
    Thomas F. Taylor et al. v. John Boggs et al.
    
    
      1. A testator devised all of his “home-farm” to his widow. Ia an action hy the residuary devisees to recover land which the defendants claimed. under the devise, as part of the home-farm, declarations of the testator, that he had received a large part of his means from the ancestor of the* plaintiff, and that, in consequence of such aid, he intended to will the premises in question to them, cannot be given in evidence as showing the extent or boundaries of the farm.
    2. In the admission of improper evidence on the part of the defendants, ' which operates only to rebut evidence improperly introduced by the plaintiffs, there is no error to the prejudice of the latter.
    S. In determining the extent of the home-farm, the situation of the land, the manner in which it had been used and treated, are proper subjects of inquiry ; but hearsay or neighborhood reputation cannot be resorted to.
    4. Where the bill of exceptions does not profess to set out all the evidence, nor all the facts which the evidence of the plaintiffs tended to prove, if improper evidence was allowed to be introduced by the defendants, which was calculated to mislead the jury, to the prejudice of the plaintiffs, the court cannot say, on error, that no prejudice resulted.
    Error to the court of common pleas of Muskingum county. Reserved in the district court.
    The plaintiffs in error, who were plaintiffs below, filed their petition in the court of common pleas to recover certain real estate of which the defendants were in possession.
    Both parties claim under the will of James Taylor, deceased.
    The title of the defendants is derived under the following clause of said will:
    “ Mrst. I give and bequeath unto my beloved wife, Jane Taylor, the whole of my home-farm where I now reside, as an estate in fee-simple.”
    The plaintiffs derive title under the sixth clause of the will; and it is admitted that if the land in controversy did not pass to Jane Taylor, the widow of the testator, as part of his home-farm, under the clause of. the will above quoted, the plaintiffs were entitled to recoyer as devisees of the residue of the testator’s real estate.
    The sixth clause is as follows:
    
      “Sixth. After the death of my beloved wife, Jane Taylor, I direct that all my estate, real, personal, and mixed, except my home-farm, my spring lot, my upper place, and the Ryan farm, as above provided, be divided, share and share alike, between the lawful children of my nephew, Grundo Taylor: provided, however, no such division be made until the youngest child of my said nephew, Grundo Taylor, shall have arrived at tlie' age of twenty-one years.”
    It appears from the bill of exceptions that, on the trial, the plaintiffs gave evidence tending to show that, prior to the* year 1826, Captain James Taylor was the owner in fee-simple of a body of land, within which' is embraced the lands described in the petition, and had sold and conveyed the same to John Boyd and Joseph Boyd, and that the Boyds had made partition of the same between themselves, by their deeds executed and delivered in that behalf, which deeds were also given in evidence, and that thereafter the Boyds occupied and farmed the several parcels separately as two farms; that afterward, and in 1826, Captain Taylor took back the title to most of the lands by a decree of court, and, in 1826, went back into the possession of both the farms, he residing upon-the farm formerly owned by John Boyd; that the portion formerly owned by Joseph Boyd was a complete farm, and abutted upon the farm formerly owned by John Boyd; that from the year 1826, when Captain Taylor went back into the possession of the premises, till his death, in March, 1843, he used and denominated- the two parcels as-two separate farms, calling the lands claimed by the plaintiffs in their petition the “ Jo. Boyd farm.”
    The plaintiffs also introduced evidence tending to show that Captain Taylor, in his lifetime, and before the making of the will, said he had received his means, or a considerable portion of it, from George Taylor, the father of Grundo Taylor, and brother of Captain Taylor, and that GeOrge Taylor had willed all his property to him, Captain Taylor ; and also that he intended to will said “ Jo. Boyd farm ” to Grundo’s children, and to provide for, and will all his property to, Grundo and his children, in consequence of the aid he had received from George Taylor.
    The defendants, to maintain the issue on their part, amongst other things, called John Peters, and proposed to prove by him that the body of land so owned by Captain Taylor at his death, including the “ Jo. Boyd farm,” had a neighborhood reputation, and was generally known and spoken of in the neighborhood, from 1826 to the death of said Taylor, in March, 1843, as the “ Capt. Taylor farm,” and that the witness had never heard it spoken of as two farms. To the introduction of which evidence the plaintiffs objected; but .the court overruled the objection; and the testimony was received, and plaintiffs excepted.
    The defendants further called John M. Lane as a witness, and asked him if he knew by what name the body of land-owned by Captain Taylor, at the time of his death, including the land claimed in this case, was generally known in the neighborhood, from the year 1826 to the death of Captain Taylor in 1843. To which the plaintiffs objected; but the court overruled .the objection ; and the witness stated he had only heard the same spoken of as the “ Capt. Taylor farm.” Thereupon he was asked by counsel for defendants, if he had ever heard the same spoken of as two farms. To which the plaintiffs objected; but the court overruled the objection ; and the witnéss answered that he had never heard the same spoken of as two farms. To the admission of which evidence the plaintiffs excepted.
    The defendants also, amongst other things, offered in evidence a certified copy of the will of said George Taylor, father of Grundo Taylor, and a transcript of the proceedings and certificates thereto attached. When the counsel for the plaintiffs inquired of counsel for the defendants, for what purpose it was desired to put in evidence said will, they answered that it was for the purpose of showing the extent of the means of George Taylor, and to show that Captain Taylor received nothing from the estate of George Taylor; whereupon the copy of said will was read in evidence; and counsel for plaintiffs objected to giving in evidence said transcript and certificates; but the court overruled the objection and allowed said transcript and certificates to be given in evidence; to-which ruling of the court the plaintiffs excepted.
    It also appeared from this will that Grundo Taylor was the-illegitimate son of said George, of which fact, the bill of exceptions states, said will was the only evidence. The fact of the illegitimacy of Grundo the jury was allowed to consider as evidence in the case.
    One of the instructions asked by the plaintiffs’ counsel to be given to the jury, is as follows :
    “ While the fact may be considered that this land was all in one body, and that the whole of it was sometimes spoken of by the neighbors as the ‘ Capt. Taylor farm,’ yet this is not necessarily to exercise a controlling influence in the decision of this case; and if the jury shall be satisfied that, notwithstanding the fact that the land was in one body, and the whole body was sometimes spoken of as the Capt. Taylor farm,’ Capt. Taylor intended the words home-farm’ to apply to a part only of the lands as situated in a body; in that case the jury is bound to give effect to the intention of Capt. Taylor; to give effect to the words home-farm in the sense that he intended to use them, and therefore find for the plaintiffs.” But the court refused so to charge the jury without qualifying as the same is qualified in the charge given; to which ruling of the court the plaintiffs excepted.” The bill of exceptions contains the whole of the charge of the court, but only so much of it is here stated as is necessary to an understanding of the decision of this court.
    • In summing up the evidence to the jury the court, among •other things, said:
    
      “ Evidence has been offered tending to establish that Capt. Taylor received such aid from his brother, the father of Grundo Taylor, that he said at various times that he owed all he was worth to Grnndo’s father; the will of George Taylor, and,certain proceedings under it, have been put in evidence; that Capt. Taylor had no children; that Capt. Taylor received but little property with his wife; that $800 of his wife’s share of her father’s estate was invested by Capt. Taylor’s direction in bank stock in her name, he adding some $200 of his own money in order to make her the owner of $1,000 of stock; that Grundo married, had a number of children, etc.; that Grundo was the illegitimate son of the testator’s brother; that Capt. Taylor gave him a farm on Jonathan’s •creek; that this farm was sold, and all the proceeds, except a horse and wagon, applied on the 482 acres; that the Pelham lot and two other lots of the “ Burgh ” were bought and fenced in with the other farming land, making about 482 acres.
    “ Evidence has also been offered tending to show the neighbors spoke of this land as being one or more farms.”
    In prescribing the rule to guide the jury in determining whether the land in controversy constituted part of the home-farm devised by the first clause of the will, the court used the following language:
    “ If you find that, up to the date of the will, Capt. Taylor -dealt with and talked about, etc., this 482 acres as two farms, and also find that the 482 acres have acquired among the neighbors, as I have described, a distinct, definite reputation as one farm, or as his ‘ home-farm/ then you must decide, from all the evidence I have told you was properly before you, referring particularly to his declaration of intention, the circumstances surrounding the testator at the time of making the will, the property he had, how and when acquired, the objects of his bounty, his family and relations, and his relation to them, the value of the provision made for his widow by the law as compared with the one made by the will under either interpretation of it, in which sense Capt. Taylor used those words, whether he used them in accordance with his own mode of dealing with the land, or in the neighborhood meaning.”
    At the end of the charge an exception is taken in the following language:
    “ To which charge so given, and to every part thereof, the plaintiffs excepted, and prayed the court to sign and seal this their bill of exceptions in such behalf, and make the same a part of the record in this case; all which is accordingly done.”
    The verdict and judgment were for the defendants.
    The plaintiffs now assign for error, among other things, that the court erred in admitting in evidence the neighborhood reputation as testified to by Peters and Lane; in admitting in evidence the transcript of. the proceedings and certi ficates to the will of George Taylor; in refusing to charge as asked, and in the charge as given; and in saying to the jury that the will of George Taylor was evidence of the illegitimacy of Grundo Taylor.
    
      Lucius P. Marsh, for plaintiffs in error:
    The question litigated below was upon the construction of a clause in the -will of Capt. Taylor, the clause being, “ the whole of my homefa/rm tohere I now reside.”
    I may here remark, that the words, “ the whole of” do no't aid us in construing the clause, for the reason that they are used of every parcel specifically devised by him, viz.: “ The whole of my home-farm,” “ the whole of my lot.. . . known as Capt. Taylor’s spring lot,” “ the whole of my farm called the upper farm.” The thing to be ascertained is the intention of the testator. The terms of the will, “home-farm where I now reside,” are clear and unambiguous ; they are made uncertain by extrinsic evidence; the uncertainty thus created may be removed by extrinsic evidence. Phil, on Evidence (4th Am. Ed.), p. 636 et seq.; Wigram on Wills, 11, 14; Doolittle v. Blakesley, 4 Day’s R. 265. In the last ease the words “ home-farm ” are construed, and their application ascertained; and see Hatch v. Hatch, 2 Hayw. 32; Venable v. McDonald, 4 Dana, 336; Painter v. Painter, 18 Ohio, 265; and Ashworth v. Carlton, 12 Ohio St. 381.
    It is here complained that the court below admitted improper evidence, and erred in its charge to the jury.
    The plaintiffs having given evidence tending to prove their case, the defendants then put in evidence the testimony of Peters.
    I submit that the question made and sought to be solved by proof is this: what did Capt. Taylor mean and intend by the use of the words “ home-farm where I now reside ” % what land in his mind did the term “ home-farm ” cover and include ? It is not competent to arrive at his meaning, his intentions, by proving what his neighbors called or denominated the entire tract. He doesn’t say of his home-farm What he says of his “ spring lot: ” of the latter he says “ the lot called Capt. Taylor’s spring lot,” i.e., “ that is the name by which it is generally known.”
    It may be that in the case of the “ spring lot ” it would be-competent to prove that a lot had a neighborhood reputation as “ Capt. Taylor’s spring lot.” He says the same of the- “ upper farm : ” “ the farm called my upper farm.”
    He does not say of the farm devised to his wife “ the farm called my home-farm,” but “ I devise the home-farm where I now reside,” etc. He points out the way and means of identifying it: “ the farm where I now reside.” He doesn’t profess to adopt any general or particular name by which the farm is generally known. He doesn’t say “blackacre,” or “ spiting lot,” but “ the farm where I now reside,” “ my home» farm.” I submit that it is not competent to prove that by general reputation the whole body of land was known as “ Capt. Taylor’s home-farm.”
    But if such proof be competent, it must be limited to general reputation; it must be proof that a body of land had in the neighborhood a name at least synonymous with the words-used in the will, and the witness must first qualify himself, must show that he has the means of knowing that reputation, before he can say what it is.
    My objections, then, to the testimony of Peters are as-follows:
    1st. He doesn’t show he was qualified to testify of the general reputation.
    2d. He doesn’t say that this body of land or any part of it; had any name by general reputation.
    3d. The name he gives the whole parcel is, “the Capt. Taylor farm.”
    4th. "Witness had never heard it spoken of as two farms.
    What is said of the testimony of Peters may be said with more force of the testimony of Lane, admitted in evidence,, under objection.
    He is asked the direct question whether he had ever heard the body of land spoken of as two farms; to which he answers he has not.
    H it be true that these witnesses have testified substantially to a general reputation, and if this court will presume they were qualified to do so, the name which such reputation gives 'this land is “the Gcupt. Taylor farm” not the name which -the testator gives in his will; he says “ my home-farm where I now reside,” while the witnesses say the whole parcel was, as far as they knew, generally called “ the Oapt. Taylor -farm.”
    It is here substantially put to the jury,,that unless there were two farms, the home-farm covered it all; and that if nobody had spoken of this body of land as two farms, Capt. Taylor intended, in the use of the term “home-farm,” to cover it all. If a part of the land constituted the home-farm, we were entitled to recover the balance, whether that balance was a farm or not.
    
      We may have come short in our proof of establishing the second farm in the tract, while we may have proved that the “ home-farm” covered only that part of the tract not de-scribed in our petition.
    It may be true that where there is doubt as to the sense in which a testator uses a word or phrase, his intention may be ascertained by proof of general reputation in the neighborhood as where he uses a provincialism, used in different -localities in a different sense; but that isn’t this case. He says my “home-farm; ” what did he mean and intend?
    It cannot be said, that it does not appear (admitting all I claim) that the plaintiffs are prejudiced thereby. If hearsay evidence is objected to and permitted to go to the jury, the judgment must be reversed unless it affirmatively appear in the record that the party is not prejudiced thereby. Wilson v. Barkalow, 11 Ohio St. 470; Lowe v. Lehman, 15 Ohio St. 179.
    The court erred in admitting the transcript of the proceedings and certificates attached to the will of George Taylor. They were not competent evidence for the purpose for which they were introduced.
    But is it competent for the defendants to prove the extent of the means of the grandfather of plaintiffs, and that the testator under whom plaintiffs claim toot noticing of his bounty by the terms of his will, or otherwise?
    It cannot be said that such proof becomes competent by reason of the failure of plaintiffs to object to the reading of the will. If a party expressly consents to the admission of one item of improper testimony, is he therefore bound to-allow to go to the jury all the improper evidence that is-offered ? Here, if the will of Geo. Taylor was improper evidence, it simply went in without objection; there was no express consent.
    It cannot be claimed either, that because the plaintiffs proved the declarations of Capt. Taylor; that he got money from Geo. Taylor’s estate; that all he was worth he owed to-the father of Grundo, and that he was consequently under obligation to provide for the children of Grundo, therefore-defendants might prove that George had no estate, or but a small one, and that Capt. Taylor got -nothing from it.
    It was not competent to prove the illegitimacy of Grundo-Taylor, the father of the plaintiffs. Such proof did not tend to illustrate the issue — to show what was the “ home-farm ” in. the intention of Capt. Taylor. Such proof was not only not competent, but was prejudicial to the plaintiffs.
    But if the fact of illegitimacy could be proved, the will of George Taylor was not evidence of it. A man may not bastardize his offspring, or any of- them, who may incur his displeasure, by saying, in his will, that they are illegitimate. The statement of the ancestor, not wider oath, is not competent evidence because it happens to be in a will.
    The court erred in refusing to charge the jury as requested by plaintiffs in regard to the effect to be given to the words “home-farm,” and the intention of the testator in using them.
    The court erred in the charge given to the jury.
    
      Hunter & Daugherty, for defendants in error:
    The question of right between the parties depends upon-the meaning and effect of the words: “ The whole of my home-farm where I now reside,” as applied to the land in his-possession at his death. The first effort of the counsel for the plaintiffs, in his argument, is to destroy the effect of the qualifying word “ whole” in the description of the thing devised, and this he essays to do at a dash, as though it were a mere trifle, scarcely worthy of notice.
    His argument is, that the repeated use of the phrase as applied to different things impairs the effect it might have if •only used once. Doubtless, as applied to the home-farm, and in view of the character of the claim asserted by the plaintiffs, the phrase has a most pertinent effect.
    If the testator had a “ home-farm ” it was the lands he took hack from the Boyds and occupied as one farm from the year 1826 to the time of his death, March 20,1813, and in devising it to his wife, for convenience of description, and to distinguish it from another farm called his “ upper fa/rm”' he called it his home-farm.” That “home-farm” — certainly none other —he devised to his wife — the “ whole ” of it. And the word “ whole ” was evidently used to exclude any question that might otherwise be raised as to the extent of the subject-matter intended to be devised; and the only extrinsic fact necessary to be shown by proof outside of the will, to establish the right of the widow as devisee to the “ whole of the .homefa/rm” would be such as would identify the farm on which the testator resided at the date of his will, and according to the original public surveys, or other known metes and bounds, what would be its description according to a proper .survey. This done, there would not be any ambiguity; and the effect would be as certain as if such description, according to a proper survey, had been embodied in the devise. And any attempt on the part of the plaintiffs to limit the. legal effect of the descriptive terms of the devise thus ascertained, to apart only of such farm, by extrinsic evidence of declarations by the testator, madq prior to the making of his will, as to the disposition he intended to make, by will, of the farm, or any part of it; or made subsequently to the making of the will, as to what his intentions were by the language used in it, would, upon well-understood principles of law, be wholly inadmissible.
    Undoubtedly, parol evidence would be admissible from either and each of the parties upon the question as to what farm was known as the testator’s “ home-fa/rm,” and as to what lands were included in the “ whole ” of it.
    The testimony of Peters and of Lane stands upon the same ground, and was both competent and l'elevant. It was competent to show, by proof extrinsic of the will, what land was known as the testator’s “ home-farm.” And such proof may be, 1st, declarations of the testator; or, 2d, by reputation amongst people, of the vicinity. As to the competency of such evidence, see Anstee v. Nelms, 1 H. & N. (116) 124; 1 Redfield on Wills (3d Ed.) 630, 631; Hand v. Hoffman, 3 Halstead (N. J.), 71.
    But even if this testimony was improperly admitted, it is not the duty of this court to reverse, unless it appears that the error has been to the injury of the plaintiffs. Eugler v. Wiseman et al., 20 Ohio, 376-7; Steamboat Albatross v. Wayne, 16 Ohio, 513; cases cited in argument of counsel in Choteau et al. v. Raitt, 20 Ohio, 137 (viz., 6 Mass. 445; 17 Conn. 288; 17 Verm. 499; 10 Verm. 520; 11 Mass. 417; 20 Pick. 471; 4 Pick. 25; 9 Pick. 46; 24 Pick. 181; 11 Pick. 322; 11 Conn. 342; 4 Verm. 471); Banning v. Banning, 12 Ohio St. 455; McDougal v. Fleming, 4 Ohio, 388; Osborn v. The State, 7 Ohio, pt. 1, 214; Scovern v. The State, 6 Ohio St. 288; Stephens v. The State, 14 Ohio, 386; Creed v. Com. Bank, 11 Ohio, 489: Loudenbank v. Collins, 4 Ohio St. 251, 262; Hickman v. Jones, 9 Wallace, 197; Barney v. Schneider, Ib. 248.
    It is true the record does not purport to bring before this court the whole of the evidence given to the jury; but the bill of exceptions sets forth what facts the evidence gimen tended to prove; and what facts evidence offered to be given, and which was overruled on being objected to, tended to prove; and what facts evidence objected to and admitted, the objections being overruled, tended to prove. The state of the record, therefore, is such as admits of the fullest inquiry whether the court below erred in its rulings in admitting or rejecting evidence, and in its instructions to the jury.
    
      It does not appear that the plaintiffs were prejudiced by the matter objected to; but, aside from it, the record shows-that a case for recovery was made in behalf of the defendants.
    The language of the devise to the wife is clear, plain, and unambiguous upon the face of the will; and no latent ambiguity was brought to view, by evidence of extrinsic facts proved, or attempted to be proved by the plaintiffs, that would not, if effect were given to it, alter, change, or modify the terms as written. Such evidence is incompetent, in law, to be used for such purpose; and although it was introduced by the plaintiffs and given to the jury, without being formally objected to by the defendants, it was nevertheless proper and the legal duty of the court in its instructions to the jury, to advise them that it was their duty to disregard all such evidence, in ascertaining the intention of the testator, and look only to the language of the will, as construed and given in charge to them by the court, save only, that, if under the instructions of the court they should find the subject of the devise to the testator’s wife, to wit: “ The whole of my home-farm where I now reside,” to be ambiguous in respect to-what lands were included within said terms of description, they should then, upon the other evidence, inquire and find according to the truth whether the lands claimed by the plaintiffs were or not included in said devise, and render their verdict accordingly, in favor of or against the plaintiffs.
    See Jackson ex dem. Van Vechtin and others v. Sill and others, 11 Johns. 202; Collins v. Hope, 20 Ohio, 501; 1 Redfield on Wills (3d Ed.), 594-665, note 2, pp. 597, 598, commenting on the ease of Selwood v. Mildway, 8 Ves. 306; note 47, p. 622, commenting upon the remarks of Lord Brougham in Langston v. Langston, 2 Cl. & Fin. 240.
    The charge which counsel for the plaintiffs asked the court to give to the jury in regard to the effect they were bound to give to the words “ home-farm,” etc., was properly qualified by the court.
    The plaintiffs having, without objection on the part of the defendants, given incompetent evidence of declarations mad*e by the testator expressive of his intention to will the “Jo. Boyd farm” to Grundo’s children, in consequence of aid he had received from his brother George; and that. George Taylor had devised and willed all his property to-him, the testator, etc., the defendants properly gave evidence tending to disprove the truth of the fact that George-Taylor, the testator’s brother, had devised or willed his property to the testator. The evidence offered for that purpose was an authenticated copy of the record of the probate of George Taylor’s will, including a copy of the will.
    The will having been read in evidence, without objection-by the plaintiffs, the plaintiffs could not have been prejudiced by the transcript and certificates attached to the will to-verify it. The will being admitted without question, its-verification was immaterial.
    In respect to the question of the illegitimacy of Grundo Taylor, all that need be said about it is, that it is so stated in-the will of George Taylor ; and if the will was in evidence,, that part of it, with the balance, was before the jury without objection, and, so far as appears, without any use being made-of it, except to show that Grundo Taylor had no legitimate claim upon Captain Taylor, the testator. Eor that purpose,, and in the way of rebutting any such claim, it surely was.legitimate.
    
      A. G. Thurman, also, for defendants:
    It is said that the court erred in admitting in evidence the testimony of Peters and of Lane.
    The testimony was properly admitted, or it was immaterial and did not prejudice the plaintiffs.
    It was admissible unless the extrinsic evidence should have-been restricted to th q physical facts in the case.
    These physical facts, as shown by the tendency of the plaintiff^ evidence, and not controverted by the defendants, were:
    (1.) That the testator, at the date of his will, owned about 482 acres of land near Zanesville.
    (2.) That said land formed one compact body or tract, in-no wise separated either by nature or by the ownership of any other person.
    (3.) That it was ‘farm land.
    (4.) That the testator obtained his title to the whole of it at the same time, a.d. 1826, and by the same muniment oj title, to wit: a decree of Muskingum common pleas.
    (5.) That from the time he thus acquired title until his death he continued to own the whole of it.
    (6.) That during all that time, and therefore at the date of the will, he resided upon it. His home was upon it.
    These were the physical facts which the plaintiff’s testimony tended to establish, and which were not controverted by any other, testimony. Indeed, it was the plain interest of the defendants that they should be established.
    Now if this was all the testimony that was admissible in order to ascertain the meaning of the term in the will, “ the whole of my home-farm where I now reside,” then it is too plain to need argument that the verdict was properly for the defendants.
    And, in this view of the case, the plaintiffs cannot complain that testimony not relating to the physical facts was improperly admitted; for they eould not beprejudiced thereby. 'The defendants might have been, but the plaintiffs could not.
    If evidence relating to - the physical facts was alone competent, how is it possible that 'the plaintiffs could be prejudiced by testimony that had no relation to, or bearing upon, those facts.
    If it be said that in the foregoing view I have omitted the fact that the plaintiffs gave evidence tendimg to prove that "the testator “ used and denominated ” the premises “ as two (Separate farms, calling the lands claimed by the plaintiffs in their petition the Jo. Royd farm ” — I reply:
    1. That these are not physical facts.
    2. That they were controverted. The very testimony of Peters and Lane, that is objected to, tended to controvert •them, and, however slight its tendency may have been, it was ¡admissible if the plaintiff’s testimony was admissible.
    3. That if these controverted matters were ever so clearly established, they could have no effect as against the uncontroverted physical facts aforesaid.
    But if extrinsic proof beyond that of the physical facts was competent, then clearly the testimony of Peters and Lane was competent.
    The 482 acres were all in one tody, were farming lands, and the testator resided upon, had his home upon, them, at the date of the will. Prima facie, therefore, they passed by a devise of “ the whole of my home-farm where I now reside.”
    If it was admissible to rebut this primá-faeie case at all, the burthen of doing so laj’’ upon the plaintiffs.
    
    They, therefore, gave testimony tending to prove, as they claimed, that, although there was but one tract or body of land, there were two farms, J&nown and denominated “ The John Boyd farm ” and “ The Jo. Boyd farm.”
    To rebut this testimony it was plainly proper to prove that the tract was not so known and denominated after Capt. Taylor became the owner thereof in 1826, but that it was knowm and denominated as one farm, called “ The Capt. Taylor farm,” and not otherwise. And that it was not otherwise called, could only be proved by the testimony of witnesses, that they had never heard it spoken of as more than one farm.
    But, say plaintiffs’ counsel, the witnesses Peters and Lane did not call it the home-farm.
    Neither did the plaintiffs’ testimony tend to prove that any pcurt of it was so called. If it tended to prove a name at all for the part which, they say, only passed by the devise, the name was “The John Boyd farm.”
    But all this is sticking in the bark. If the tract was one and not two farms, if that was its reputation, if the denomination by which it was known in the neighborhood imputed but one farm, it was- the testator’s home-farm; for he had his home vpon it.
    That the law admits proof of neighborhood reputation, 6ee 1 Jarman on Wills (2d Am. Ed.), 357-8, top page; 
      Anstee v. Nelms, 1 Hurlst. & Norman, 225; Redfield on Wills (Ed. of 1864), 631, note 58; 653, § 56; 654, § 58.
    As to the admission of extrinsic evidence generally, see 2 Jarman on Wills (2d Am. Ed.), 525, top Rule X.; Wigram’sExtrinsic Ev. 65, Prop. W.; Redfield on Wills (Ed. of 1864), 621, § 25.
    It is further objected by plaintiff’s counsel, that Peters- “ doesn’t show he was qualified to testify of the general reputation ” of the land. And the same of Lane.
    If this was the objection to the testimony, it ought to be' qffvrmatwel/y shown by the bill of exceptions that the witnesses did not show themselves qualified to speak, or their testimony on that subject should be set out so that the court could judge whether they were qualified. Error is never presumed-The presumption in respect to official acts, and especially in. respect to the proceedings of courts of general jurisdiction, is, “ Omnia gprcesumuntur rite et solenniter esse aeta donee 'probetur i/n eontra/riumP (Broom’s Max. 637.) Here the bill of exceptions does not purport to set forth all the testimony of Peters and Lane, nor does it state anything from which it must be inferred that they were not qualified. The presumption therefore is, that they showed themselves qualified’ before the court permitted them to testify as to reputation.
    
      Agawi: It is said that the witnesses do not “ say that this. body of land, or any part of it, had any name by general reputation.”
    Now, bearing in mind that the presumption is that the witnesses were qualified to speak, their testimony does show that the tract had a name by general reputation, to wit:
    “ The Oapt. Taylor Farm.” And here it is again to be observed, that the whole of their testimony is not set out.
    It is next objected, that the name testified to was the' Oapt. Taylor Farm, and not the home-farm. On this I have' already remarked.
    Finally, it is objected that the witnesses were permitted^ to testify that they had never heard it spoken of as two. farms.
    
      But this hind of negative testimony is admissible in all cases of proof of reputation, whether of persons or things.
    It is also said that the court erred in admitting the transcripts of the proceedings and certificates to the will of Geo. Taylor.
    The plaintiff had given testimony tending to prove that the testator had acquired his means from the estate of his brother George Taylor, deceased, from which it might be argued that he would make provision for the plaintiffs who were grandchildren of said George. To rebut this testimony the defendants gave the testimony excepted to.
    If the testimony in chief was admissible, the rebutting testimony was also admissible.
    I confess that the inclination of my mind is, that the plaintiffs’ testimony was not admissible. Apart from any other consideration, it seems to me that the inference to be drawn from it is too remote. But, in view of the authorities already cited, and especially Redfield, 621, § 25, we did not think it prudent to object to the testimony. The opinion of Caldwell, J., in Moore v. The State, 2 Ohio St. 505-6, is also, perhaps, worthy of consideration, in this connection, upon the question of what testimony is too remote.
    But if the plaintiffs’ testimony was inadmissible, then they were not prejudiced by tlie rebutting testimony of the defendants. For the latter could, by no possibility, do more than rebut the incompetent testimony of the plaintiffs. I admit the general rule that the admission of incompetent testimony on one side will not justify the admission of incompetent testimony on the other. Thus, if the plaintiff, without objection, give incompetent testimony, the defendant cannot maintain error on the ground that incompetent rebutting testimony was rejected by the court. But the case is wholly different where it is the plaintiff below, who comes into a court of errors and complains that the rebutting testimony was received. For here, the question instantly arises, “ Was he prejudiced by it ? ” And if it appeared that it could have had' no other effect than to rebut his own incompetent testir 
      
      mony, then it is mathematically certain that he was not pre judieed by it.
    It will be seen, from what I have just said, that I also admit that other rule, that where incompetent testimony has-been given, against an objection, it is not necessary that the-party objecting shall show that he was actually prejudiced thereby. It is sufficient, if it appear that he may have been so prejudiced. But that possibility must exist. And hence,, if no such possibility could exist — if the whole effect of the testimony in question was to rebut equally incompetent testimony on the other side — there has been no prejudice to the party complaining, and the judgment will not be reversed. It is on this ground that courts found the distinction between the admission of material and immaterial testimony, and hold that if the testimony was immaterial to the issue and could not have prejudiced the party objecting to it, the judgment will not be reversed.. And this is so, even where the testimony is not rebutting. A fortiori is it so, when it is merely in rebutter of incompetent testimony given by the other side.
    “ Courts will not reverse a judgment merely because improper or irrelevant testimony has been received, if there is no reason to apprehend that the improper or irrelevant testimony could have had any influence upon the jury.” Wilson v. Barklow, 11 Ohio St. 475; Baddington v. Shearer, 22 Pick. 427; Ellis v. Short, 21 Id. 142.
    The court properly refused to charge the jury as requested by counsel for plaintiffs, without qualification.
    It is said, the court erred in the charge given to the jury.
    This assignment of error cannot be noticed. The only exception taken to the charge was, “To which charge so given, and to every part thereof, the plaintiffs excepted.” A charge cannot be excepted to in gross, in this manner. The true rule is to require specific exceptions to the charge to be made before the jury retire, so that the court may consider them, and correct any error into which it may inadvertently have fallen.
    
      There was no error in the charge, at least none to the prejudice of the plaintiffs.
    
      Lucius P. Marsh, for plaintiffs, in reply:
    A man may be the owner of several farms adjoining each other, upon one of which he lived, and which he called his “home-farm,” and on a devise of the “home-farm,” with proof of such state of case, the devisee would only be entitled to the one farm,, and in making such proof, the matter to be ascertained would be, what body of land did the testator intend in the use of the words “ home-farm.”
    Undoubtedly, evidence would be admissible, that before and after making a will, the testator was in the habit of calling the one farm the “home-farm,” and the others, the- “ Brown farm,” the “ Smith farm,” etc. If there were two farms, proof that he was in the habit of calling one the “ Jo. Boyd farm ” is proof that he recognized the fact that there were two farms, and that if one is the “Jo. Boyd farm” upon which he didn’t live, a devise of “ the home-farm where I now reside,” (the devise being of but one farm,) the “ Jo. Boyd farm ” is not intended.
    Counsel call attention to the proof made on the trial by the plaintiffs, that Capt. Taylor, before making his will, said he had received his means from George, the father of Grundo, and that he intended to will the “Jo. Boyd farm” to Grundo’s children. This is claimed as inadmissible extrinsic evidence.
    What Capt. Taylor may have said was his mtention, may not be competent to prove what he afterwards did in his will s he may have changed his intention ; the will gives us his intention at the time it was written, and we can look to the-will only for the intention. But here is a declaration by Capt. Taylor that there were two farms, that there was a “ Jo.. Boyd farm.” The “ Jo. Boyd farm ” abutted upon the other’ farm. Capt. Taylor lived on that other farm, and his devise,, therefore, of “ the home-farm on which L reside,” does not carry the “ Jo. Boyd farm.” In proving this declaration of Oapt. Taylor, it could not be severed; besides, the balance of the declaration goes to identify the devisees.
    My objections to the admission of the testimony of Peters and Lane are still adhered to.
    If what the neighbors were in the habit of calling the lands in question is competent evidence, it is because the testator in some way, from legal presumption or otherwise, is connected with, or has knowledge of such neighborhood talk. There was no direct proof that he knew of this neighborhood talk; and he was in no way connected with it, unless it be from a presumption arising that every man knows everything that is a matter of general notoriety. I say the law will not presume he knew of the matters testified by the witnesses, because it was not, and they don’t say it was, a matter of general reputation.
    But if it be presumed that he knew of this talk in the neighborhood, of the name given to the lands, he might, or he might not, be controlled by such knowledge in giving the land a name in his will; and I insist that no presumption arises that he would or did. The name given to the lands by the neighborhood talk, if Capt. Taylor knew it, can’t aid us any; the neighbors apply one name to both farms; he applies another name to one of them.
    The witnesses, or one of them, was asked the direct question whether he had ever heard this body of land spoken of as two farms, and he answered that he had not.
    This is hearsay evidence, and calculated in its nature to mislead the jury; they are led to believe that the neighbors must have known whether there was more than one farm; and the court instructed the jury to look to all the evidence to ascertain whether there was more than one farm.
   White, J.

The question for determination on the trial of this case, was whether the lands described in the petition formed a part of the home-farm of the testator on which he resided at the date of his will. And it seems plain to us that this fact was sought to be ascertained upon an erroneous view of the law of the case.

The plaintiffs, without objection, gave evidence tending -to show that the testator had received a large part of his means from the father of Grundo Taylor, and that, in consequence of such aid, the testator had said he intended to provide for and will his property to Grundo and his children.

To rebut this, the defendants were allowed, also without objection, to give in evidence the will of Grundo’s father; .and were also allowed to submit to the jury, as proper for their consideration, the fact of the illegitimacy of Grundo.

In the charge, the jury were told these were proper matters for their consideration in determining the issue.

It was said, in the charge, that the jury might refer to the testator’s declaration of intention, the circumstances surrounding him at the time of making the will, the property he had, how and when acquired, the objects of his bounty, his family and relations, and his relation to them, the value of the provision made for his widow by the law as compared with that made by the will, in order to ascertain the meaning of the words describing the land devised.

Such considerations can afford no legitimate aid in determining the extent or boundaries of a farm, which was the only question in issue.

In the admission of improper evidence on the part of the defendants, which operated only to rebut evidence improperly introduced by the plaintiffs, there was no error to the prejudice of the latter.

But the evidence of general reputation, which was admitted against the objection of the plaintiffs, that the whole body of land constituted the home-farm, or but one farm, was not of that character. And the question is, whether it was error to admit this evidence.

The operation of a will is to be determined by the language it contains. But, as in the case of deeds or other instruments, parol evidence is admissible to show what it is that corresponds with the description.

“ If the word Blackacre be used in a will, there must be evidence to show that the field in question is Blackacre. Where there is a devise of an estate purchased of A., or of a farm in the occupation of B., it must be shown by extrinsic evidence what estate it was that A. purchased, • or what, farm was in the occupation of B., before it can be known, what was devised. So, whether parcel or not of the thing devised, is always matter of evidence. In these and similar cases, the instrument appears on the face of it to be' perfectly intelligible, and free from ambiguity, yet extrinsic evidence must, nevertheless, be received for the purpose' of showing what the instrument refers to.” Broom’s Legal Maxims, p. 550.

The premises in question are not devised by name, nor is this a case in which there are two or more subjects, either of which will equally answer the description in the will. The-descriptive words of the devise are, “ The whole of my home-farm where I now reside, as an estate in fee-simple.”

The testator admittedly had but one home-farm, and, as-already remarked, the only question was as to its extent or boundaries.

The fact sought to be proved that there were two farms,, was only material as showing the extent of the home-farm.

The extrinsic evidence must be pertinent and material to the fact to be found.

The situation of the land, the manner in which it had been used and treated, are proper subjects of inquiry. Such was-the character of the evidence in Doolittle et ux. v. Blakesley, 4 Day’s R. 265. But it seems clear to us that hearsay, or neighborhood reputation, cannot be resorted to.

The case of Anstee v. Nelms (1 Hurls. & Nor. 225) is, we think, distinguishable from the present. There the land devised was described as “in the parish of Doynton.” The parish was referred to by its name as one of the municipal subdivisions of the country; and it was held that the parish must be presumed to have been understood as including what was commonly reputed to be within' it.

But it is said the plaintiffs were not prejudiced by the evidence. Its tendency was to prejudice; and in the charge, the jury were directed that if they found that the 482 acres-had acquired among the neighbors a definite reputation as one farm, or as the testator’s home-farm, they must consider such reputation in determining whether the testator used the-descriptive words of the devise in a sense in accordance with his own mode of dealing with the land, or in the neighborhood meaning.

The bill of exceptions does not profess to set out all the evidence ; nor all the facts which the evidence of the plaintiffs-tended to prove. If, therefore, improper evidence was allowed to be introduced by the defendants, which was calculated to mislead the jury to the prejudice of the plaintiffs,, there is no ground upon which we can say, as matter of law,, that no prejudice resulted.

The foregoing views render it unnecessary to consider the-objection of the defendant’s counsel, as to the form in which the exception was taken to the general charge.

It may be added, however, that the charge asked by the-plaintiffs’ counsel in regard to the effect to be given to the words home-farm,” and which was refused by the court,, was calculated, under the state of the evidence, to mislead-the jury.

Judgment reversed, and cause remanded for a new trial.

Scott, C.J., and "Welch-, Day, and MoIlvaine, JJ., concurred.  