Mason, J.,
delivered the following opinion:
In what cases, and to what extent, parol testimony is admissible to explain ambiguities in wills, or to ascertain the intention of the testator dehors the will itself, are questions, the determination of which has ever been attended with the greatest difficulty. To this class of questions does the one presented upon this appeal belong. *
. On the trial below it was admitted that Mrs. Craig, the testatrix, was seized of the real estate in controversy, and that [505]*505by her will, duly executed, she devised the same “to Anna Maria German, wife of Jonathan German,” and that Anna Maria was not in fact the wife, but the daughter of Jonathan German, but that his wife was named Catharine.
In this condition of the case the question arose, whether parol testimony was admissible to enable a jury to ascertain whether the testatrix intended to devise the property to the daughter, or (he wife, or whether such parol evidence was to be excluded, and, from the will itself, arrive at the intention •of the testatrix? Parol evidence was received, and the question of intention submitted to the jury, who found in favor of the daughter, and hence this appeal.
In all cases it is necessary, in construing wills, that the court should be placed, by parol evidence, in possession of all the surrounding facts and circumstances connected with the testator, and which tend to show his situation in his relations to the persons and things to which his devise may refer. Therefore it would have been proper in this case to have shown, if the fact had not been admitted, that the name and description of the devisee did not concur. Properly speaking this is not that kind of evidence which is intended to explain written instruments, but is proof necessary to enable the court to understand the situation of the testatrix, and thus reach the meaning and application of the words employed in the will. But the evidence which is sought here to be introduced, to show the intention of the testatrix, independent of the words of the will itself, and of such surrounding circumstances as have been alluded to, is a question of a very different nature. The inquiry then arises, in what cases extrinsic evidence of intention on the part of the testator is admissible: or, in other words, in what cases can ambiguities in written instruments be explained by parol proof?
Patent ambiguities are those which appear upon the face of the writing itself: as for example, a will with the name of the devisee left iu blank. As a general rule such ambiguities cannot be explained, but if settled at all, must be from the face of the paper itself.
On the other hand a tatcfi.f, amMgiúhj is, where a writing is [506]*506perfect and intelligible upon its face, but from some circumstance admitted in proof, a doubt arises as to the applicability of the language employed to a particular person or thing; but, it is by no means an universal rule that general parol evidence is admissible to explain even latent ambiguities, or that such questions, in every instance, are.questions of fact for the jury. The present case presents an example of a latent ambiguity.
Cases of latent ambiguity may be classed under three heads. The first is, when the description contained in a written instrument, of the person, thing or place intended, is applicable with equal certainty to each of several subjects, as a devise to “ my cousin John,” when the testator has two cousins John. In cases belonging to this class, and in none other, (it would seem from the later authorities,) is general parol evidence of the intention admissible, such as the declarations of the testator at the time and before executing the will, the nature and character of his intercourse and relations with the different parties, and things intended to be described, and the like. This principle, in the broad language in which we have laid it down, has been recognised in a number of cases, but the rule upon the subject is perhaps no where so well and fully defined, as in the recent ease of Hiscocks vs. Hiscocks, 5 Mees. & Wels., 363, by Lord Abinger. He says: “Now, there is but one case in which it appears to us that this sort of evidence (the testator’s declarations, the instructions given for his will, and other circumstances of the like nature,) of intention can properly be admitted, and that is where the meaning of the testator’s words is neither ambiguous 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. Thus if the testator devise his manor of S to A, B, and has two manors of S,” &c. “ It appears to us, that in all other cases parol evidence of what was the testator’s intention ought to be excluded, upon this plain ground, that the will ought to be made in writing; and if his intention cannot be made to appear by the writing, explained by circumstances, there is no will.”
[507]*507in a still later case, (1853,) Bernasconi vs. Atkinson, 23 Eng. Law & Eq. Rep., 207, the same principle is thus broadly ■announced: “Now, I think it is quite plain, upon looking' through the authorities, that there is only one case in which any evidence can be introduced to show the intention of a testator, namely, where the description in the will is equally applicable to two different subject matters of devise, or to two different persons.”
Again, in Wigram on Wills, (2 Lib. of Law & Eq.,) Prop, 7,page 101, it is said, “that courts of law, in certain special «ases, admit extrinsic evidence of intention to make certain the person or tiling intended, when the description in the will is insufficient for the purpose. These cases may be thus defined: — when the object of a testator’s bounty, or tire subject of disposition, (i. c., the person or thing intended,) is described in leans which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or tilings so described was intended by the testator.”
To this class of cases belong those of Cheney, 5 Rep., 68; Couden vs. Clerke, Hobart, 32; Jones vs. Newman, 1 Wm. Black, 60; Doe vs. Westlake, 4 Barn, & Ald., 57; Fox vs. Collins, 2 Eden, 107; Brownfield vs. Brownfield, 12 Penn. State Rep., 136, and others. In all those cases general parol evidence was properly admitted, including the declarations of the testator, to show his intention, or explain his meaning. And the reason of the rule is obvious, and it is because it would be impossible to form any general, sensible rule of interpretation, by which courts could settle such questions from the face of the will itself, and they would remain undetermined, if parol proof of intention were not permitted to go to the jury. In the case of Vernor vs. Henry, 3 Watts, 393, Chief Justice Gibson says: “When the designation is by a name common to two or more, and without reference to circumstances of description, the question of identity is one purely of fact.”
The second class of cases of ambiguity is, where the name, or description, or both, of the person or thing intended to be referred to, is in some respect so far incomplete or erroneous, as not to refer with precision to any particular person or thing, [508]*508and therefore the defect or omission has to be supplied by implication, as, for example, a. devise was to “Catharine Earnly,’-’ while no person of that name claimed the legacy, but one Gertrude Yardly did. Beaumont vs. Fell, 2 Peere Wms., 140. The cases of Thomas vs. Thomas, 6 Term Rep., 671; Vansant vs. Roberts, 3 Md. Rep., 119, and others, are also examples of cases of this character. It may be added that out of such cases have arisen the greatest difficulties and conflict of authorities, as to whether such questions were to be determined by the court or by the jury, and to what extent, if at all, extrinsic evidence was admissible to ascertain the testator’s intention. In many instances the same rule has been adopted as in cases falling under the first head, and the widest latitude has been allowed to the introduction of evidence to the jury, and the two English cases last cited are examples of the great extent to which courts have gone upon this point. We have referred to them, not as authorities, (for they have not been sustained by later cases,) but as illustrations merely of our meaning. The case also of Camoys vs. Blundell, 1 House of Lords' Cases, 778, is one of this class, and the same case is also reported in 11 Simons, 467, and is more fully referred to hereafter. In modern decisions much less latitude is allowed in the admission of testimony of intention tiran was warranted by the earlier cases, and, if what we have said upon the first head be correct, the practice of submitting such questions as those which belong to cases arising under our second head to the jury at all, and especially upon the declarations of the testator, and other similar evidence, is not warranted by sound general principles, or by cases of later adjudication. All such questions are questions of construction for the court, and- must be determined from the face of the will itself, in connection only with such facts and circumstances as, in the language of Lord Coke, “stand well with the will.”
In the case of Blundell vs. Gladstone, as reported in 11 Simon, 467, and which we have before said belongs to this class, the vice-chancellor says: “The sole question is, who was the person described as f Edward Weld, of Lulworth, in the county of Dorset, Esquire?’ That is the sole question, [509]*509and for the purpose of determining it I shall only advert to the evidence which 1ms been given, and very properly given, of the state of the Weld family, entirely rejecting from my consideration every thing else dehors the will, that can be at all said to bear upon what the testator’s intention was. I look only at the facts of the case, namely, at those facts which show the state of the Weld family at the date of the will, and what the testator has said in his will.” See also 5 Pick., 512, and particularly the case of Douglas vs. Fellows, 23 Eng. Law & Eq. Rep., 240. The case of Vansant vs. Roberts, 3 Md. Rep., 119, was a case of this class, and there this court rejected parol evidence and decided the case from the face of the will, and the surrounding circumstances.
Then comes the third class of cases, as where tire name used applies perfectly to one person or thing, while a description employed applies as perfectly to another. To this class belongs the case we are now considering. Such also were the cases of Doe vs. Huthwaite, 3 Barn. & Ald., 632; Smith vs. Smith, 1 Edwards Chan. Rep., 189; Adams vs. Jones, 9 Eng. Law & Eq. Rep., 269; Bradshaw vs. Bradshaw, 2 Younge & Col., 72; Vernor vs. Henry, 3 Watts, 385; Douglas vs. Blackford, 7 Md. Rep., 8, and others.
The first matter to be determined, in a case like the present, is, whether the question is one of fact for the jury, or whether it is one of construction for the court? Upon principle it seems plain, that it must be one of construction, and should be settled by the court from the face of the will, in connection with the surrounding circumstances attending the transaction, although it is to he admitted, which it is to be regretted, that the authorities are very conflicting upon the subject, and any attempt to reconcile or harmonise them, would be a work of impossibility. In speaking of wills being the subjects of construction for the court, of course it is only meant to embrace such cases whole the facts, which would be properly admissible in evidence, are admitted. In every instance when facts are denied, they must be found by the jury upon a hypothetical instruction from the court. Ch. J. Gibson, in Vernor vs. Henry, says, “that the ascertainment of intention from the will itself falls within the province of the court.”
[510]*510Here it may be remarked, if the principle laid down under our first head, upon the authority of Lord Abinger and others, be correct, then the present case is not one for the jury, or for the admissibility of parol evidence, because it does not fail within the rule there prescribed for the admission of such testimony. Where, from the face of the will, in connection with the surrounding circumstances, a case is disclosed, upon which the judicial mind can take hold, and upon principles of reason or logic, arrive at a conclusion in regard to the testator’s intention, then the case is one of construction for the court, and not one of intention depending upon extrinsic evidence and to be found by a jury. The case before us is one of this character, while cases falling under our first head could never be determined upon any such principle, and must therefore be submitted to a jury upon general evidence of intention. And it may be added, that this question is a matter of construction for the court appears manifest from the circumstance, that as far back as Lord Bacon’s time, a rule of interpretation was adopted by which cases of this kind were to be determined, and that that rule, with certain qualifications, has been repealed and recognised down to the present period. If this therefore be a question purely of intention, to be governed by the peculiar facts of each case, as understood by different juries, does it not follow that the result would work a complete abrogation of the rule ? In other words, where is the office of this or any other rule, if each case is to turn upon the intention of the testator independent of all rules?
Lord Bacon states the maxim of law to be, “ventas nominis tollit errorem demoiistrationis;” which is, the truth of the name .takes away, or controls, the error of the description. As recently as 1849, Chief 3 ustice Gibson, in the case of Brownfield vs. Brownfield, already cited, adopts precisely the same rule., in this language: “Where a concurrent designation by name and description disagree, the rule is, that the former shall be taken to be more worthy in certainty.” And the same rule is commented upon in the still more recent English case of Camoys vs. Blundell, 1 House of Lords’ Cases, 778. •Of the rule Lord Brougham says, “I admit its authority as a general principle.”
[511]*511íf, therefore, this rule comes to us well sanctioned, as it certainly docs, then we are to conclude, that all questions falling' within the purview of the rule, are to be governed by the rule, and that we have no more right to disregard rales of interpretation in arriving at the purpose of the testator, by submitting the question of intention to the jury, than we would have to disregard the long and well established rule adopted in Shelly's case, and to make all the questions so long controlled by that rale, depend entirely upon the capricious conclusions of juries, based upon facts outside of the instrument. All wills, it is true, depend upon the intention of the testator, but in every case, except the one already referred to, namely, where the designation is by a name, common, with equal certainty, to two or more persons or things, that intention must be ascertained by the court from the face of the will itself, and the surrounding circumstances which are connected with, or relate to,, the parties, or the subject matter of the devise, and upon established rules of interpretation. ,.
■ The error in the present case consists, in having submitted to the jury the question of intention, and in having received: testimony other than that which was simply sufficient to bring-the case within the operation of the rule, by showing that the name designated one person, while the description pointed to another. At this point of the case the rules of interpretation ought to have been invoked, and from them the intention ascertained.
As has before been remarked, the authorities do not sustain with unanimity the principles herein announced: on the contrary, many cases, especially those of earlier date, have admitted parol evidence, in its widest range, to go to the jury in cases in all respects like the present. But we repeat that such cases do not rest upon sound principle, and are not sustained by tbe more recent decisions. The case of Vernor vs. Henry, was a case like this, and although parol evidence was admitted to ascertain the intention of the testator, yet in the subsequent case of Brownfield vs. Brownfield, Judge Gibson in referring to his previous decision in Vernor vs. Henry, places the decision upon the express ground, that it was in pursuance of the [512]*512rule of Bacon. He says, “I can, at present, recall but one case in which a legal conclusion has been drawn from modes of designation. Where, as in the case of Vernor vs. Henry, 3 Watts, 393; a concurrent designation by name and by description, disagree, the rule is that the former shall be taken to be the more worthy in certainty.” The late cases of Hiscocks vs. Hiscocks, already cited, and Miller vs. Travers, 8 Bing., 244, assail many of the earlier cases upon this question, as unsound. The court, in the first of those cases, say, “it must be owned, however, that diere are decided cases which are not to be reconciled with this distinction in a manner altogether satisfactory.” And again, “these cases, (Thomas vs. Thomas and Beaumont vs. Fell,) seem to us at variance with the decision in Miller vs. Ti'avers, which is a decision entitled to great weight.” By authority of the case of Miller vs. Travers, as well as that of Hiscocks vs. Hiscocks, the earlier cases of Thomas vs. Thomas, 6 Term Rep., 671; and that of Beaumont vs. Fell, 2 Peere Wms., 140, are expressly overruled, and we think properly. The case of Douglas vs. Blackford, 7 Md. Rep., 8, fully supports the position, that in cases like the present, the question is one of construction for the court, and not a question of intention to be found by a jury.
This then brings us to the consideration of the last point suggested by this record, and that is, as a question of interpretation for the court, who takes under this will, die daughter, or the wife, of Jonathan German ?
If the principle laid down by Bacon is to prevail as the unbending rule of law, upon the subject, without qualification, then the daughter would undoubtedly take. But Baron Parke in Camoys vs. Blundell, expressly says, that the rule “is not inflexible. ” and Lord Brougham in the same case adds, “I admit its authority as a general principle; but still, so far from its being an inflexible rule, I find the learned judges have held that it is not inflexible;” and a number of other cases to the same effect, might be cited.
The reason assigned for this principle, as a general rule of interpretation, is, that, the name being more certain than the description, should therefore prevail. It would seem to follow [513]*513ns a necessary consequence, that the converse of the proposition would be true, if the description was more certain than the name. It would undoubtedly strike every one as reasonable, that the best and surest way to designate persons would be by the name they bear, yet, at the same time it must also be admitted that title or description, in many cases, would be a paramount and superior designation to the name itself even. What could be a more commanding or certain designation of any woman, than that of “wife of” such a man? How many females do we know, well, and even intimately, as the wives of particular individuals, without even knowing their Christian names? The title, in such a case, is so unerring and complete as to absorb the name almost entirely: — in other words, it becomes the substitute for the name itself. Indeed, it is a very common practice at present, to convert the name of the husband into that of the wife, by simply affixing to the former the letters, “Mrs.,” thus dispensing with the real Christian female name almost entirely.
So with the titles, for example, of president, or governor, or the like. In such cases the designation points so unerringly to a particular individual, that the name becomes, comparatively, of small moment.
The precise point involved 'in the present appeal has been twice adj udicated and reported, — so far as we have been able to discover. The case of Smith vs. Smith, 1 Edwards' N. Y. Chan. Rep., 189, it must be admitted is, in all respects, in direct conflict with the positions we have taken in this opinion. In the first place parol evidence was admitted, for the purpose of reaching the intention of the testator. One of the chief authorities relied on for such a proceeding, was the case of Thomas vs. Thomas, which we have shown has been overruled by the later and better cases. In the next place the old rule of Lord Bacon was recognised without qualification, and the description of “wife of N. S.” was made to yield to the name, which pointed to another person. This case was decided in 1831.
On the other hand, the case of Adams vs. Jones, 9 Eng. Law & Eq. Rep., 269, and which was decided as late as 1852, is a. case directly in point to support the, positions [514]*514herein taken. In that case the devise was “to Clare Hannah Adams, the wife of Thomas Adams.” A daughter of Thomas Adams was named Clare Hannah, but the name of his wife was simply Hannah. The daughter and wife, as in this case, both claimed the legacy. The court held that the question was one of construction by the court, from the face of the will, and decided in favor of the claim of the wife. The court say, “But, in the present case, the testatrix must have known who was the wife of Thomas Adams, and probably made a mistake in the name.” The same theory would determine the present case in the same way. See, also, 1 Coke Lit., 3 a, (Ed. of 1853.)
It is averred with confidence, that if this devise were submitted to the correct thinking and sound judging men of any or all professions, unembarrassed by the extrinsic evidence which has been made to surround and confuse the case, that ninety-nine out of every hundred of them would say the testatrix meant the wife and not the daughter of German.
In the view taken of this case, it would perhaps be unnecessary to express any opinion in regard to the first exception, which related to the admissibility of testimony. Some of the facts proposed to be proved, may have been (but I express no opinion) of that class which “stand well with the will,” and were therefore admissible, and as the objection to the testimony was general, the court was probably right in overruling it. But if all the legal evidence applicable to the case and none other, had been received, the prayer of the appellant, which adopts the interpretation already suggested, ought to have been granted. But not having been granted, the judgment ought to be reversed.
This opinion has rested, throughout, upon the well settled and almost universally recognised principle of more modem times, that in no case is the bequest to be deemed void for uncertainty, as to the person or thing referred to, by the testator, if, with any degree of reasonable certainty, it can be ascertained upon legal rules of interpretation. I am in favor, therefore, of a reversal of the judgment.
But in the conclusions to which I have come in the forego[515]*515iiag opinion, my brother judges do not concur. Judge Eccleston thinks, that upon a proper construction of the will, in connection with such evidence as was legally applicable to the case, the daughter of German is entitled to the property, and that the judgment ought to be affirmed. On the other hand, Judge Tuck is of the opinion, that the devise is void for uncertainty, and that the property embraced in it descends to the legal heir, as if the party had died intestate. Without approving of the result of the trial below, he nevertheless thinks, that the ruling of the court upon the first exception was correct, because the objection of the appellant to the admissibility of, the testimony, having been general to the whole evidence, and as some of it was legal and proper, the objection was properly overruled under a well established rule frequently adopted by this court. Judge Tuck thinks, also, the prayer of the appellant was property refused, because it asked the court to say that the property passed to German’s wife, while he thinks it descends to the heir or heirs at law.
As between the heirs at law, and Anna Maria German, the daughter, I express no opinion.
The anomalous position of the court upon the questions involved in this case, leads inevitably to an affirmance of the judgment.
Judgment affirmed.
'Tuck, J.,
delivered the following separate opinion:
Although the law, in some cases, admits evidence of surrounding facts, for the purpose of ascertaining the meaning a testator may have applied to certain words used in his will, it nowhere countenances the idea, that speculation or conjecture may he indulged in. The facts when received must satisfy the mind, at least beyond a reasonable doubt, that the exposition they are designed to support is the correct one. We must resort to the words of the will, (aided in those cases in which parol evidence is received,) free from conjecture. Ram. on Wills, 31. Lord Mansfield said, “Guesses may be formed, but that is not enough. Perhaps quod voluii non dixit.. We cannot make a will for the .testator. Conjectures [516]*516maybe made both ways.” Dougles, 78. The intention must be gathered from the whole will so as to leave the mind quite satisfied about what the testator meant. 3 Burr., 1531. We cannot proceed on loose conjectural interpretations, or by considering what a man may be imagined to do in the testator’s circumstances. 1 Eden, 43. 3 Term Rep., 85.
It is much to be regretted, I think, that parol evidence was ever admitted except in cases of undoubted latent ambiguity, such as where there are two persons of the same name, or two estates or other pieces of property known by the same designation, each answering the words in the mil. Here, however, there are not two persons answering fully the name and description in the will. On its face it shows a plain intent, provided the person named is the wife of Jonathan German, but she is not; and hence the property cannot pass to either, according to the words of the will as they are written. If the claim of either be allowed so much of the will as would give the estate to the other must be overlooked or explained. The name applies to one and the description to another, and we are called upon to say which was intended as devisee of the property.
After carefully considering the case, with every disposition to avoid an intestacy, which the books tell us is our duty, I cannot, with any degree of confidence, satisfactory to my own mind, declare, that the exposition of either side is well founded. Part of the evidence taken alone would show one view to be correct, but that is fully met, if not overcome, by other portions of the proof, and when the whole evidence is considered in connection with the will the uncertainty is very much increased. The doctrines of the law applicable to these questions are fully discussed by Mr. Wigram under his sixth and seventh propositions, according to which, and the cases there cited, I am of opinion that a prayer affirming the right of either party, claiming as devisee, could not be granted. It is to be remembered that the law pays respect to the rights of the heir at law, and that he is not to be disinherited by slight implication or vague conjecture as to the intent of the testator, gathered from evidence of facts, of which, in the present case, [517]*517it may be safely averred, there is much on both sides. The only safe test, if indeed any cao be so called, where the door to parol evidence is once opened, is, as stated by Wigram, 99: “Do the words of the will, when all the circumstances of the case are known, express the intention which is ascribed to the tesiator? The court which interprets the will must be satisfied that they do so, and no other rule can, in the abstract, be laid down.” 1 am not satisfied from the evidence offered, that either of these parties is entitled as devisee of the property in dispute, when the proof is applied to the language of the will. I consider the devise as inoperative from uncertainty, occasioned by a mistake which we have no power to correct. The prayer, which was refused, having asked the court to affirm the title of the defendant, it was properly refused, as should have been one offered on the hypothesis of the plaintiff’s right as devisee. As was said in Hiscocks vs. Hiscocks, 5 Mees. & Wels., 363, the plaintiffs must, for the present, succeed, but the claims of the heirs at law may ultimately prevail.