The opinion of the court was delivered by
Kennedy, J.
It seems to be conceded by the counsel for the plaintiffs, that from the face of the will itself, the wife being a grandniece, and not a niece of the testator, she could not be considered as comprehended and entitled to claim as a legatee, under the denomination of “niece.” But it is contended that, with the aid of the parol evidence which the court below1 would not suffer the plaintiffs to give, it would appear that the testator intended that the children of Elizabeth Stichter, his niece, who, being dead at the time of making the will, could take nothing herself, should have that portion of his estate which would have been coming to their mother, had she been living at the time of making the will, and the death of the testator; [105]*105and that the wife of the plaintiff being one of seven children of Elizabeth Stichter, the niece, is entitled to one-seventh of that portion of the testator’s estate which their mother would have taken, had she been living at his death. But had she been living at the time of making the will, and died before the testator’s death, it is by no means certain, as has been said by the counsel for the plaintiffs, that the legacy intended for her, would not, even in that case, have lapsed without going over to her children, under the clause providing that such should be the case, in the event of any of his nephews or nieces dying, “ leaving no heir before the division of his estate,” &c. But Elizabeth Stichter was not living, and therefore was not one of the testator’s nieces at the time of his making his will, and of course could not have been intended by the testator, if he knew the fact of her death then, which it is alleged by the plaintiffs he did, as one of those who was to participate in his estate. But it is argued, as he knew the fact of Elizabeth Stichter’s death, at the time of making his will, he must have supposed that her children would take the share that she would have been entitled to if living, under the following devise and bequest; “ I also give to every nephew and niece of mine .an equal share of my estate; and that if any nephew or niece of mine die, leaving no heir,” (no child or issue doubtless was meant) “ before the division of my estate, then his or her portion shall not be divided among his or her friends, but shall be divided equally-among my surviving nephews and nieces;” because, unless such was his notion, it is impossible almost to account for the pledge contained in the immediately following sentence, in which, after mentioning, that.“ there is a suit against Peter Weimer’s estate,” he pledges “ the portion of Elizabeth Stichter, formerly Kast, so far as it will go, to make good any loss Peter Weimer’s estate may sustain by the said law suit, because he thought it unjust that such suit sliould have been commenced.” If, however, it were possible to imagine that the testator really entertained such an idea, and proof could be made of the fact, it would go to overturn the established rules of law, as also the meaning of the language employed by the testator ; which cannot be done. When the testator pledged by his will “ the portion of Elizabeth Stichter,” knowing that she was dead, he pledged what he had and could not give her; though it was competent for him to pledge, as he did, that portion of his estate which she would have taken had she been living; 'but still that would not show, with any certainty, that he intended her children should take it. There is, therefore, no gift either to the mother or the children; and without this, the pledging of the mother’s portion, in the manner he has, cannot operate as a gift to the children of so much of the testator’s estate. The case of Shelley v. Bryer, (1 Jacob, 207,) Roper on Leg. 120, (Philadelphia, 1829,) seems to have been decided on this principle. In that case the testator gave the produce of the sale of his residuary real and personal estate, , after the death of his sister, [106]*106Susannah Shelley, equally to be divided between his nephews and nieces, wlio might then be living; and by a codicil gave to his “infant niece, Harriet Shelley,” whom he had not then seen, the sum of live hundred pounds, over and above her share, after the decease of his sister—in the body of his will treated of more at large. This case of Harriet Shelley, would seem to have been a stronger one in her favour than that of the plaintiffs here; for the testator designated her by name, as one of the objects of his bounty, expressly calling her his “niece,” in the bequest of the five hundred pounds; and showing also most clearly that he thought he had given her a share of his residuary estate; yet Sir Thomas Plumer, Master of the Rolls, held that she was not entitled to a share in the residuary estate, devised in the body of the testator’s will to his “ nephews and nieces,” generally: in short, that there was no gift of any portion of the residuary estate to her in the body of the will; and that the implication of such a gift was not sufficiently strong and clear in the codicil to entitle her to take a share of the same. So in Frederick v. Hall, (1 Fes. Jun. 396,) 2 Roper on Leg. 321, (Philadelphia, 1829,) the testator bequeathed all his personal estate, except his plate, “ which is hereinafter given to my daughter,” Jo his wife; with limitations over after his death; and took no further notice of the plate. The question was, whether this amounted to a bequest to the daughter; and Lord Loughborough decided in the negative; observing, that he saw no manner of giving the plate, to the daughter; nor any implication for that purpose: non constat whether it was to go over by executory devise like the rest of the property, or to her absolutely. Besides, to allow the plaintiff’s claim in the case before us, would militate against the intention of the testator, as disclosed by the next clause immediately following that giving to every nephew and niece an equal portion of his' estate, whereby he has, in language, the meaning of which is free from ail ambiguity, and cannot be mistaken, excluded the children of such of his nephews or nieces as were dead at the time of making his will, from participating as legatees in his estate, unless, as it would seem, expressly designated for that purpose in some part of the sequel. For by that clause he explicitly declares, “that if any nephew or niece die, leaving no heir (meaning no child or issue) before the division of my estate, then his or her portion shall not be divided among his or her friends, but shall be divided equally among my surviving nephews and nieces.” Thus excluding most clearly the children of Elizabeth Stichter; as also those of his nephews or other nieces, who were dead at the time of making his will. This, however, is not all; for it appears from the will itself, that when the testator intended to give to the children of a nephew or niece then dead, he considered it at least proper, if not absolutely necessary, in order that they might take, to do it by an express designation of them: as for instance in the case of the children of his nephew John Lybrand, who was then dead; he [107]
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The opinion of the court was delivered by
Kennedy, J.
It seems to be conceded by the counsel for the plaintiffs, that from the face of the will itself, the wife being a grandniece, and not a niece of the testator, she could not be considered as comprehended and entitled to claim as a legatee, under the denomination of “niece.” But it is contended that, with the aid of the parol evidence which the court below1 would not suffer the plaintiffs to give, it would appear that the testator intended that the children of Elizabeth Stichter, his niece, who, being dead at the time of making the will, could take nothing herself, should have that portion of his estate which would have been coming to their mother, had she been living at the time of making the will, and the death of the testator; [105]*105and that the wife of the plaintiff being one of seven children of Elizabeth Stichter, the niece, is entitled to one-seventh of that portion of the testator’s estate which their mother would have taken, had she been living at his death. But had she been living at the time of making the will, and died before the testator’s death, it is by no means certain, as has been said by the counsel for the plaintiffs, that the legacy intended for her, would not, even in that case, have lapsed without going over to her children, under the clause providing that such should be the case, in the event of any of his nephews or nieces dying, “ leaving no heir before the division of his estate,” &c. But Elizabeth Stichter was not living, and therefore was not one of the testator’s nieces at the time of his making his will, and of course could not have been intended by the testator, if he knew the fact of her death then, which it is alleged by the plaintiffs he did, as one of those who was to participate in his estate. But it is argued, as he knew the fact of Elizabeth Stichter’s death, at the time of making his will, he must have supposed that her children would take the share that she would have been entitled to if living, under the following devise and bequest; “ I also give to every nephew and niece of mine .an equal share of my estate; and that if any nephew or niece of mine die, leaving no heir,” (no child or issue doubtless was meant) “ before the division of my estate, then his or her portion shall not be divided among his or her friends, but shall be divided equally-among my surviving nephews and nieces;” because, unless such was his notion, it is impossible almost to account for the pledge contained in the immediately following sentence, in which, after mentioning, that.“ there is a suit against Peter Weimer’s estate,” he pledges “ the portion of Elizabeth Stichter, formerly Kast, so far as it will go, to make good any loss Peter Weimer’s estate may sustain by the said law suit, because he thought it unjust that such suit sliould have been commenced.” If, however, it were possible to imagine that the testator really entertained such an idea, and proof could be made of the fact, it would go to overturn the established rules of law, as also the meaning of the language employed by the testator ; which cannot be done. When the testator pledged by his will “ the portion of Elizabeth Stichter,” knowing that she was dead, he pledged what he had and could not give her; though it was competent for him to pledge, as he did, that portion of his estate which she would have taken had she been living; 'but still that would not show, with any certainty, that he intended her children should take it. There is, therefore, no gift either to the mother or the children; and without this, the pledging of the mother’s portion, in the manner he has, cannot operate as a gift to the children of so much of the testator’s estate. The case of Shelley v. Bryer, (1 Jacob, 207,) Roper on Leg. 120, (Philadelphia, 1829,) seems to have been decided on this principle. In that case the testator gave the produce of the sale of his residuary real and personal estate, , after the death of his sister, [106]*106Susannah Shelley, equally to be divided between his nephews and nieces, wlio might then be living; and by a codicil gave to his “infant niece, Harriet Shelley,” whom he had not then seen, the sum of live hundred pounds, over and above her share, after the decease of his sister—in the body of his will treated of more at large. This case of Harriet Shelley, would seem to have been a stronger one in her favour than that of the plaintiffs here; for the testator designated her by name, as one of the objects of his bounty, expressly calling her his “niece,” in the bequest of the five hundred pounds; and showing also most clearly that he thought he had given her a share of his residuary estate; yet Sir Thomas Plumer, Master of the Rolls, held that she was not entitled to a share in the residuary estate, devised in the body of the testator’s will to his “ nephews and nieces,” generally: in short, that there was no gift of any portion of the residuary estate to her in the body of the will; and that the implication of such a gift was not sufficiently strong and clear in the codicil to entitle her to take a share of the same. So in Frederick v. Hall, (1 Fes. Jun. 396,) 2 Roper on Leg. 321, (Philadelphia, 1829,) the testator bequeathed all his personal estate, except his plate, “ which is hereinafter given to my daughter,” Jo his wife; with limitations over after his death; and took no further notice of the plate. The question was, whether this amounted to a bequest to the daughter; and Lord Loughborough decided in the negative; observing, that he saw no manner of giving the plate, to the daughter; nor any implication for that purpose: non constat whether it was to go over by executory devise like the rest of the property, or to her absolutely. Besides, to allow the plaintiff’s claim in the case before us, would militate against the intention of the testator, as disclosed by the next clause immediately following that giving to every nephew and niece an equal portion of his' estate, whereby he has, in language, the meaning of which is free from ail ambiguity, and cannot be mistaken, excluded the children of such of his nephews or nieces as were dead at the time of making his will, from participating as legatees in his estate, unless, as it would seem, expressly designated for that purpose in some part of the sequel. For by that clause he explicitly declares, “that if any nephew or niece die, leaving no heir (meaning no child or issue) before the division of my estate, then his or her portion shall not be divided among his or her friends, but shall be divided equally among my surviving nephews and nieces.” Thus excluding most clearly the children of Elizabeth Stichter; as also those of his nephews or other nieces, who were dead at the time of making his will. This, however, is not all; for it appears from the will itself, that when the testator intended to give to the children of a nephew or niece then dead, he considered it at least proper, if not absolutely necessary, in order that they might take, to do it by an express designation of them: as for instance in the case of the children of his nephew John Lybrand, who was then dead; he [107]*107provides for them in the following terms: “ It is my will and wish that all the lawful children of the body of John Lybrand, son of my brother, Conrad Lybrand, shall have the portion of their father divided equally amongst them, male and female, share and share alike.” This provision also, for the children of his nephew, John Lybrand, repels the argument used for the plaintiffs, and goes to show clearly, if not conclusively, that the testator was fully aware, that under the devise to every one of his nephews and nieces, the children of those who were dead at the time of making his will, could take nothing by it; otherwise it would have been unnecessary to have provided for the children of his nephew, John Lybrand, as he did; and leads almost inevitably to the conclusion, that if he had intended to give to the children of his niece, Elizabeth Stichter, he would have introduced into his will a like provision in their favour. But not having done so, the only satisfactory inference that can be drawn therefrom is, that he did not intend to give them any portion of his estate. But if it could be imagined that he did, what portion of the estate would that be; if it were to be allowed under the denomination of nephews and nieces, then each of the seven children of Elizabeth Stichter, would come in for an equal portion of the estate, with each one of them, who were truly the nephews and nieces of the testator, living at the time of his death: this however is too monstrous to be claimed. But if reduced in amount to that portion which would have been coming to their mother had shebeen living at the death of the testator, non constat whether they are entitled to claim it jointly or in severalty. In truth, the claim of the plaintiffs, at best, seems to have no other foundation to rest on, than that of conjecture; and it appears to be even difficult to support it upon that ground, without running counter to the express provisions of the will in other respects.
Then as to the parol evidence which was offered by the plaintiffs, and rejected by the court; it is very apparent that it was not admissible, either upon the ground of reason or authority. No part of it tended to such an ambiguity as would have rendered the evidence, or any part thereof, properly admissible for the purpose of removing the ambiguity so raised. The ambiguity in genera] raised and removed by the admission of parol evidence, is either in regard to the object of the devise or bequest, or the subject of it. See Beaumont v. Fell, (2 P. Wms. 140, 421 to 425.) 2 Ves. 216. Amb. 374. 1 Ves. Jr. 266. 3 Ves. 148. 6 Ves. 42. 12 Ves. 279. Shep. Touch. 433. 1 Roper on Leg. 271-2; (Philadelphia, 1829.) But in no case, I apprehend, has parol evidence been received for the purpose of establishing a bequest or devise not given by or contained in the will itself: because it is perfectly obvious that such evidence Would tend necessarily to vary and alter the written will; which would be contrary to the common law rule on the subject: and, in the next place, would go to substitute the verbal declarations of the testator for his [108]*108last will and testament, in violation of the statute relative thereto, which requires that every thing of the sort shall be reduced into writing. It has been already sufficiently shown in this case, that the will itself contains no devise or bequest to Elizabeth Stichter; she being dead at the time it was made; nor yet to her children. Then what was the parol evidence offered for 1 Clearly, to show that the testator, from his conversations, and a letter written by him, but not pretended to be written as his last will and testament, or any part thereof, intended that the children of Elizabeth Stichter should have a certain portion of his estate. That is, in effect, to establish a bequest and devise in favour of the plaintiffs by parol evidence, not contained in the body of the will or its codicil. Even had the evidence been offered for the purpose of showing that the testator intended that the plaintiff should take as one of his nieces, it would still have been inadmissible: for no rule of law is more clear or more firmly settled, than that a will is not to be expounded by extrinsic evidence. Hence parol evidence is not admissible to show it was the intention of the testator, that natural children should take, under the term “ childrenThis must be collected from the will itself, either by express designation, or necessary implication. 1 Roper on Leg: 82,-(Philadelphia., 1829.) The judgment is therefore affirmed.
Judgment affirmed.