
    John C. Patterson v. S. W. Leith, Executor of William Patterson.
    Parol evidence is inadmissible to explain a will except in a case of latent ambiguity. [*16]
    A bequest in these words, “it is my will that the sum of one hundred and fifty dollars, be paid out of the profits, or moneys arising out of my estate, to my son. J. 0., as a maintenance for him, for and during his natural life and no longer,” held to be an annuity. [*16]
    Colleton. Before Chancellor Johnston, who delivered the following-decree :
    The bill in this ease is filed to establish as an annuity, a legacy left by the defendant’s testator to the plaintiff, the bequest of which is in these words : “ It is my will, that the sum of one hundred and fifty dollars be paid out of the profits or moneys arising out of my estate, to my son John C. as a maintenance for him, for and during his natural life, and no longer.” The answer admits the bequest, but denies that it was intended as an annuity, and contends that it is a mere pecuniary legacy for that gross sum.
    *1 fil *Upon the trial, the defendant’s counsel offered as a witness the defendant, S. W. Leith, to prove that he drew the will, and to testify as to the intention of the testator. He was objected to by the counsel for the plaintiff, and the Court sustained the objection, because such testimony was considered as inadmissible as mere parol introduced to explain the intent of a will, and because the witness was a party to this suit, and the only defendant on the record.
    The defendant’s counsel then offered Malachi Ford as a witness, to show the circumstances of the plaintiff at the time of the testator’s death, with a view to ascertain the intention of the testator. He was excluded for the reason first above stated.
    The canse was then argued on the bill and answer, and submitted to the judgment of the Court. Upon examination of the clause of the will, under which the plaintiff claims, it will be observed that the sum of one hundred and fifty dollars is to be paid from “ profits or moneys” arising from the estate. The counsel has cited a number of cases, in which it has been decided that the natural sense of these words is “ annual profits and I think such a construction of the present bequest is much strengthened by the other words used in it. For the testator not only bequeaths this sum as a maintenance for Ms son, but he declares that it is to be for his natural life and no longer. Now, maintenance would seem to imply that it is to be furnished from time to time as occasion would call for it — the maintenance of the son could not be accomplished by a single payment, it necessarily required a new payment so often as each year of his existence exhausted that which had been applied the preceding year. Besides, why declare that it should be for his natural life and no longer! Are not these words “ no longer,” a clear expression of what was in the testator’s mind, and is it not obvious that he must have contemplated a series of payments which were only to be interrupted by the death of his son. These considerations lead me to conclude that the bequest is an annual sum for maintenance.
    It is therefore ordered and decreed, that it be referred to the Commissioner to ascertain the amount due to the plaintiff, for any arrears in the payment of the said sum of one hundred and fifty dollars annually, to the plaintiff, allowing interest thereon from the end of every year during which the same was in arrear, and that so much of the amount so found due be paid with the costs of suit to *the plaintiff’s solicitors by the defendant, as the Commissioner shall report sufficient to pay ‘ their costs and fees, and the remainder be paid to the plaintiff'; and that the defendant be allowed the same from the estate of his testator. It is further ordered and decreed that the sum of one hundred and fifty dollars be hereafter paid annually by the said executor into the proper hands of the said plaintiff, to be applied by him towards his maintenance and support.
    The defendant appealed from this decree on the grounds :
    1. That Dr. S. W. Leith, who is a mere naked trustee, and admitted to have no interest in the event of the suit, was rejected as a witness.
    2. That defendant was not allowed to examine Mr. Ford and. other witnesses to prove that the testator’s bounty must have failed because of his insolvency, had he intended to give the plaintiff an annuity.
    3. That the will only gives the plaintiff the sum of one hundred and fifty dollars, and not an annuity of that amount.
    
      Elmore, for the appellant,
    cited 2 John Ch. 550, 625-6 ; 3 lb. 566 ; 5 lb. 95; 2 Fonb. 464, 451.
    
      Memminger, contra,
    on the two first grounds, cited 4 M’C. 24 ; Phil. Ev. 414 ; Westbrook v. Harbison, 2 M’C. Ch. 112. On the last ground he cited, 2 P. W. 18; IP. W. 219 ; 2 Yes. Jr. 481, note; 2 Yes. & B. 65.
   O’Neakd, J.

The two first grounds of the motion may be considered together; for, notwithstanding the first ground presents a distinct question whether Dr. Leith, as the defendant in the cause, was competent, yet it will not be necessary to decide that question, if we should be of opinion that, even if he was a competent witness, still that his testimony, as well as that of the other witnesses mentioned in the second ground, is inadmissible.

It certainly is too late to be now disputed that parol evidence is inadmissible to explain a will, except in the single case where there is a latent ambiguity. In such a case, the ambiguity is always created by parol, and may be removed by parol. There is no ambiguity in the clause of the will under consideration; the testator’s words must declare his intention. They are to be construed by *the Court and if there is any doubt as to the'eonstruction, it must be decided and removed by legal rules, and not by parol evidence. The testimony proposed to be given by Dr. Leith and the other witnesses, was clearly inadmissible, and was property rejected by the Chancellor.

On the third ground, involving a construction of the clause of the testator’s will, under which the plaintiff claims, I agree with the Chancellor, that the plaintiff is entitled to an annuity of one hundred and fifty dollars. The reasons of the Chancellor are perfectly satisfactory to my mind, and I will add to them a single authority with a few additional remarks. In Ivy v. Gilbert, 2 Pr. Wms. 19, the Lord Chancellor said ; “ The natural meaning of raising a portion by rents, issues and profits, is by the yearly profits.” If this be so, does not the same meaning most clearly apply to the words used in the will under consideration, “ the profits or moneys arising out of my estate.” They seem naturally to imply a fund which would not break on the capital, such as annual rents or interest. For they must “arise out of,” spring from, or be produced by it. The sum bequeathed is for maintenance. The legal import of maintenance is, support from time to time, and in the case of minors, whose maintenance is provided by trustees, the rule is well settled; that the interest on money at interest, or the annual profits of an estate is the proper fund out of which it is to be allowed. Construing the testator’s will, in reference to these known rules of law, and supposing him to have employed his words intending that they should be explained and understood according to their legal meaning, there can be no difficulty in concluding that he intended to give to his son, the plaintiff, an annuity of one hundred and fifty dollars, In the absence of everything in the will to show that the testator used words having a fixed legal meaning, in a different sense, we are compelled to conclude, that he used them in their proper legal sense.

Is is therefore ordered and decreed, that the Chancellor’s decree be affirmed.

Johnson and Harper, Js., concurred.  