Page:United States Reports, Volume 2.djvu/77

 Pbdadeqebia Coorrr or Common Paras. 7l ed, and admitted, to {hew,'that though the legacy was bequeath- r79•. ed to Samuel Powell, it was, in faét, intended or the plaintii} vars! whofe chrillian name is lf7Iliam : And a verdiéi was, thereupon, allowed to he taken in favour of the plaintill, for the principal · fum, and interelt; fubjeit to the opinion of the Court, on a · rule to lhew eaufe why there lhould not be a new trial. The I fa&s proved were, that Wiliam, the plaintid, had attained the age of 2l years; that he was the younger lon of the teltator’• . deeeafed daughter, who had been married to Samuel Powell, the carpenter, named in the will; that he was well known to the teltator; and that the teliator ufually, by miliake, or by way of nickname, called him Samuel; but that Samuel Powell, · the carpenter, had another fon, a mafon, whofe name was a Ru- ally Samuel, the iil`ue of a fecond marriage, and with whom the teliator had no conneflzion, or acquaintance, whatever. » On arguing the motion for a new trial, hy Iugerfall for the plainrii}, and Myliu »_fcr the defendant, it was agreed on both {ides, that the mifnomer was merely a milltalte; but nevertheleck it was contended jbr the dzgnczant, that the evi- dence to prove it, ought not to have admitted; for, whatever might be the diveriity of decilions under other cir- · cumllancesa, it was alledged, that in no inftance had a lega. cy been awarded contrary to the exprefs delignation of the- will, when a perfon of the name and defcription of the legatee exilted, capable of taking the bequelt. Parol proof can never be allowed to fupply the intent of the teltator, in a trial before a jury; though it is fometimes received on queliions before the court, to inform the confciences of the judges. r. Eq. Abr. 230. 3. Clam. Rep. 176. 2. Atl. 21S. 3. P. Wm. 253. 2g4. 9. Jllul. rr.2. Vern. 98. 252. 337.62;. go6. 2.Freem. gz S. 60.8. Vin. dor. 198. 8.39. Nor will evidence ever be admitted to contra- diet a will, though, in cafes of neccility,*it may be received, to aleertain a perfon meant, where there are two perfons of the fame name, or where a man has been ufually called by ,1 nick-name. 2 Atl. 239. 372. 2 P. Wm. r4r. For the Phintif, it was {aid, that the rule which excludes the interpretation o deeds and wills by evidence deborr, mult, like all general rules, be liable to reafonable exceptions. If, for inliance, a refulting ufe would arife by implication;parol telli- mony may be admitted to rebut the implication. So, likewife, in the cafe of an executor, the intention of the tefiator refpeft- ` ing the difpolition of his reliduary perfonal eltate, may be proved by extrinlic evidence. If, however, the controverfy arole upon the will itfelf, the court would, probably, be incli- ned to conlinc their conllruélion to the terms of the inllrument; but when the dilliculty proceeds from a faét, independent of the will, it mult be obviated by the ordinary means, employed ’ ~ ' I0

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