
    * John Richards, Administrator, versus John Dutch and Another.
    Parole evidence of declarations made by a testator before or after making his will are not to be received in explanation of his intentions in any bequest contained in his will.
    Where administration is granted here, upon a will proved in a foreign country pursuant to tne statute of 1784, c. 12, the administrator may be holden to pay the testator’s debts to creditors here, but not to pay legacies, for which the legatees must resort to the country of the testator where the will was originally proved.
    The declaration in this case, which was in assumpsit, contained two counts. The first was on a promise of the defendants to account, as bailiffs and receivers of James Murray, late of Calcutta, deceased, (whose administrator, with the will of the deceased annexed, the plaintiff is,) for certain goods shipped to the defendants from Calcutta by the said deceased.' The second count was indebitatus assumpsit for money had and received.
    The cause was tried upon a review before Parker, J., at the November term, 1809, upon the general issue, and also on an issue joined by the parties on a fact specially pleaded by the defendants, ■viz. That the goods and merchandise, which the defendants had received by assignment from Murray, were by his last will and testament bequeathed to them.
    It was proved that merchandise to a large amount was, on the 11th of September, 1806, shipped by Murray on board the ship Boston Packet, then at Calcutta, bound to Salem, and that said merchandise was consigned by Murray to Mess. Dutch 8f Deland, the defendants, who were merchants and partners in trade in Salem. The property so consigned came to the hands of the defendants, who sold the same; and the proceeds, according to their account of sales, were 21,547 dollars 62 cents.
    The defence was founded upon a claim under the last will and testament of said Murray; the defendants contending that the property shipped to them' as aforesaid was by said will bequeathed to them for their own use, and that they therefore ought not to be held accountable for the same. The clause of the will, on which they relied, was as follows, viz. “ All my property, which has been remitted home by me from this country to America, I desire may remain in the hands of those to whom I sent it, for * their own use.” —A subsequent clause in the will was, “ The property now going to America, I do not consider as belonging to any person.”
    
    It appeared that the testator was a native of Rhode-Island, of the name of Lillibridge; that he left this country in early life, and after having been some time on board a British vessel of war, that he entered the service of some of the princes in the East Indies, in which he amassed a large property ; that he afterwards went into the service of the British in Bengal, in which service he continued until his death, which took place in the autumn of 1806 at Calcutta; that he was reputed to be possessed of property worth from 150 to 200 thousand dollars, having no family or relations in that country but a wife. Before his death he had determined to come to America, and to transport hither all his property. For this purpose he had endeavored to contract with Mr. Cabot, supercargo of the ship Dromo, then at Calcutta, to take him, his family and property on board ; but not agreeing upon terms, he applied to George Dutch, master of a ship belonging to the defendants, who arrived there about the first of July, and who agreed with him, as will hereinafter appear.
    The Boston Packet, on board of which the goods were shipped, which were consigned to the defendants, had dropped down the fiver on her way to America on Sunday the 20th of September, 1806, of which the testator on that day had knowledge. In the afternoon of the same day, Murray fell from his horse, and on the next Tuesday evening died. On the afternoon before his death he sent for Mr. M’Lintock, (one of the house of Alexander &f MLintock, who had been his bankers, and with whom the principal part of his fortune was deposited,) to make his will, having been told by those around him that his death was approaching.
    There was no evidence that Murray had ever before sent any property to America; but two witnesses testified that, when conversing about the shipment in the Boston Packet, . * a few days before he fell from his horse, he had dedared that it was the first property he had ever shipped to America. Murray had no acquaintance with the defendants, nor had he any correspondence with them before he consigned his shipment to them ; nor had he ever seen the said George Dutch, the brother of one of the defendants, who was admitted to testify in the case, until their meeting in Calcutta on Dutch’s arrival there about the first of July, 1806.
    The said George Dutch testified, that he arrived at Calcutta, master of a ship belonging to the defendants, and there met with Murray, who engaged him to receive him with his retinue and property on board his ship, and transport them to America; that the witness incurred considerable expense in altering and fitting his ship, particularly the cabin, for the accommodation of Murray; that one Quero was desirous of shipping a large amount of property by him, and taking passage for America; but that Murray would not consent, and said that if the witness had any thing to do with Quero, he, Murray, would not go with him ; adding that the witness would lose nothing by him, if he did not take Quero; that the witness shipped the goods for Murray on board the Boston Packet, and entertained him and his suit, consisting of twelve or fifteen persons, at his house in Calcutta for three months ; Murray having at that time a house in the country, at which he lodged, but was frequently in the city, having hired a store or warehouse next to the house occupied by the witness ; that Murray had advanced the witness 10,000 dollars, for which the witness had drawn a bill on himself payable in America, which bill Murray had in his possession when he made his will, and when he died ; that on this bill an action had been brought by the present plaintiff, and the witness disputed payment of the same, on the ground that it was intended jy the testator by his will to bequeath it to him ; but judgment had been rendered in the action against the witness.
    * This witness also testified that he was at Murray’s house on the day he died, and was frequently in his cnamber both before and after he made his will; that he knew Murray had sent for M’Lintock to make his will; that he could not distinctly hear the conversation between Murray and M’Lintock, but that after the will was signed, Murray beckoned to him, and he went to his bedside, when he told Murray he had put his owners to great expense and loss to accommodate him, and asked him how he expected to compensate them ; that Murray replied, he had given them the property in the Boston Packet.. The witness also testified that Alexander and M’Lintock were strangers to him. It appeared also by the testimony of the witness, that he had invested his owner’s property in a certain cargo, and had by means of credit obtained at Calcutta a full freight.
    Captain Emery testified that M’Lintock told him that his house had in their hands property belonging to Murray, worth from 150 to 200 thousand rupees.
    Col. Boyd testified that he was acquainted with Murray in the East Indies, and that he frequently spoke to him of his relations in America with affection and kindness, and heard him say, that when he should acquire property enough, he intended to return to his friends; that it was easy and safe for those in the interior to remit property to Europe or America by means of the bankers in Calcutta, there being regular mails to the sea-coast. There was also some evidence of Murray’s having spoken of his relations with indifference and contempt.
    It appeared that in the former trial of this cause, George Dutch was sworn and examined as a witness, but did not then testify respecting any conversation with Murray after he had executed the will, nor was it suggested to the Court at the trial, that he could testify to that fact. He stated at the last trial that he was sick when he gave his testimony before, (being at the last trial in a very feeble state of health,) and that at the former trial he was not called * upon by the course of the proceedings to complete his relation.
    It was also mentioned and relied on against the credibility of this witness, that from the testimony of Mr. Cabot and of a Captain Breck, it appeared that his acquaintance with Murray had not been bo long as he had stated, and that Murray, instead of living with him, had only refreshed himself at Dutch’s house, having his own establishment in the country within a few miles of the city.
    
      On the part of the plaintiff, all the parole testimony, and particularly that of George Dutch tending to prove the intention of the testator to give by his will the property in question to the defendants. was objected to; but the objection was overruled, and the jury were permitted to consider all the parole testimony in the case. They returned a verdict for the defendants on both issues; the foreman having stated that he was requested by the jury to inform the Court, that they had made up their opinions without considering the testimony of George Dutch relative to the conversation with Murray, after the making of his will; but had considered the other parole testimony in the case.
    After the verdict was returned, the plaintiff moved that it be set aside, and a new trial granted, on the report of the judge, before whom the cause was tried, for the following reasons, which were reduced to writing, and filed in the action.
    1. “Because certain parole evidence offered by the defendants, and objected to by the plaintiff, was admitted by the judge, to prove the construction of the clause in the will of the said Murray, under which the defendants claim to hold the property in question, and the intention of the said testator in that behalf; and more especially that evidence was so admitted of the conversation of the testator, both before and after making his said will, a short time before his death, and at sundry other times, to prove his meaning and intention in the clause aforesaid.
    *2. Because the plaintiff was surprised by certain evidence produced by the defendants; in that one George Dutch, a witness sworn and examined on the part of the defendants, testified to certain conversation said to have taken place between him and the said Murray, which appeared to be more essential and material than any other part of his testimony; which had never been mentioned to the plaintiff or his counsel, nor in any manner known to them, until it was so sworn to on the stand; although the said George Dutch, was sworn and examined on the former trial of this cause, on which occasion he did not mention the said conversation. And if the plaintiff had known or supposed that the said George Dutch was to testify to such a fact, he might and would have been prepared to disprove the same, and wholly to defeat the effect of such testimony.
    3. Because the defence relied on by the said Dutch <§/ Deland,even if true in fact, is wholly insufficient in law, to discharge and acquit them from the payment of the sum demanded in this action; and therefore, as the counsel for the said Richards humbly apprehend, the jury ought to have been instructed to find a verdict for the said Richards on the general issue
    
      4. Because the verdict was altogether against the weight of evidence in this case, and the law applicable thereto.”
    The cause was argued upon this motion, March term, 1810, by Otis and Jackson for the plaintiff, and Dexter and Prescott for the defendants.
    
      Jackson.
    
    It is among the best established rules in the construction of wills, that parole declarations of testators, to control the import of the will, or give a meaning to the words, which they would not otherwise bear, are inadmissible; and this whether such declarations apply to the devise or to the person of the devisee.  Otherwise witnesses might make a parole will for the testator, instead of his own written one. It often happens that a testator has a desire to conceal from those about him the purport * of his will until after his death ; and with this view he may intentionally hold out a false show, in order to mislead them in their conjectures. '
    If the person to take be not in some sort described in the devise, no averment can be admitted, to show who was intended ; and the reason of this principle is, that in such case the ambiguity appears on the face of the instrument. 
    
    In support of the second ground of the motion for a new trial, the deposition of John Lathrop, jun. Esq. was read, in which the deponent stated that he was resident at Calcutta at the time of Murray’s death, that he was well acquainted with him and the friends with whom he associated; and detailed many circumstances tending to throw a doubt upon the testimony which George Dutch gave at the last trial of the cause. Mr. Richards, the plaintiff, also filed his own affidavit, stating his expectation of procuring evidence for a new trial, which should invalidate Dutch’s testimony.
    Upon the third ground of the motion, Jackson contended that it was not competent for the defendants in this action to set up their claim to a legacy. If the bequest to them were established, stil they have no right to retain the legacy against the present plaintiff who is answerable to the creditors for the amount. It belongs to the Probate Court to have an account from the plaintiff of all the personal property of the testator within the Commonwealth, that it may be ascertained whether there is sufficient for paying the debts in the first place ; although by our statute,  a legatee may sue • for his legacy at common law, yet this must be after it is made to appear by a settlement in the probate office that there are assets for the purpose.
    
      In this case, however, the plaintiff is merely auxiliary to the executors in India. The legacy will never be demandable of him. The will was proved at Calcutta, and legatees, perhaps even creditors, must apply there for payment. It cannot be known here that this property is not wanted to pay the debts of the deceased in that country.
    * Under the fourth cause shown for a new trial, Jackson argued the extreme improbability that the testator should exhibit such bounty to absolute strangers, while he gave in the same will small sums to his intimate friends who were about him, including his wife, and to the disinheritance of his near relations, for whom it was in evidence that he expressed a strong affection.
    
      Dexter and Prescott.
    
    The declaration proved to have been made by the testator, both before and after making his will, were necessary and proper to explain the latent ambiguity, as it respected the persons of the legatees and the thing bequeathed. The expressions were equivocal, and the declarations of the testator were the most proper to remove the doubts arising from them. 
    
    Where a party is surprised with unexpected testimony at a trial, his regular course is to suggest it to the Court, and move for a continuance of the action. If he neglects to do this, he implicitly consents to risk the issue with the jury ; and ought not afterwards to make it a ground of a motion for a new trial. The doctrine on this subject stands on different ground here from what it does in the English Courts, where our reviews as a matter of right are un known. If the witness Dutch, instead of giving further evidence at the last trial than he had given at the former one, had been first introduced as a witness at the last trial, the plaintiff might have been quite as much surprised at his testimony, yet he would not therefore have been entitled to a new trial. Mr. Lathrojo’s deposi tian does not disprove the conversation between G. Dutch and the testator-, for he was not present at the time it is said to have taken place.
    This being a bequest of specific property already in the posses sion of the legatee, amounted to a release of the testator’s claim to an account; and the assent of the executor to such a legacy is not necessary.  Nor can he take it from the legatees, unless he shows them necessary for the payment of the debts. The administrator under our statute * cannot have greater rights than the principal executor. If the plaintiff can recover this property, the defendants may immediately sue the plaintiff for it. To prevent a circuity of action, the defendants should be permitted to retain it.
    
      Otis in the close.
    The parole evidence in this case went rather to create ambiguity than to remove it. The cases in which parole evidence is admitted are, where there are two or more persons of the same name, or where the estate or thing devised is imperfectly described. But we contend that the verdict is against the weight of the evidence, whether properly admitted or not. It is grossly improbable that Murray should intend a legacy of this amount for perfect strangers to him, and at the same time omit wholly to notice George Dutch, whom he knew, and who pretends to have been on the most intimate terms with him.
    The verdict is also against law. Admitting all the evidence to have been regularly admitted, the construction of the will is stiU matter of law for the Court. It lies then with the defendants to establish their claim to this property to the exclusion of those next of kin to the testator. The latter expression, “ the property now going to America,” must apply to these very goods. There was no other property, to which it can be made to apply. The only consistent construction that can be given is, that by the first clause the testator intended that his executors should not countermand the shipment, but that the consignees should have the benefit of the commissions, as a compensation for the expense and inconvenience they had incurred on his account; and lest it should be construed to mean more than he intended by it, he added the second clause, to show that the goods themselves were not to be theirs.
    But even if the defendants were entitled to this legacy, as claimed by them, they cannot retain it in this action. They claim it as the bounty of the testator, and it *is highly reasonable that they should go to India and there obtain it under the laws of the country, which gave effect to the will. The statute was never intended to give a demand to legatees against an administrator here, who cannot know that the estate is sufficient for the discharge of the debts due from it.
    
      
      
        Powell on Devises, 477. — 6 D. & E. 671, Thomas vs. Thomas
      
    
    
      
      
         Powell on Devises, 500.
    
    
      
      
        Stat. 1783, c. 24, § 17
    
    
      
       1 P. Will. 674, 420.—4 Vesey, jun. 680.—2 P. Will. 135. —7 Vesey, jun. 518. — 11 Vesey, jun. 543.
      
    
    
      
      
         Shep. Touch 436. — Godolphin’s Orph. Leg. 275. — Vin. Abr. Devises, W. b.
      
    
   The action stood continued for advisement until this term ; and now the Court expressed their opinion that the testimony given at the trial, of the oral declarations of the testator, ought not to have been admitted; it went to set up a will by parole, instead of the written will of the testator himself.

In case of a copy of a will filed and administration granted in this state under the statute of 1785, c. 12, the administrator may be held to pay debts due to creditors here, if any such are claimed of him; but legatees, who claim only from the bounty of the testator, mus* resort to the country of the testator, where the will was originally proved, and by the laws of which his effects are to be distributed, to obtain the bounty they claim.

For both these reasons the verdict must be set aside, and a new trial granted; and upon such new trial the defendants are to be permitted to set off any legal claims they can establish as creditors to the estate of the deceased, 
      
      
         [Vide Dawes vs. Head, 3 Pick. 128. — Harvey vs. Richards, 1 Mass. Rep. 407, and the remarks of Mr. Justice Story upon the case of Richards vs. Dutch.—Ed.]
     