Page:Harvard Law Review Volume 12.djvu/65

Rh JOINDER OF CLAIMS UNDER ALTERNATE AMBIGUITIES. AMBIGUOUS gifts in wills are treated with very scant courtesy by the English courts. Unless the ambiguity can be re- moved by extrinsic evidence, the gift fails to take effect; the principle being that an unambiguous disposition is necessary to defend the title of the heir at law, next of kin, residuary devisee or legatee, or person entitled in default of appointment There are many cases, however, in which the ambiguity is very lim- ited in extent. It may be twofold, threefold, or manifold, but it is quite clear that the testator meant one of a definite number of persons, things, or events. At first sight it would seem that if it were possible to join the claims under these ambiguities, an unan- swerable dilemma, trilemma, or polylemma would be presented to the court. It is, therefore, necessary to inquire on what principle the court acts in refusing to allow such a joinder. Such dilemmas are treated with the same severity as the ox too wont to push with his horn in the days of Moses. Why is this } The lawyer's answer is quite ready. An ambiguity is a mere zero or cipher, i. e. nothing at all ; and no number of ciphers can amount to the unity which represents a complete gift. This answer, if accepted, completely disposes of the question. But might not a layman of average intelligence, coming fresh from Lord Esher's Farewell to the Forum, deeply imbued with the idea that law is after all the quintessence of common sense and logic combined, put the case in some such way as this? "An ambiguity is not necessarily a cipher. It is either a cipher or unity ; and in that ambiguous condition it is no doubt ineffectual as against the heir or next of kin. But the sum of all possible ambiguities amounts to unity ; and if they are all represented by claimants who are sui juris and can join their claims, why should not effect be given to the unity thus obtained? In that way the testator's intention would be far more nearly carried out than by the present practice, which is really illogical. Suppose there are three possible ambiguities, x, y, z^ which are mutually exclusive.