BANNER 12. MOULTON. l 9
22 Wend. 148; Doe v. Hiscocks, 5 Maas. Sa W. 369; Miller v. Trav·»
ers, 8 Bing. 244; O/ceden v. Cltfclen, 2 Buss. 309; Noarse v. Finch, 1
Ves. Jr. 358; Selwooal v. Milclmay, 3 Ves. Jr. 306; Cambridge v. Roas,
8 Vos. 22; Bengough v. Wal/scr, 15 Ves. 514; Herbert v. Reid, 16 Ves.
_ 485; Brett v. Rlgclerz, Plow. 340; Cesar v. Chew, 7 Gill & J. 127;
Amlress v. Weller, 2 Green, Ch. 604, 608; Comstock v. Hacllyme, 8
Conn. 254; Abercrombie v. Abercrombie, 27 Ala. 489. In the case
last cited, it was declared: "There is no legal principle more firmly
established, none that has received a more constant and uniform sup-, _
port, than the rule which declares that an omission in a written .will
cannot be supplied by parol evidence/’ The authorities cited show.
the general rule applicable to the admission of extrinsic evidence to
aid in the construction of written instruments, and are conclusive
against the admissibility of evidence to establish a bequest which the
testator did not make, when the testimony offered only showed his in-e
tention to make it. ·
But the plaintiffs contend that the devise to them of lands in Ellis
county involves a latent ambiguity, and that the devise was in fact a
bequest to them of the head-right certificate, and they insist on their
right to introduce the evidence objected to, on the ground that it serves
to remove the latent ambiguity. What is a latent ambiguity, is thus
illustrated in Bac. Law Tracts, 99, 100:
"If I grant my manor of S. to J. F. and his heirs, here appeareth no ambi-
guity at all. But if the truth be that I have the manors both of South S. and
North S., this ambiguity is matter of fact, and therefore it shall be holpen by
averment whether of them it was that the party intended should; pass. "
So where a testator had two sons both baptized bythe name of
John, and, believing the elder son to be dead, devises his lands to his
son John generally, and in fact the elder son was living, it was held
that extrinsic evidence was admissible to remove the ambiguity and
show which of the sons was intended to be the devisae. Lord C/zcney’s
Case, 5 Rep. 686. The rule in respect to the admission of parol evi·
dence to remove a latent ambiguity is thus stated by Lord Amuonn,
in Doe v. Hiscocks, 5 Mees. & W. 363: ‘
" There is but one case in which it appears to us that this sort of evidence
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 ad-
mitted in proof an ambiguity arises as to which of two or more things, or
which of two or more persons, each answering to the words of the will, the
testator intended to express. "
The case of Miller v. Travers is a leading case on this subject, and
has always been regarded as of high authority. Trxvmn, the chief
justice of the common pleas, and Lsmnnuizsr, the chief baron of the
axchequer, were called in to assist Baouemim, the lord chancellor in
the case. Their joint opinion was delivered by Tmmn, the chief jus·
tica, and is reported in 8 Bing., ubi supra. The case was this: The
testator, by his will duly executed, devised "a1l his freehold and real