Thompson, Ch. J.
The decision now to be made does not depend so much upon ascertaining and defining the rules and principles of law involved in the discussion, as in a just and correct application of those rules and principles to the case before us. That the intention of the testator is to be sought after and carried into effect; that such intention is to be collected from the will itself, unaided by any extrinsic evidence, except in the case of a latent ambiguity, or to rebut a resulting trust; and that no parol evidence is admissible to contradict, enlarge, or vary the words of a will, are general rules so well settled, that they may be assumed as elementary principles of law. A correct application of them to this case will, in my judgment, lead to an affirmance of the decree.
The particular clause in the will of David Mann, upon which the question turns, is in these words, “I do give and bequeath [10] unto my said wife, Mary Mann, all the rest, residue, and remainder of the moneys belonging to my estate, at the time of my decease.” Whether, under this bequest, Mary Mann is entitled to all the bonds, mortgages, notes, and choses in action, belonging to the estate of the testator, or only to the cash left, is the question between the parties. It was not pretended by the appellants’ counsel, that there was any ambiguity, or uncertainty, in the term moneys. Indeed, such a pretence would have been utterly inconsistent with the claim to let in parol evidence; for if -there was any such uncertainty, it would have been a patent ambiguity, which is, confessedly, not explainable by extrinsic evidence. But it was contended that the qualifications accompanying, and superadded, to the term moneys, either showed that the testator intended to use it in a sense different from the ordinary, .or legal, acceptation, or referred to a fund other than that created by his cash.
In examining into the intention of a testator, in any particular ^clause of his will, it is, no doubt, proper to gather all the light that can be thrown upon it, by comparing and explaining it with other parts of the will, so as to make the whole consistent, and all the provisions, if possible, to harmonize together. But when we are collecting the intention of the testator from the will itself, we ought to guard against the influence which the extrinsic evidence offered may have ’ upon the mind, if such evidence was inadmissible. In courts of equity, those parol proofs are generally permitted to be read without prejudice, subject to all just exceptions. But at law, where the jury might, and probably would be, influenced by the admission of improper evidence, the production of it will not be allowed. (Prec. in Ch. 104.) Let us, then, look at the will, per se, as if no parol evidence had been offered, and see whether a doubt could exist as to the construction of this will. If we had never heard that the testator had money out at interest upon bonds and mortgages, could it enter into the mind of any man, upon looking at the clause in the will under consideration, that moneys meant anything more than cash; or that it would extend to choses in action. It has, however, been said, that the words, rest, residue, and remainder, are relative terms, referring to an antecedent ; and which antecedent must have been a fund, not coming within the ordinary acceptation of the term moneys. That they are relative terms is undoubtedly true; but the con[11] elusion attempted to be drawn from this by no means, follows. The testator, previous to the clause in question, had directed all his just debts and funeral charges to be paid, and had bequeathed to his niece, Mary Cornell, one thousand dollars. His debts and funeral charges are not directed to be paid out of any particular fund. The moneys left by him would be the fit and proper fund to be resorted to for the purpose, and the one most likely to be in view by the testator, especially as the funeral expenses would require an immediate expenditure. The words “ rest, residue, and remainder,” are, therefore, satisfied, by referring them to the money as the fund. But the legacy to Mary Cornell is expressly directed to be paid out of his personal estate. And it would be a very strained interpretation to say that the testator used the words personal estate in the same sense as the term moneys ; and, unless he did, this legacy could not have been intended to be charged upon the money fund. His charging this legacy upon 'the personal estate, generally, shows, that when he used the word moneys, he meant and intended to use it in its usual and ordinary acceptation. Suppose the testator had left cash sufficient to pay this legacy, over and above his debts and funeral expenses, and had left other personal estate sufficient to pay the legacy, can there be a doubt but that the money would have been considered as a specific bequest, and the legacy chargeable upon the other part of the personal estate ? The words, “ rest, residue, and remainder,” are, therefore, satisfied by referring.them to his cash, the nato» ral fund for payment of debts and funeral expenses, where no specific directions are given.
There is nothing whatever in the will, requiring, or even affording, a rational conclusion that the legacy to Mary Cornell was intended to be charged upon the cash fund. Nor has the testator, in any part of his will, used the term moneysjn any other than its ordinary and appropriate sense. Thus, in relation to his demand against his brother Michael, he discharges him from the payment of all moneys which he shall ozoe him at the time of his decease. This necessarily, and unavoidably, refers to an outstanding debt. When we speak of the payment of money which one owes, it is impossible to misunderstand, or to give any other interpretation to the expression, than as having reference to a debt due. So, where he speaks of the moneys arising from the sale 9f his real and per[12] sonal property, he uses the term in its ordinary acceptation. Again ; he' authorizes his executors to sell his real estate for the - most moneys that can be got for the same, which is as apt and appropriate a use of the term as could be made. These are all the instances in which the word moneys occurs in the will, and. in no one of them is there an ambiguous or unusual meaning attached to it; clearly showing that the testator used the term understandingly, and not in any doubtful' sense. If so, it is utterly inconsistent with the sound and settled rules of interpretation, to give to this term a broader operation than its legal, or popular meaning requires.
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Thompson, Ch. J.
The decision now to be made does not depend so much upon ascertaining and defining the rules and principles of law involved in the discussion, as in a just and correct application of those rules and principles to the case before us. That the intention of the testator is to be sought after and carried into effect; that such intention is to be collected from the will itself, unaided by any extrinsic evidence, except in the case of a latent ambiguity, or to rebut a resulting trust; and that no parol evidence is admissible to contradict, enlarge, or vary the words of a will, are general rules so well settled, that they may be assumed as elementary principles of law. A correct application of them to this case will, in my judgment, lead to an affirmance of the decree.
The particular clause in the will of David Mann, upon which the question turns, is in these words, “I do give and bequeath [10] unto my said wife, Mary Mann, all the rest, residue, and remainder of the moneys belonging to my estate, at the time of my decease.” Whether, under this bequest, Mary Mann is entitled to all the bonds, mortgages, notes, and choses in action, belonging to the estate of the testator, or only to the cash left, is the question between the parties. It was not pretended by the appellants’ counsel, that there was any ambiguity, or uncertainty, in the term moneys. Indeed, such a pretence would have been utterly inconsistent with the claim to let in parol evidence; for if -there was any such uncertainty, it would have been a patent ambiguity, which is, confessedly, not explainable by extrinsic evidence. But it was contended that the qualifications accompanying, and superadded, to the term moneys, either showed that the testator intended to use it in a sense different from the ordinary, .or legal, acceptation, or referred to a fund other than that created by his cash.
In examining into the intention of a testator, in any particular ^clause of his will, it is, no doubt, proper to gather all the light that can be thrown upon it, by comparing and explaining it with other parts of the will, so as to make the whole consistent, and all the provisions, if possible, to harmonize together. But when we are collecting the intention of the testator from the will itself, we ought to guard against the influence which the extrinsic evidence offered may have ’ upon the mind, if such evidence was inadmissible. In courts of equity, those parol proofs are generally permitted to be read without prejudice, subject to all just exceptions. But at law, where the jury might, and probably would be, influenced by the admission of improper evidence, the production of it will not be allowed. (Prec. in Ch. 104.) Let us, then, look at the will, per se, as if no parol evidence had been offered, and see whether a doubt could exist as to the construction of this will. If we had never heard that the testator had money out at interest upon bonds and mortgages, could it enter into the mind of any man, upon looking at the clause in the will under consideration, that moneys meant anything more than cash; or that it would extend to choses in action. It has, however, been said, that the words, rest, residue, and remainder, are relative terms, referring to an antecedent ; and which antecedent must have been a fund, not coming within the ordinary acceptation of the term moneys. That they are relative terms is undoubtedly true; but the con[11] elusion attempted to be drawn from this by no means, follows. The testator, previous to the clause in question, had directed all his just debts and funeral charges to be paid, and had bequeathed to his niece, Mary Cornell, one thousand dollars. His debts and funeral charges are not directed to be paid out of any particular fund. The moneys left by him would be the fit and proper fund to be resorted to for the purpose, and the one most likely to be in view by the testator, especially as the funeral expenses would require an immediate expenditure. The words “ rest, residue, and remainder,” are, therefore, satisfied, by referring them to the money as the fund. But the legacy to Mary Cornell is expressly directed to be paid out of his personal estate. And it would be a very strained interpretation to say that the testator used the words personal estate in the same sense as the term moneys ; and, unless he did, this legacy could not have been intended to be charged upon the money fund. His charging this legacy upon 'the personal estate, generally, shows, that when he used the word moneys, he meant and intended to use it in its usual and ordinary acceptation. Suppose the testator had left cash sufficient to pay this legacy, over and above his debts and funeral expenses, and had left other personal estate sufficient to pay the legacy, can there be a doubt but that the money would have been considered as a specific bequest, and the legacy chargeable upon the other part of the personal estate ? The words, “ rest, residue, and remainder,” are, therefore, satisfied by referring.them to his cash, the nato» ral fund for payment of debts and funeral expenses, where no specific directions are given.
There is nothing whatever in the will, requiring, or even affording, a rational conclusion that the legacy to Mary Cornell was intended to be charged upon the cash fund. Nor has the testator, in any part of his will, used the term moneysjn any other than its ordinary and appropriate sense. Thus, in relation to his demand against his brother Michael, he discharges him from the payment of all moneys which he shall ozoe him at the time of his decease. This necessarily, and unavoidably, refers to an outstanding debt. When we speak of the payment of money which one owes, it is impossible to misunderstand, or to give any other interpretation to the expression, than as having reference to a debt due. So, where he speaks of the moneys arising from the sale 9f his real and per[12] sonal property, he uses the term in its ordinary acceptation. Again ; he' authorizes his executors to sell his real estate for the - most moneys that can be got for the same, which is as apt and appropriate a use of the term as could be made. These are all the instances in which the word moneys occurs in the will, and. in no one of them is there an ambiguous or unusual meaning attached to it; clearly showing that the testator used the term understandingly, and not in any doubtful' sense. If so, it is utterly inconsistent with the sound and settled rules of interpretation, to give to this term a broader operation than its legal, or popular meaning requires.
It was urged, however, in argument, that the qualification superadded to the term moneys, namely, “ belonging to my estate,’’ shows that the testator intended to use it in a more enlarged sense than its ordinary acceptation; and showing, also, a misdescription of the fund referred to. If the description was inapplicable to the subject, or thing bequeathed, there would be force in the argument, but that is not the fact. It is just as fit and proper to say the moneys, (meaning cash,) belonging to my estate, as to say the bonds and mortgages belonging to my estate. The description is equally applicable to both. The one belonged to his estate as much as the other. Indeed, if the description was false and inapplicable to the subject, the settled rule of construction requires a rejection of the description, when the thing devised, or bequeathed, is certain. (11 Johns. Rep. 218.) But there is no necessity of applying this rule. There is no misdescription; the moneys did belong to his estate; so that, although the description may be surplusage, it is true in point of fact. Is it not reasonable to presume that if the testator had intended, by this residuary bequest, any thing more than his cash, he would have used some more appropriate language ? The whole will shows that he understood the force and meaning of terms; and if he had intended, when he made his will, to extend this bequest to his bonds, mortgages, notes, and choses in action, it is inconceivable why he did not adopt some expression indicating such intention, as, “ the moneys due me,” “ my moneys at interest,” or the like; such would have been the natural and obvious phraseology.
There is no force in the criticisms which have been made upon the word moneys, as being of more extensive signification than money. In the statute book, and in common parlance, they [13] are used indiscriminately, as conveying the same sense and meaning.
It was very much pressed on the argument, that unless the word moneys was extended beyond the cash fund, there would be a failure of the bequest. And, in order to give much force to this argument, it was assumed that the 1,000 dollars legacy to Mary Cornell was charged upon the fund, of which the testator gave his widow the rest, residue, and remainder. But I have t'hown that that is not the case. The legacy to Mary Cornell is expressly charged upon the personal estate generally. It is true, that where there is a specific legacy charged upon a fund of any way doubtful description, that construction will be most favoured which will prevent a total failure of the bequest. This is the leading principle which runs through the cases cited upon this point on the argument. But the principle does not apply here in its full force. There is no specific sum bequeathed to the widow by this clause in the will, and there is nothing from which it can be determined how much he intended to give her. Where there is a specific sum named, the extent of the testator’s bounty is defined, and his will known, and it is the duty of courts to search for a construction that will carry it into effect. A general residuary clause is very often thrown into a will without much calculation as to its being very beneficial. It is certainly a pretty far-fetched inference, that this was to be the fund for the support and maintenance of the widow. I can discover nothing in the will intimating such an object, particularly by this clause, especially as such very ample provision had been made for her in the clauses immediately preceding. There is no more reason to concise that the moneys were intended for her support, than for the purpose of building houses upon the lotsr he had given her. If all his outstanding debts passed under this clause to his widow, then she would take all the personal estate ; for the specific legacies to her of his household furniture, farming stock, &c. swallowed up all the residue of his personal estate; and the subsequent clause, giving to the children of his three brothers the rest, residue, and remainder of his estates, real and personal, would, so far as respected the personal estate be nugatory. It is not reasonable to presume that if he had disposed of all his personal estate before, he would have again included it in this devise, and mentioned, so emphatically, as o.ae of his estates. It is one of the settled [14] rules in the construction of wills, so to interpret each part as to give effect to the whole, when it can be done, which would not be the case if the widow is to take all the outstanding debts. The residuary bequest of his personal estate would be senseless, having nothing to operate upon, and the testator knowing it to have been previously disposed of.
Construing the will, therefore, by itself, I can see no ground for extending the term “ moneys” to all the debts due to the testator ; and it must have this extent, if at all reaching a chose iñ action. The term is, if possible, less applicable to a bond than to an account, especially if it was for money lent. And, indeed, if we go beyond the legal or- popular signification of moneys, it must be extended to all claims sounding in contract.
I shall very briefly notice the question as to the admissibility of the parol evidence. This is, in a great measure, involved in the consideration of the other question. There is, certainly, no resulting trust to be rebutted, so as to let in parol evidence on this ground,- and I have endeavoured to show that there is no latent ambiguity calling for explanation by extrinsic evidence. The testator has used plain, intelligible, and appropriate terms. By applying the provisions in his- will to the situation of his property at the time of his death, there is nothing from which it can be inferred that there is a misdescription of the fund referred to in this clause in the will. Every provision in it is satisfied by giving to the words their usual and ordinary signification. To admit the parol evidence offered of the declarations of the testator, would be a direct infringement of what has been, for centuries, considered a settled rule, that no parol evidence can be received to supply, vary, contradict, or enlarge the words in a will, except in the cases mentioned, of which the present is not one. I agree with Lord Ellenborough, that it would be going farther than any case I am aware of, and a dangerous precedent to admit evidence of intent, from extraneous circumstances, to extend plain and unequivocal words in a will.
The inquiry into the situation of the testator’s property (admitting we were authorized to notice it) would not, in any manner, explain his intention with respect to his choses in action. Such intention would still be left to be collected, from the will itself. To receive the verbal declarations of the testator to contradict or enlarge the plain and obvious import of his written language, would not only be repugnant to the most sound [15] and salutary rules of law, and an alarming precedent, but would infringe upon the spirit and poliay of the statute, which declares, that no will in writing concerning any personal estate shall be repealed, or any part thereof revoked or altered by a!hy words, or will, by word of mouth only. (1 N. R. L. 367.) I am, accordingly, of opinion, that the decree ought to be affirmed.
This being the opinion of a majority of the court,