” they certainly raise a presumption that the four were named together in what immediately precedes it. That is weakened, [297]*297however, by the consideration that the expressions “last named” were necessary to designate Samuel, James and William, as other persons having the same names had been previously mentioned. The epithets may have been designed for them only, as they were unnecessary for Benjamin, who was the only person of that name mentioned in the will. Whatever ambiguity existed, however, was apparent from the face of the will: and the general rule in such cases is that it is not susceptible of explanation from extrinsic, parol evidence. The will must then be its own expounder. Lord Bacon, after stating in his 28d rule the maxim, “ ambiguitas verborurn latens verifications supple tur ; nam quod ex facto oritur ambiguum verifications facti tollitur,” observes, “ There be two sorts of ambiguities of words : the one is ambiguitas patens and the other latens. Pa-tens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument ; but there is some collateral matter out of the deed that breedeth the ambiguity.
“ Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averments, and so, in effect, that to pass without deed, which the law appointeth shall not pass but by deed.” It is apparent from those considerations that an obscurity purely instrumental cannot be explained by parol .evidence. If that is so great that it cannot be discovered with reasonable probability who, or what is meant by the testator, the provision is deemed insensible, and the proposed gift must fail altogether. External evidence is necessary, and always admissible, to identify the person or thing sufficiently described to make the devise or bequest effectual. If that points to but one object, or to but one individual clearly designated in the will, that controls. No evidence can then be received that any other person or thing was intended. But if the extrinsic evidence for identification produces uncertainty as [298]*298to either, that may be removed or explained by other testimony. The difficulty may be removed by the same instrumentality by which it is produced.
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S. B. Strong, J.
This is an action for the partition of a tract of land known as the Cow Neck farm, in the town and county of Westchester, between the plaintiffs and defendants and other owners who, or whose interests, are unknown. One Taiman Pugsley was at the time of his death seised in fee simple absolute of the farm, which he had purchased from Stephen Leggett. Taiman Pugsley died intestate, and the land thereupon descended to his sons, Isaac L. Pugsley and Oakley Pugsley, who were his only heirs at Taw. Isaac L. Pugsley died intestate and without descendants, in the lifetime of his brother, and his half of the farm descended to Oakley Pugsley, who thereupon became and continued to be until the time of his death, seised in fee of the whole of it. Oakley Pugsley made [295]*295a will containing with other provisions the following consecutive clauses:
“ First. After all my lawful debts are paid and discharged, I give and bequeath unto William Pugsley, Samuel Pugsley, Benjamin Pugsley and James Pugsley, sons of Samuel Pugsley of North Salem, all my household furniture, farming utensils, and what stock I have on the farm where I now reside.
I also give and bequeath unto William, son of James Pugsley of Ossining, my large silver tankard, also eighteeen silver spoons'—nine large ones, and nine small ones— also four silver watches and sugar tongs.
I do give and devise unto Samuel Pugsley, William Pugsley and James Pugsley, near Cayuga lake in this state, the farm where I now reside, in the town of Westchester aforesaid, containing about one hundred and sixty acres, called the Cow Neck farm.
I do also give and devise unto the said last named Samuel, William, Benjamin and James, two houses and lots: One of said houses is numbered (31) thirty-one Hester street, and the other, No. 14 Norfolk street, in the city of New York; also one house and lot number 353 Division street.”
The will, after specifying several intermediate devises and bequests, contains the following clause:
“ I do also give unto William Pugsley, Samuel Pugsley, Benjamin Pugsley and James Pugsley, sons of Samuel Pugsley, of North Salem, Westchester county, the personal property aforesaid, and no more.”
There was a codicil to the will, but it had no reference to the Cow Neck farm, nor did it contain any provision affecting the questions involved in this action. There was no residuary devise. The testator died in 1853, leaving his will and codicil in full force, and they were subsequently duly proved before the surrogate of the county of Westchester. He had not at the time of his death any living ancestor, nor any descendant, brother or sister, or any descendant of a brother or sister. His heirs at law were the descendants of the brothers and sister of his father, Taiman Pugsley, and of the brothers and sisters of his mother, whose maiden name was Sarah Oakley. The [296]*296nearer heirs on each side were his first cousins. Several of his former first cousins had died, some without, and others leaving descendants.
The action was referred, for the purpose of ascertaining the facts, and those which I have stated were proved before the referee, and reported by him, together with his conclusions on various questions of law. One of his conclusions is that, as well from the .parts of the will which I have quoted as from the extrinsic evidence which he received, the testator intended to, and did, in effect, devise a portion of the farm in question to his cousin Benjamin Pugsley, who is one of the defendants in this suit, and claims such interest. The counsel for several of the other parties objected to the admission of the parol evidence and excepted to the conclusion adopted by the referee. The questions resulting from this action of the learned referee are important, and were discussed by the counsel who appeared before me, with great ability.
There is no obscurity in the devise itself, nor in its application. The farm is accurately designated, and the three devisees are appropriately named. There may be some doubt whether the testator did not intend to give the farm to the three devisees named and Benjamin Pugsley, from the bequest to the four of the household furniture, farming utensils and stock on it, and from the phraseology of the clause next following the devise in question, in which he says : “I do also give and devise unto the said last named Samuel, William, Benjamin and James” three houses and lots in the city of Hew York. It is certainly singular that the testator should have given the farm to three of his cousins, and the furniture, stock and utensils on it to the three and another person, and it raises an inference that there must have" been some mistake ; but neither of the provisions would indicate in which of them the mistake was made. The presumption would seem to be that the greater accuracy would qualify the more important gift of the real estate. Then as to the words in the succeeding clause “ the said last named,” they certainly raise a presumption that the four were named together in what immediately precedes it. That is weakened, [297]*297however, by the consideration that the expressions “last named” were necessary to designate Samuel, James and William, as other persons having the same names had been previously mentioned. The epithets may have been designed for them only, as they were unnecessary for Benjamin, who was the only person of that name mentioned in the will. Whatever ambiguity existed, however, was apparent from the face of the will: and the general rule in such cases is that it is not susceptible of explanation from extrinsic, parol evidence. The will must then be its own expounder. Lord Bacon, after stating in his 28d rule the maxim, “ ambiguitas verborurn latens verifications supple tur ; nam quod ex facto oritur ambiguum verifications facti tollitur,” observes, “ There be two sorts of ambiguities of words : the one is ambiguitas patens and the other latens. Pa-tens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument ; but there is some collateral matter out of the deed that breedeth the ambiguity.
“ Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averments, and so, in effect, that to pass without deed, which the law appointeth shall not pass but by deed.” It is apparent from those considerations that an obscurity purely instrumental cannot be explained by parol .evidence. If that is so great that it cannot be discovered with reasonable probability who, or what is meant by the testator, the provision is deemed insensible, and the proposed gift must fail altogether. External evidence is necessary, and always admissible, to identify the person or thing sufficiently described to make the devise or bequest effectual. If that points to but one object, or to but one individual clearly designated in the will, that controls. No evidence can then be received that any other person or thing was intended. But if the extrinsic evidence for identification produces uncertainty as [298]*298to either, that may be removed or explained by other testimony. The difficulty may be removed by the same instrumentality by which it is produced. The admissible evidence in such cases is always explanatory of person or thing, actually expressed in the will. No parol evidence can be received to prove an additional or different subject matter, or some other donee. If that should be allowable, the will would be partly in writing and partly by parol, and as to the latter, it would be without any of those solemnities which our statutes wisely require to render it effectual. Much of the evidence adduced before the referee went to show the intention of the testator, as evinced' by his declarations at different times, and his instructions when the will was drawn to include Benjamin Pugsley among the devisees of the Cow Neck farm. It is undoubtedly desirable that the intentions of a testator should prevail, so far. as they can do so consistently with conservative rules. But it is very essential that there should be an intimation of the intent in the will, and that the proof should be confined to what is expressed. In other words, that such proof should be strictly explanatory. There can be but little danger in allowing explanations of what is written, but it would be hazardous in the extreme to permit alterations or additions to be made from the uncertain recollections of witnesses, and particularly in reference to such evanescent matters as conversations. The parol evidence before the referee in this case was inadmissible,, first, because it was designed to explain a patent ambiguity ; and secondly, because it would, if it could have any effect, create a new devise.
If Benjamin Pugsley took any interest in the premises, under the will, it must have been by implication. That is a question of law which could not be elucidated by any extrinsic evidence as to the intention of the testator, nor justify its admission. As to that, what is stated in the instrument must control. The rule in such cases is well expressed by Mr. Jarman in a note to. Powell on Devises, (Vol. 1, p. 336,) as follows: “ that if a testator unequivocally refer to a disposition as made in that his will which in fact he has not made, the court will regard it as an inadvertent omission, and will [299]*299accordingly supply it.” In this case the testator does not unequivocally, or at all, refer to a disposition in favor of Benjamin Pugsley of any part of the farm in question, as actually made. The language used by him simply raises a conjecture that he may have supposed that he had included his name as one of the devisees, but it is too remote either to alter the estate expressly given to others, or to confer any upon him. My opinion is, that Benjamin Pugsley took no part of the Cow Heck farm, under the will.
The referee states that William Pugsley, one of the proposed devisees, died before the will was made, and that Samuel Pugsley," another of such devisees, died in the intermediate time between the date of the will and the death of the testator, and he correctly concludes that the devise to Samuel lapsed. I do not agree with him, however, that in consequence of such premature death of William, the devise must be read as if his name had been omitted, and as giving the entire estate to the others. That would have been the rule had the devise been to . <S a class, m general terms, without any further designation, such as children, brothers, or sisters of a particular individual, although it should contain a less number than what was expressed by the testator at the time. That is well, and no doubt correctly settled. The fair inference in such cases is, that the testator intended to give the entirety to those who might come within the designation, whatever might be the number; and indeed the application would be precisely according to the terms and effect of the language. The same rule prevails where the devise is to several as joint tenants. But the rule is different where, as in this case, the devise is to several nominatim, and in effect as tenants in common. Then the gift is of a specific portion to each, and if that intended for either fails in consequence of his earlier decease, it descends to the (Creswell v. Cheslyn, 3 Bro. P. C. 240, 2d ed. 123.) The rule is that the heir always takes what is not effectually devised to others. ( Wright v. Hall, Fort. 182. 8. C. under the title of Wright v. Horne, 8 Mod. 224. Roe v. Flood, Fort. 184.) I must therefore decide that James Pugsley, the [300]*300only surviving devisee named in the will, took thereby only the one-third part of the Cow Neck farm. The referee came to that conclusion, although for a different reason.
I agree with the referee that the remaining two-third parts of the premises descended to the heirs at law of the testator, and that one of those third parts descended to the descendants of the brothers and sisters of his father. Clearly as to such third the inheritance came to him on the part of his father. But as to the remaining third part, being the half of what was not (as it turned out) effectually devised, that did not come to the testator on the part of his father, but it came to him from his brother. Property may be said to come to one on the part of his father, when it descended directly from the father, or through him, as a medium; but certainly not where it came to him by descent immediately from another. Thus, if the property descended from any blood relative of the father more remote than the brother of the propositus, it must come through the father as a medium, and it is on his part. But the descent from brother to brother is, by the rule of the common law, considered to be immediate, that is, from one directly to the other, and not through, or on the part of, the father. (Collingwood v. Paca, 1 Ventr. 413.) The rule was recognized as existing in this state, by Chief Justice Savage, in Jackson v. Green, (7 Wend. 333.) The learned chief justice in that case. (p. 338,) quotes as law the opinion of Lord Hale, that collateral descent from brother to brother is immediate, taking no notice of the father ; and he adds, “ Hence one brother may inherit from another, though the father be an alien, or attainted.” The reason of this peculiar rule is not very obvious, but with our endorsement of the common law it must prevail until it shall be (if ever) repealed. Under that rule I must decide that the one-third part of the farm in question, being the half of what did not pass under the will, descended to both the paternal and maternal collateral relatives of the testator.
It was insisted by one of the counsel, on the argument, that whatever descended to the children or other descendants of the uncles and aunts should be divided into as many shares as there [301]*301were uncles and aunts who had left descendants living at the death of Oakley Pugsley, and that the descendants of each should take what would have been inherited by his ancestor if living. I do not so construe our statute of descents, (1 R. S. 751.) By the 7th section it is provided that where the descent is to collateral relatives all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from the intestate the common degree of consanguinity may be. As in this ease all the uncles and aunts died in the lifetime of the (partially) intestate, his nearest surviving relatives were his first cousins, and if all his first cousins had survived him they would have inherited equal parts of what descended to them respectively. But as several of them had previously died, the question arises whether the cousins must not be assumed as the stock, and the inheritance be divided into as many equal shares as there were first cousins living, or who had died leaving descendants. My opinion is that such is the division required by our canons of descent. The 8th section of our statute of descents provides that where the descent is to brothers and sisters, and the descendants of any of them who may have died, each living brother and sister shall inherit the share which would have descended to him or her had all the brothers and sisters who shall have died leaving issue been living, and so that such descendants shall inherit the share which their parent would have received if living. The 9th section directs that the same law of inheritance prescribed in the preceding section shall prevail as to the other direct lineal descendants of any brother and sister of the intestate to the remotest degree, whenever such descendants are of unequal degree. Taking the 7th, 8th and 9th sections together, the rule is established that where the inheritance descends to or through brothers or sisters, or both, the primary division shall be made between the nearer surviving relatives and the descendants of those of the same degree who may have died, so that the descendants of each shall collectively take the share which would have fallen to their ancestor had he or she been living. That makes the two canons, one relating to descendants (sections 3 and 4) and the other to [302]*302collateral relatives, substantially the same. The 10th section of the same statute provides that when the inheritance shall be to or through the brothers and sisters of the father, whether all of them shall be living, or some of them shall be living and others shall have died leaving descendants, or all of them shall have died, all, any or either of them leaving descendants, the inheritance shall descend in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate; and the 13th section directs that when the inheritance shall descend to or through the brothers and sisters both of the father and mother, it shall go to such brothers and sisters in equal shares, and to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate^ The directions as to the division between the nearer living collateral relatives and the descendants of the dead of the same degree, are not as specific as those in reference to the descendants of the intestate, but it is evident that it was designed to make the rules homogeneous, and there is sufficient in the statute to effectuate such intent. My conclusion is that the division in this case must be made according to the indicated interpretation of our canons of descent.
The four plaintiffs are seised in fee under the conveyance to them from James Pugsley, son of Samuel Pugsley, and from James Underhill, of the undivided portions of the Cow Neck farm to which the former was entitled as one of the devisees and also as one of the heirs at law of Oakley Pugsley, and the latter as one of such heirs, and the plaintiffs Hyatt and Cobb are in addition seised in fee under a conveyance to them from Isaac Pugsley, another heir of Oakley Pugsley, of the share which had descended to him at the time of such conveyance. It is impossible to ascertain from the report of the referee the precise interest which each or any of the heirs of Oakley Pugsley took, as such, in the premises in question. It is necessary, as I conceive, that the estate of each known owner, or of the defendants or some of them, collectively when their rights between each other are disputed, (Phelps v. Green, 3 John. Ch. 302,) should be stated in the judgment. There can be no objection to a [303]*303statement that certain definite portions belong, collectively, to owners who are unknown. They maybe described in general terms, as the descendants of a person deceased. In the instance of unknown owners, however, the statute requires a direct allegation in the complaint that they are unknown, and also the publication of a notice to them. (2 R. S. 319, § 12; 329, § 84.) The averment in the complaint in this action that there are certain unknown owners, although their exact interests are not specified, may be sufficient to authorize the subsequent proceedings as to them, and a judgment to be entered which shall bind their interest, if the requisite notice has been published. If no such notice has been published, it may yet be done, and the subsequent proceedings must be readopted. The plaintiffs cannot, as they have attempted in their complaint, call on the devisees who are known and named by them, to answer in behalf of, or in any manner to represent, the heirs at law of their deceased relative, who are unknown.
[Kings Special Term,
December 2, 1856.
The case must go back to the referee to ascertain and report the precise interest of each plaintiff, and also, so far as it can be ascertained, of each other known owner, and also of the unknown owners, or of each class of those who are wholly or partly unknown. If from such report it shall appear that there are owners who are known but not named as parties to this action, they may be brought in as new parties, and the names of the defendants who never had, or who have not now, any interest in the premises, if it should appear from the report that there are any such, may be struck out.
The reasons given by the referee for the sale of the farm, are satisfactory. If the renewed report of the referee shall be satisfactory as to the interests of the parties and the unknown owners, and the requisite proceedings have been adopted to conclude the latter, a judgment may be entered, upon filing the report, conformable to the principles which I have indicated, and for a sale of the premises by Galvin Frost, Esq. who has been selected by the parties as a referee for that purpose.
Further directions will of course be given, if necessary.
S. B. Strong, Justice.]