[119]*119The opinion of the court was delivered by
Hall, J.
Several objections are made to the judgment of the county court.
1. It is said, that there are no devising words in the will to Peggy Nason, in regard to her living in the house; that the language of the testator is to be construed as matter of advice to John Nason to permit her to live there; and that she consequently took no absolute interest or right in the house by the will.
This objection, we think, ought not to prevail. We should be inclined to construe the will as a direct devise to her of a right to all the privileges in the house, that she had before enjoyed. But whether the previous words “give and grant” are to be connected with the devise to her, or her right is to be raised by implication, is quite immaterial. To whichever class of devises the gift to her is referred, we think the intent of the testator, that she should have a right in the house, is quite plain. The legacy to her of a particular horse, owned by the testator, immediately precedes, and that of a cow immediately follows, this devise, in the same sentence; and if the devise is a mere recommendation, the legacies must also be the same. To hold, that she acquired no right to these articles by the will, would be such a violation of the manifest intent of the testator, as to appear quite absurd. We have no doubt, from the language of the will, that the testator designed to make an absolute devise to her, — that it was his intention, that what was before a privilege, subject to his will as her father, should be the measure of a right, which she should enjoy after his decease.
2. It is objected, that parol evidence is inadmissible, to show the extent of the privilege, which the devisee had enjoyed in the house1 of her father previous to his death, for the purpose of giving effect to the devise.
It is undoubtedly true, that parol evidence is inadmissible to prove the intention of the testator, as an independent fact; for that would be making a will for him, without writing; but it has always been held, that the circumstances surrounding a testator at the time of the execution of his will may be given in evidence, to identify the-property, upon which the will was designed to operate, and to give-effect to the words of it. It was conceded in the argument, that extrinsic evidence, to show the quantity of interest of the testator [120]*120in an estate intended to be devised, might be admissible; but it is urged, that the quantity of interest intended to be devised, when it is to be carved out of a greater interest in the testator, is of a different character; and that evidence of such interest is not admissible.
This distinction is almost too nice, to be intelligibly stated; and we are unable to discover any ground for it, either in reason, or from authority. If the testator’s devisable interest in the house, in this case, had been only such as he had previously enjoyed, and he had devised it to his daughter, describing it as such, the objection concedes, that the quantity of his interest might have been shown by parol. It is difficult to conceive, why the extent of a like interest, stated to be in another, could not be shown and measured in the same manner. One of the seven general propositions, upon the correctness of which the clear and able work of Wigram on Wills is based, declares, that, for the purpose of identifying the thing intended by the testator, and of determining the quantity of interest, which is given by his will, parol evidence is admissible as to every material fact relating to the property, which is claimed as the subject of disposition; and the authorities cited by him appear fully to sustain the proposition. No such distinction, as that contended for, is made, or intimated, by this writer, or any other that has been cited.
3. It is next insisted, that, even with the aid of parol testimony, the devise to the defendant is to be treated as void for uncertainty.
It is true, that the language of a testator, in attempting to make a devise, may be so confused, or ambiguous, as to render it impracticable, even by a knowledge of the surrounding circumstances, to determine what he intended; and in such case the devise must, from necessity, be held void for uncertainty. A common case, mentioned in the books, of a gift void for uncertainty in the designation of the quantity intended to be given is that of a bequest by the testator of “ some of his best linen.” It being impossible to determine, how much of his linen the testator intended, the bequest must fall for uncertainty. But if, instead of some of his best linen, the testator had said, he gave to A. the same quantity of his best linen, that he had before delivered over to B., a rule for determining the quantity bequeathed would have been furnished. The intention of the testator, in such case, would have been perfectly clear; and although [121]*121there might be great embarrassment and difficulty in determining the quantity of linen, which had been delivered to B., — so great, perhaps, that no two juries would find exactly the same quantity, — • yet this difficulty would not render the will void for uncertainty. The measure provided by the testator was certain. The uncertainty would arise for the want of sufficient proof in applying it. The legatee would be entitled only to so much linen, as he could prove had been delivered over to B. If he failed to prove any had been delivered, the bequest would fail for the want of any subject for it to operate upon, not for any uncertainty in the expressed intention of the testator.
In this case the testator has provided a certain measure of the right of Peggy Nason, the devisee. His intention is clear and unambiguous, that she should have the same right in the house, that she had before enjoyed; and if there is any difficulty in regard to the devise, it is in ascertaining, by proof, the extent of her previous enjoyment. If she had failed in proving any definite occupation, or enjoyment, the devise must have fallen for want of any thing for it to operate upon. There would have been no such property found, as that devised. But the previous privilege, which the will had changed into a right, has, by applying the measure specified in the will, been ascertained; and, being ascertained, the defendant is entitled to the benefit of it.
The case most strongly relied upon by the plaintiffs, to show that the devise in this case should be held void for uncertainty, is that of Jones v. Hancock, cited from 1 Jarm. on Wills 318. In that case the testator devised certain land to his daughter, and then provided, that, if she should marry a man with less property than he had devised to her, she should have no more of it, than should be equal to that of the man she married; and that, in such case, all the remainder should immediately pass over to another daughter. The devise over to the second daughter was held void, — not, however, by reason of the uncertainty in the measure, which the testator had provided for determining the quantity, that should pass to the second daughter. It was conceded, that the second daughter could not take a portion of the land in severalty, for the want of any designation of the portion so to be taken, and it was held, that she could not take as tenant in common, because the estate was to vest in her [122]*122immediately on the marriage of the first daughter, before the proportion, to which she would be entitled, could be ascertained.
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[119]*119The opinion of the court was delivered by
Hall, J.
Several objections are made to the judgment of the county court.
1. It is said, that there are no devising words in the will to Peggy Nason, in regard to her living in the house; that the language of the testator is to be construed as matter of advice to John Nason to permit her to live there; and that she consequently took no absolute interest or right in the house by the will.
This objection, we think, ought not to prevail. We should be inclined to construe the will as a direct devise to her of a right to all the privileges in the house, that she had before enjoyed. But whether the previous words “give and grant” are to be connected with the devise to her, or her right is to be raised by implication, is quite immaterial. To whichever class of devises the gift to her is referred, we think the intent of the testator, that she should have a right in the house, is quite plain. The legacy to her of a particular horse, owned by the testator, immediately precedes, and that of a cow immediately follows, this devise, in the same sentence; and if the devise is a mere recommendation, the legacies must also be the same. To hold, that she acquired no right to these articles by the will, would be such a violation of the manifest intent of the testator, as to appear quite absurd. We have no doubt, from the language of the will, that the testator designed to make an absolute devise to her, — that it was his intention, that what was before a privilege, subject to his will as her father, should be the measure of a right, which she should enjoy after his decease.
2. It is objected, that parol evidence is inadmissible, to show the extent of the privilege, which the devisee had enjoyed in the house1 of her father previous to his death, for the purpose of giving effect to the devise.
It is undoubtedly true, that parol evidence is inadmissible to prove the intention of the testator, as an independent fact; for that would be making a will for him, without writing; but it has always been held, that the circumstances surrounding a testator at the time of the execution of his will may be given in evidence, to identify the-property, upon which the will was designed to operate, and to give-effect to the words of it. It was conceded in the argument, that extrinsic evidence, to show the quantity of interest of the testator [120]*120in an estate intended to be devised, might be admissible; but it is urged, that the quantity of interest intended to be devised, when it is to be carved out of a greater interest in the testator, is of a different character; and that evidence of such interest is not admissible.
This distinction is almost too nice, to be intelligibly stated; and we are unable to discover any ground for it, either in reason, or from authority. If the testator’s devisable interest in the house, in this case, had been only such as he had previously enjoyed, and he had devised it to his daughter, describing it as such, the objection concedes, that the quantity of his interest might have been shown by parol. It is difficult to conceive, why the extent of a like interest, stated to be in another, could not be shown and measured in the same manner. One of the seven general propositions, upon the correctness of which the clear and able work of Wigram on Wills is based, declares, that, for the purpose of identifying the thing intended by the testator, and of determining the quantity of interest, which is given by his will, parol evidence is admissible as to every material fact relating to the property, which is claimed as the subject of disposition; and the authorities cited by him appear fully to sustain the proposition. No such distinction, as that contended for, is made, or intimated, by this writer, or any other that has been cited.
3. It is next insisted, that, even with the aid of parol testimony, the devise to the defendant is to be treated as void for uncertainty.
It is true, that the language of a testator, in attempting to make a devise, may be so confused, or ambiguous, as to render it impracticable, even by a knowledge of the surrounding circumstances, to determine what he intended; and in such case the devise must, from necessity, be held void for uncertainty. A common case, mentioned in the books, of a gift void for uncertainty in the designation of the quantity intended to be given is that of a bequest by the testator of “ some of his best linen.” It being impossible to determine, how much of his linen the testator intended, the bequest must fall for uncertainty. But if, instead of some of his best linen, the testator had said, he gave to A. the same quantity of his best linen, that he had before delivered over to B., a rule for determining the quantity bequeathed would have been furnished. The intention of the testator, in such case, would have been perfectly clear; and although [121]*121there might be great embarrassment and difficulty in determining the quantity of linen, which had been delivered to B., — so great, perhaps, that no two juries would find exactly the same quantity, — • yet this difficulty would not render the will void for uncertainty. The measure provided by the testator was certain. The uncertainty would arise for the want of sufficient proof in applying it. The legatee would be entitled only to so much linen, as he could prove had been delivered over to B. If he failed to prove any had been delivered, the bequest would fail for the want of any subject for it to operate upon, not for any uncertainty in the expressed intention of the testator.
In this case the testator has provided a certain measure of the right of Peggy Nason, the devisee. His intention is clear and unambiguous, that she should have the same right in the house, that she had before enjoyed; and if there is any difficulty in regard to the devise, it is in ascertaining, by proof, the extent of her previous enjoyment. If she had failed in proving any definite occupation, or enjoyment, the devise must have fallen for want of any thing for it to operate upon. There would have been no such property found, as that devised. But the previous privilege, which the will had changed into a right, has, by applying the measure specified in the will, been ascertained; and, being ascertained, the defendant is entitled to the benefit of it.
The case most strongly relied upon by the plaintiffs, to show that the devise in this case should be held void for uncertainty, is that of Jones v. Hancock, cited from 1 Jarm. on Wills 318. In that case the testator devised certain land to his daughter, and then provided, that, if she should marry a man with less property than he had devised to her, she should have no more of it, than should be equal to that of the man she married; and that, in such case, all the remainder should immediately pass over to another daughter. The devise over to the second daughter was held void, — not, however, by reason of the uncertainty in the measure, which the testator had provided for determining the quantity, that should pass to the second daughter. It was conceded, that the second daughter could not take a portion of the land in severalty, for the want of any designation of the portion so to be taken, and it was held, that she could not take as tenant in common, because the estate was to vest in her [122]*122immediately on the marriage of the first daughter, before the proportion, to which she would be entitled, could be ascertained. The point decided in the case was, that the extent of the interest of a tenant in common in land must be capable of being ascertained from the instrument creating it. The decision was, not that the measure for ascertaining the quantity of the tenant’s interest was too uncertain to be applied, but that no measure, extrinsic from the instrument creating it, could be admitted to give effect to such an estate. The question, therefore, upon which that case turned, was foreign to that which arises in this.
4. It is farther objected, that the testimony in regard to the occupancy and use, by the defendant, of the room and house, subsequent to the death of her father, was inadmissible. We are inclined to think the evidence was admissible, as showing a practical construction of the extent of the right under the devise, by those claiming adverse to her, and under whom the plaintiffs claim; — but it is unnecessary to say it was admissible on that ground. The right of the defendant to occupy the room in controversy was a personal right, which she could not assign, but which she might waive. The testimony was proper, to connect her possession at the time of the action brought with that at the death of her father, and to show, that she had continued in the exercise of her right, and had not waived or abandoned it.
It is unnecessary to give a name to the interest, or right, which the defendant had in the house. Any interest, or right, whatever, may be given by will. The right, which she acquired, was doubtless a personal one, and is, perhaps, in the nature of an easement. But by whatever name it may be called, it must be considered as extending to the exclusive possession of the room, which she occupied as a sleeping room. To give the devise any other effect would be to suppose, that the testator intended to render it entirely valueless to his daughter. We think she had the right, under the will, to occupy the room, free from all intruders, and that the plaintiffs, by virtue of their paramount estate, are not entitled to enter it against her consent, either by writ of possession or otherwise.
The judgment of the county court is therefore affirmed.