Wigram's Proposition IV. Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, or to inform the court of the proper meaning of the words.2

Wigram's Proposition V. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator or to determine the quantity of interest he has given by his will.

The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator's words.3

Wigram's Proposition VI. Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases, see Prop. VII) will be void for uncertainty.

2 Doe v. Roe, I Wend. 541, 548; Ryerss v. Wheeler, 22 id. at p. 150; Colwell v. Lawrence, 38 Barb. 643; Dana v. Feedler, 12 N. Y. 40; Collender v. Dinsmore, 55 id. 200, 206; cf Matter of Hopkins, 172 id. 360.

3 Shulters v. Johnson, 38 Barb. 80; Myers v. Eddy, 47 id. 263; Martin v. Pine, 79 Hun, 426; Bumpus v. Bumpus, 79 id. 526; Benjamin v. Welde, 73 id. 371; Connolly v. Pardon, 1 Paige, 291; Wolfe v. Van Nostrand, 2 N. Y. 436; St. Luke's Home v. Ass'n for Indigent Females, 52 id. 191; Kiah v. Grenier, 56 id. 220; Underhill v. Vandervoort, 56 id. 242; Lytle v. Beveridge,

58 id. 592; Kerr v. Dougherty, 79 id. 327, 348; Delaney v. Van Aulen, 84 id. 16, 26; Hutton v. Benkard, 92 id. 295, 301; Stimson v. Vroman, 99 id. 74, 79; Byrnes v. Stilwell, 103 id. 453, 458; Matter of Wells, 113 id. 396, 401; Ritch v. Hawxhurst, 114 id. 512; Morris v. Sickly, 133 id. 456; Chace v. Lamphere, 148 id. 206, 211; Wade v. Holbrook, 2 Redf. 378; cf. Thayer, Preliminary Treatise on Evidence, 445, 446.

4 Mann v. Executors of Mann, I Johns. Ch. 231, 235, affd., 14 Johns. 1; Reynolds v. Robinson, 82 N. Y. 103, 106; Fries v. Osborn, 190 id.

35.

Wigram's Proposition VII. Notwithstanding the rule of law, which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning-courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose.

These cases may be thus defined: Where the object of a testator's bounty, or the subject of disposition (i. e., the person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things was intended by the testator."

How far the foregoing rules, formulated by Sir James Wigram and purporting to be taken from the cases, are absolutely inconsistent with the well-known maxim of Bacon's, "Ambiguitas verborum latens virificatione suppletur; nam quod ex facto oritur ambiguum verificatione tollitur", has been much discussed." Under Bacon's maxim, it is commonly said, "that a patent ambiguity is never helped by averment whereas in regard to a latent ambiguity it is otherwise." But this maxim was a rule of pleading, and not a rule of evidence, and confined to pleading it is probably a correct rule. Sir James Wigram's Rules have not special reference to ambiguity. They relate to construction. A written instrument is not ambiguous, because an ignorant or uninformed person cannot construe it or interpret it. It is ambiguous only if found to be of uncertain meaning, when persons of competent skill and information are unable to do so."

Before the reader shall attempt to apply any of Wigram's Rules in practice, it may be well to consider them with reference to Pro

5 Lefevre v. Lefevre, 59 N. Y. 434; Reynolds v. Robinson, 82 id. 103, 107; Gallup v. Wright, 61 How. Pr. 286; and see I Spence Eq. Juris. 553 seq.

Thayer, Prelim. Treatise on Evidence, 42, 422, 471, 482, 599, 600;

cf. Tillotson v. Race, 22 N. Y. 122, 126; Reynolds v. Robinson, 82 id. 103, 107.

7 Wigram, Extrins. Ev., 174; I Spence, Eq. Juris. 562; Thayer's Prelim. Treat. on Evidence, 471, 473, 482.

fessor Thayer's elaborate survey of these Rules in his learned Preliminary Treatise on Evidence at the Common Law. In that author, the reader will be sure to find certain qualifications, which will prove both helpful and suggestive in the application of Wigram's seven rules.8

Effect of Surrogate's Decree. The effect of a surrogate's decree refusing probate to a devise is not conclusive." The effect of a surrogate's decree admitting a will of personal property to probate has been adverted to elsewhere.10

8 Thayer's Preliminary Treatise on Evidence at the Common Law (Boston, 1898), 404, 445, 447, 473, 482, 594.

9 Dixon v. Cozine, 64 Misc. 602, and see pp. 40, 46, supra.

10 Supra, p. 94; and see below.

§ 22. Witnesses to will to write names and places of residence. The witnesses to any will, shall write opposite to their names their respective places of residence; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or incapacitated on that account, from testifying respecting the execution of such will.

Formerly 2 R. S. 64, § 41:

41. The witnesses to any will, shall write opposite to their names their respective places of residence; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or incapacitated on that account, from testifying respecting the execution of such will.11

Comment. The old New York Statute of Wills, like its prototype, the old Statute of Frauds, contained no such regulation in regard to the necessity of attesting witnesses affixing their places of residence.12 But if we refer to Mr. Humphrey's proposals for reforms in the old law13 (proposals always very potent with the revisers of the Revised Statutes) we shall find that he first suggested that attesting witnesses should affix their "residences and stations in life." The quasi-public character of attesting witnesses to a will was then beginning to be recognized in England, and although the English law differed much from the Roman law in respect of the necessary requirements to qualify such attesting wit

11 Repealed, § 130, Decedent Estate Law.

12 2 R. L. 364

13 Humphrey's Real Prop. (London ed. 1827), p. 269.

nesses,11 it was thought reasonable to require some evidence of their actual existence.

The statute has been only lately considered and the unconstitutionality of its penal feature invoked, but not passed on. The dissenting opinion seems to express a very restricted view of the power of government to regulate such an important act as a final disposition of property by last will and testament, and there is little recognition given to the quasi-public aspects of transfers of title by last wills and testaments.15

146 Inst. 2, 10; Fr. 14, D. 22, 5; Const. 3, C. 17; Const. 4, C. 1. 5.

15 Dodge v. Cornelius, 168 N. Y.

242.

Cf. supra, pp. 127, 128, under 21, Decedent Estate Law.