
    Andrew Painter v. John Painter and others.
    Parol evidence cannot be admitted to contradict or explain the contents of a will.
    This is a bill in chancery reserved in Richland county.
    The bill alleges that the complainant is a son, and one of the heirs, of Jacob Painter, late of said county, deceased; that on the 20th of December, 1835, said Jacob, his father, made his last will and testament, the items of which, so far as they affect the construction of the will, are as follows :
    “ Item 1st. I give and bequeath to my beloved wife, Christiana Painter, the third of my estate during her widowhood^ but if, after my death, she should marry another, then in that ■case her third is cut off.
    “ Item 2d. I devise that all my children shall be equally divided with, after my decease, of my estate.
    “ Item 8d. My son, John Painter, has received heretofore ■one thousand dollars, which stands in part of his portion.
    “ Item 4th. My son, Andrew Painter, has received heretofore out of my estate the sum of twelve hundred dollars, which stands in part of his portion.
    “ Item 5th. My daughter, Margaret Goldsmith, has received heretofore out of my estate the sum of eight hundred dollars, which stands in part of her portion.
    “ Item 6th. I give and bequeath to my two youngest daughters, Mary and Christiana Painter, an equal portion out of my estate, after ,my decease, with the former part of my family, •allowing all my children to be divided with equally and alike.”
    The bill further charges, that the testator died on the 27th •of July, 1845 ; that about 20 or 22 years before the date of the will, his father entered two quarter sections of land in Rich-land county, and gave one of the tracts to his son John; he at the same time, or shortly afterwards, requested complainant to take possession of the other, and stated that he would make him a deed for it; complainant did take possession, and paid the taxes for two years and upwards; but after he had been in possession and paid the taxes, his father became involved in a lawsuit with one Williams, and in consequence thereof, determined to make sale of the land, and did sell it, stating to complainant that he would give him a full equal share of his property and make him a deed for another quarter section of land, or give him the value thereof in money, which has never been ■done. The complainant never got any thing from his father but a colt and a rifle-gun, and he did not owe him any thing; that his father for some years before he made his will'was intemperate, and at times disordered in his imagination; and before and at the time of making his will, he became vexed with complainant, and imagined things under the influence of intoxication which had no foundation in fact; that at the time the will was executed, he was laboring under derangement of mind, and imagined he had given complainant $1,200, when in truth he had not given him that sum, or any part of it; his father during the last year of his life frequently expressed a desire to make him a deed of a lot he owned in Bentley’s addition to Mansfield, and to give him notes of hand, stating it was to make him equal in his will with his other children ; that the will which he had signed did not do complainant justice; that it would require the lot and notes which he intended to give, to make the amount of the $1,200 as specified in the will; that unless complainant allowed him to give the deed and notes he would make another will. Complainant states that his father never gave the deed or notes, and by the influence of his wife and others, was prevented from making another will; and that charging complainant with the $1,200 was a mistake of his father. The prayer of the bill is, that the will be avoided so far as it relates to the charge of $1,200; that complainant be decreed to receive a full equal share of the estate, and such other relief as may be agreeable to equity. The widow and other children of the testator are made defendants. The case as to one of the defendants stands upon answer and testimony, as to the others,, upon demurrer to the bill.
    • T.-W. Bartley $ John Sherman, for complainant.
    The will of the testator provides for an equal distribution of his estate among all his children, but charges several of them with advancements, and among the rest it charges the complainant with an advancement to the amount of $1,200, in the following-words: “Myson Andrew Painter has received heretofore out of my estate the sum of twelve hundred dollars, which stands in part of his portion.”
    This charge in the will is unjust and untrue; the complainant never having m fact, received the advancement here charged to him. Upon this point, the proof is clear and certain, not only from all the circumstances connected with the case, but also from the positive, distinct and repeated declarations of the testator before his death.
    The testator had, in his lifetime, given the complainant a quarter section of land, worth, about the time the will was made, not far from $1,200, as appears from the depositions of Judge Parker and others. The testator did not, however, convey this land by deed to the complainant; and after some time, in consequence of a change of circumstances and pecuniary embarrassments, he sold the land and applied the proceeds to his own use, promising the complainant that he would some time thereafter give him another quarter of land, or the value in money, which was never done.
    It is clear, from the proof, that it was either in view of this contemplated and promised advancement, or by a mistake made under undue influences and while at variance with the complainant, that the testator made this groundless charge of $1,200 in his will, and the most probable inference from the testimony, is the former.
    The object of this bill in chancery is not to alter or change the bequests of the testator, but to relieve the complainant from a charge of an advancement never in fact received, and thereby carry out the true intention of the testator. And the only question in controversy is, whether a court of equity can grant relief in such a case.
    There is no ground for controversy as to the intention of the testator in this will. The manifest intention was an equal division of his property among all his children. This is twice expressed in the will. The 2d item in the will uses this language : “I desire that all my children shall be equally divided with, after my decease, of my estate.”
    And the 6th item uses this language : “ I give and bequeath to my two youngest daughters, Mary and Christiana Painter, an equal portion out of my estate after my decease, with the former part of my family, allowing all my children to he divi ded with equal and alike.”
    
    
      This intention of the testator was frequently repeated in the latter part of his life and on his death bed.
    If, therefore, this false charge of an advancement to the com plainant is allowed to stand, it defeats the clearly expressed and repeated intention of the testator.
    It is well settled that in a court of equity the manifest intention of the testator is the governing principle, and every rule of construction must yield to it. If, therefore, there be any rule by which the court in this case can carry out the evident intention of this testator, it will be adopted.
    A charge for an advancement to an heir or legatee is sometimes made by a testator in his account books, and sometimes in his will. In either case it does not constitute a "devise in the will, but is simply an incident which must be made subordinate to the disposition of the property intended to be made. Parol testimony, therefore, touching a charge in a will for an advancement, stands upon different ground from parol testimony which would effect or change a bequest of property to a devisee. The latter shows the disposition the testator intends to make of his property, and the former is simply incidental and subordinate to it. Where, therefore, a testator provides for an equal distribution of his property among his devisees, and to carry out this intention charges certain devisees with advancements, which he either has made or is about to make, but afterwards, contrary to his expectations and intentions, by a change of property, the advancements are not consummated or realized, but the property is appropriated otherwise by the testator, if parol evidence could not be used to show the failure of the advancement, the manifest intention of the testator would be defeated.
    The rule that parol evidence cannot be used to contradict, vary or explain a written instrument, has very many exceptions to it.
    A receipt or account in writing is always subject to be explained, varied or controlled by parol evidence. See Johnson v. Weed, 9 Johns. 310; Gerrish v. Washburn, 9 Pick. 338; Badger v. Jones, 12 Pick. 371; Southwick v. Hayden, 7 Cow, 334; Keene v. Meade, 3 Pet. 7.
    
      In case of mistake or fraud, parol evidence is always admissible to contradict or vary a deed or other instrument. See Daniel v. Mitchell, 1 Story 172; Gist v. Gist, 1 Bai. Eq 343; McCall v. Harrison, 1 Brock. 126; Bradbury v. White, 4 Greenl. 391; Slee v. Manhattan Co., 1 Paige 48; Mark v. Pell, 1 Johns. Ch. 594; Westbrook v. Harbeson, 2 McCord’s Ch. 115.
    It is true that parol evidence is not admissible to explain or show the meaning or intention of a will expressed on its face, for this must be gathered from the context, and by construction; but parol evidence, it is said, is admissible to explain a latent ambiguity and certain matters dehors the will, and it is sometimes necessary to ascertain the intention of the testator, in order to give full effect to it. See Founereau v. Poyntz, 1 Bro. C. C. 472; Abbot v. Massey, 3 Vesey 140.
    Parol evidence may be given to show mistake and point out the object of the testator’s bounty. This does not contravene the will, but may become necessary to give the intended and true effect of it. Goodinge v. Goodinge, 1 Vesey 331; Hampshire v. Pierce, 2 Vesey 216; Attorney Greneral v. Hudson, 1 P. Williams 674; Roberts on Frauds 20; Abbot v. Massey, 6 Vesey, jr. 148; Founereau v. Poyntz, 1 Brown C. C. 472; Salwood v. Mildmay, 3 Vesey, jr. 306, and a case in 1 Vesey, jr. 259; Pultney v. Darlington, 1 Brown C. C. 177; Druce v. Dennison, 6 Vesey, jr. 385.
    It is settled that if in a will there be a mistake in the computation of a legacy, it will be rectified in equity. Milner v. Milner, 1 Ves. R. 106; Danners v. Manning, 2 Bro. Ch. R. 18; Door v. Geary, 1 Ves. R. 255, 256.
    So it is said if there be a mistake in the name, or description, or number of the legatees intended to take, or in the property intended to be bequeathed, equity will correct it, and parol evidence is admissible for that purpose. Stebbing v. Walkley, 2 Bro. Ch. 85; River’s case, 1 Atk. R. 410; Parsons v. Parsons, 1 Vesey, jr. 266.
    If the mistake be such that had the testator not labored under it he would have acted differently in making his will, equity will rectify the error, and for this purpose receive parol evidence. See Smith v. Maitland, 1 Ves. 363; Campbell v. French, 3 Ves. 321; Kennell v. Abbott, 4 Ves. R. 808; Geer v. Wind’s Ex’r, 4 Desau. 85.
    The authorities above referred to bear upon the general principle relied on by the complainant. But there are two cases in the 5th of Watts, decided by one of the most eminent judges of'Pennsylvania, strictly analogous to the case before the court. Where a testator directed in his will that each child should be charged in the distribution with what he had given them and had charged them on his books, it was held by the court that the charges on book might be shown by parol evidence to he false or even excessive. Hoak v. Hoak, 5 Watts 80. Or that the sum charged had been paid by the child, etc., before the death of the testator. Musselman’s estate, 5 Watts 9.
    These two cases decide the identical question now presented. In both these cases the question was as to the power of a court of equity to rectify a mistake of a testator in charging an advancement to a legatee, and that too upon parol evidence. In these eases the charges for the advancement were made in the will and book referred to as showing the amount. The parol evidence did not simply affect the book, therefore, but the will which charged legatees with what appeared on the book.
    In the case before the court, the governing object of the testator was to make an equal division of his property among his children at his death. Particular expression in the will, therefore, which stand in the way of this, must be construed and made subordinate to it, or be disregarded. In inserting the charges for advances to different devisees, his manifest intention was to place all his children on an equality at his death. It is not rational to suppose that he intended to insert a false and unfounded charge in his will against his son Andrew that would defeat his proclaimed and repeated intention expressed in his will. It is abundantly clear that he charged the advancements in his will, for the purpose of making his children equal participants in his estate at his death, taking into the account what he had actually given some, and what he intended during Ms lifetime to give to others, and what he should leave them all at his death.
    
      James Stewart, for defendants.
    This bill in chancery is prosecuted by Andrew Painter against the executor and devisees in the will of Jacob Painter, deceased, for the purpose of establishing by proof the fact that the testator, Jacob Painter, labored under a mistake or misapprehension in relation to the complainant (who is one of the testator’s sons) at the time of executing the will in question, •by means of which mistake, as is alleged, the testator was induced erroneously to charge the complainant by the will with a previous advance of “ twelve hundred dollarsand to direct that that sum should stand as a part of his portion under the will. The prayer is for relief against this charge and direction in the will.
    It appears from the bill that the will was executed on the 29th December, A. D. 1835, and that the testator survived till the 27th day of July, A. D. 1845. That the will has been admitted to probate, etc.
    The devise is in the following words: “ I desire that all my ■children shall be equally divided with, after my decease, of my estate.” Then follows a statement by the testator of the several sums of money by Mm previously advanced to different children; with directions, in every instance, that the sum stated shall stand or go in part of the share respectively devised to such child. Indeed it may be inferred from this will that the principal motive of the testator, in the execution of it, was to declare the amount of these several advancements; and to provide that •each of them, as stated by him, should be deducted in the final distribution of his estate from the share of each child thus .advanced.
    The statement of his advancement to the complainant is as follows: “ My son Andrew Painter has received heretofore, out of my estate, the sum of twelve hundred dollars, which stands in part of his portion.”
    The complainant claims by his bill that he had not received “ twelve hundered dollars,” nor any sum whatever out of his father’s estate, and that the testator in declaring that sum to have been advanced to him, and in directing the same to “stand in part of Ms portion,” was mistaken, and committed an error; not intending at the time to do that which was actually done. He further claims that it is a right secured to him by law, to show by parol or extrinsic proof, this supposed error and mistake of his father ; and upon his making such showing, that this court have the power by law to reform the instrument, so far as it bears adversely upon his interest; and to relieve him from an unreasonable or mistaken exercise of the testamentary discretion of his ancestor.
    
    I believe I have not stated unfairly the position assumed for the complainant in this bill.
    I deny that any sufficient evidence is furnished in the papers to show that the testator in fact labored under the alleged mistake or misapprehension, at the publication of this will.
    But admitting for the argument, that the testator did labor under the mistake or misapprehension supposed by the bill, at the time of publishing this will; and that in fact the advancement of “ twelve hundred dollars ” to the complainant had not been made. The question arises can a court of equity rectify the mistake and reform the will ?
    I hold that it cannot. It may be conceded that if this testator had charged this complainant in a book with various sums in money or other property from time to time advanced (as in the cases cited from 5 Watts 9 and 80, Musselman’s estate and Hoak v. Hoak,) and had directed by the will that such advances as he had thus made and charged, should be ascertained and deducted from the share devised, the rights of the complainant would not be concluded by such book and charges. And why ? Because the question would not be on the devise, but on the subject of it. The authenticity of the book and the amount and validity of the charges found on it,' would be open to controversy between the executor and devisee; and might be ascertained and settled by extrinsic evidence, adducible by either or both. In such evidence nothing is offered in explanation of the will, or in addition to it. 1 Jarman on Wills 367 (at top), and 368 (margin). Indeed a court would not allow, in such cases, the executor on settlement to deduct such charges from the share of any devisee adversely, without some showing to establish the authenticity of the book, and the charges therein; and the devisee would be at liberty to controvert the same by similar evidence. This was the principle on which the two cases were ruled in 5 Watts. It is evident therefore that they do not sustain the position assumed by the complainant in this case, for he undertakes by proof, aliunde, to controvert the will. Whereas, in the cases cited from Watts, the legal construction of the will was ascertained, per se ipsa. In fact the proper construction was plain, and was not controverted ; and the evidence offered by the devisee, and sanctioned by the supreme court of Pennsylvania, was confined exclusively to the description of the thing devised ; or which was the same, to the description of the advances directed by the will to be deducted from the share devised; and was consistent with the ■written will.
    
    But in the will under consideration at bar, the advancement is declared .to be “ twelve hundred dollars;” and that sum is directed by the will to “ stand in part of the complainant’s portion.” There is hére no room for controversy and proof, about what the testator intended to embrace within the devise. He has cut off all controversy and all extrinsic proof, by adopting and expressing in his will, in numbers, the amount of the advancement to be deducted, instead of leaving it to be ascertained from a description, as in the cases in 5 Watts. See Nil rule for the construction of wills, 2 Jarm. 742 (margin).
    
      The complainant in this case is compelled to assault by his averments and evidence, the plain and positive averments and evidence of the written will. In this conflict which shall stand ? for one or the other must of necessity yield. Now this court will not hear parol evidence either to contradict, add to or explain the contents of a will. 1 Jarman on Wills 349. And it is said that no principle of the law relating to wills is more fully established, or more familiar in its application. Lord Walpole v. Earl of Cholmondley, cited in 1 Jar. on Wills 350, 351; Earl of Newbury v. Countess of Newbury, Ib. 353, 354. And where the question is on the interpretation of wills, it is clear that parol evidence of the actual intention of the testator is inadmissible for the purpose of controlling or influencing the construction of the written will — the language of which must be interpreted, when seeking the intent of the testator, according to its proper and usual acceptation. 1 Jarman on Wills 358. We must ascertain and determine the meaning or intention of a testator by the words used. Beaumont v. Field, 2 Chitty’s Rep. 275; Comstock v. Vandeusen, 5 Pick. 166. “ The ascertainment of intention from the will itself, falls within the province of the court, and when the sense is incomplete, the deficiency cannot be supplied by extrinsic evidence.” Chief Justice Gibson, in Vernor v. Henry, 3 Watts 392. From these and numerous cases that might be compiled on this point, it is established that neither courts of equity nor law will pass by and disregard the written will, nor import into it or engraft upon it an intention independent of the terms of the instrument itself. Hall v. Hill, 1 Conn. and L. 140, 145, et infra.
    Parol evidence is inadmissible for the purpose of correcting a mistake of fact in a will. 3 Cowr. and Hill’s Notes 1384, 1489, 1426, and the catalogue of cases which their- industry has furnished. Avery v. Chappel, 6 Conn. Rep. 270; 2 Atk. 373; Duke of Rutland v. Duchess of Rutland, 2 P. Williams 209; Nichols v. Osborn, Ibid. 420.
    There is here no uncertainty or ambiguity apparent on the face of the instrument; and if there were, the uncertainty 01 ambiguity must be such as to avoid the instrument, before the admission of parol evidence would be received, to explain it. Westhoff v. Dracourt, 3 Watts 240, 243; Chichester v. Oxander, cited 1 Jar. on Wills 359. No latent ambiguity is raised by the evidence in these papers; for the question made is not who shall take the devise, nor what was intended to be embraced in and to pass in virtue of the devise, but that the testator had a different intention from the one which he clearly expresses on the face of the will. 1 Jarman on Wills 370, 371, 372 (in the margin); 3 Watts 243. Now I have shown that the intent of a testator must be obtained from the words used in the will; and that upon that question parol or extrinsic evidence is rejected; See XYI rule laid down in 2 Jarman on Wills 743, margin.
    Judge Story, 1 Eq. Com. §179, page 190 et sub., says that in regard to mistakes in wills there is no doubt that courts of equity have jurisdiction to correct them when they are apparent on the face of the will, or may be made out by a due construction of its terms; for in cases of wills the intention will prevail over the -words. But then the mistake must be apparent on the face of the will; otherwise there can be no relief; for :-at least since the statute of frauds, which requires wills to be in writing, parol evidence or evidence dehors the -will is not admissible to vary or control the terms of the will, although it is •admissible to remove a latent ambiguity. But, he adds, the •mistake, in order to lead to relief, must be a clear mistake 
      
       or a clear omission, demonstrable.from the structure and scope of the will, as in the computation of a legacy; in the name and description or number of legatees, or in the property intended to be bequeathed. But he also says the mistake must be clearly made out; for if left doubtful, equity will not interfere. And so if the .words of a bequest are plain, evidence of a different intention is inadmissible to establish a mistake. Neither will equity rectify a mistake, however apparent, if it does not appear what the testator would have done in the case if there had been no mistake. Ib. §180, 181; Nourse v. Finch, 1 Ves. 355, 56, 57, et sub.
    It is insisted for the complainant that inasmuch as the testator declared, in the will, his desire, that all his children should “ be divided with equally,” out of his estate, this court will hear extrinsic evidence to guide them in effecting a literal equality of distribution. I have already shown that when it is not a question of description, either of the power to take, or of the thing devised, the intention of the testator must be obtained from the will itself. And in this will, although the testator makes and repeats the general intent, to divide his estate equally among his children, he prescribes, in dear and precise terms, the rule by which that distribution is to be effected. And that rule cannot he departed from; for it is evident from the will itself, that the testator, at the time he executed the instrument, contemplated and intended such equality of distribution only, as the application of the rule should produce. The declaration that the complainant had already, received the sum of twelve hundred dollars out of his estate, and the direction that that sum should stand in part of his portion, demonstrate that the testator did not intend to devise to him a literally equal share of such estate as should remain to be divided after his decease; and so with the others to whom the testator had made advances.. The same rule of construction and of distribution is applicable, and must be enforced as to them.
    If the foregoing views and authorities should be found correct and applicable, I flatter myself, they will be conclusive of the case made in this bill, and the demurrer will be sustained.
    The point assumed by counsel that there is here a revocation of the devise to the complainant, is untenable, because, 1st, It is not within the case presented by the bill; 2d, All the devise made to the complainant, or intended to he 
      
      made (as I have already shown) has been received by him, oi remains to be distributed to him; 3d, Admitting that the devise to the complainant is, in effect, the land described in the papers, there is no evidence that the land was sold by the testator subsequent to the devise.
    The particular tract of land described, was in fact sold by the testator several years before the execution of the will; and this fact may be gathered from the bill and testimony, although there is some appearance of design to conceal it.
    I have said nothing on the tendency of the testimony presented by the complainant; for, if the views I have submitted are to prevail, this will be unnecessary. I advised the respondents to present no testimony on their part; nor did I avail myself of any cross-examination of the complainant’s witnesses. If, however, I shall be found to have misapprehended the law applicable to the facts set forth in this bill, and the demurrer shall be overruled, I ask to be placed under leave to file answers for the demurrants, and to put in testimony on their behalf.
    
      
      Tills claim of tlie complainant seems to me to controvert tlie accuracy of tlie XII rale for the construction of wills, collated in 2 Jarman on Wills 743 (margin.)
    
    
      
      This is no more than the ambiguitas latens.ff the extinguishment of which by parol evidence is iliustatadind J-avman on "Wills 870, 71, 72, et sub.
    
    
      
       This declaration, although untrue, cannot affect or control the positive devise. See N"H rule of construction, laid down in 2 Jarman on Wills 742, in margin. .
    
   Avert, J.

We shall assume it to be a fact in the case, that the land which had been given to the complainant, was sold by his father to a third person, before the date of the will. This is probably in accordance with the true state of facts, but Avhether so or not, the bill does not give the time of the date, nor show by necessary averments, that the land belonged to the complainant when the will was executed. No argument, therefore, which might be drawn from a different state of facts, can be made applicable to the question arising upon the demurrer. That question is, whether the bill makes a case for relief in equity. The complainant has given a statement in detail of facts, circumstances and declarations of the testator, which, as he supposes, taken altogether, and in connection with the will, furnish a sufficient ground for relief. He alleges that his father had given him a tract of land, which he afterwards took back, and sold to another person, promising that he would give to the complainant an equal share of his property; that he would give him a deed for another quarter section of land, or the value of it in money; but, the complainant says, instead of fufilling his promises, he executed a will, in which he erroneously charged the complainant with $1,200 as previously received, and died without correcting the error. If there is any truth in the insinuation contained in the bill, that the testator made the charge of $1,200 because at the time he had become vexed at the complainant, the intention and design to cut him off to that extent would appear to be established ; and in that case, though the motive which actuated the testator might not be approved, still his purpose, if he had the requisite capacity for making a will, could not be defeated by the court, consistently with any known rule of the law. So if from derangement, or such a disordered state of mind, as is suggested in another part of the bill, the testator, at the time of executing his will, could imagine that he had given complainant the $1200, when there was not the least foundation, in fact, for such a conceit, there might doubtless have been found a remedy for the complainant, if he had made his application in time and in a proper manner; but it would be through a mode of proceeding different from that adopted in the present case. But further, it is insisted that in making this charge, there was a mistake of the testator, in consequence of which the complainant is unjustly subjected to a loss, to the amount of that charge, and that a court of equity has power to correct the alleged mistake.

Can any inference in support of such mistake be drawn from the whole of the transaction respecting the land, as set forth in the bill ? It is alleged indeed that the testator, at a former period, had given to the complainant a tract of land ; but though he was owner, of this when executing his will, he knew also that no writings had been drawn ; that no title had ever passed by the gift; that he had reserved the control over the land, and claiming to be himself the owner, had sold and conveyed it to another person. He knew that his son had received no benefit from the land, and therefore that he ought not to be charged in the will with the price of it. In the opinion of the court, the charge is not shown to have any connection with a previous advancement of land, and receives no explanation from the circumstances of the transaction as they are stated.

But it is urged in argument on behalf of the complainant, that the charge was made in view of a contemplated and promised advancement by the testator. In considering this argument it will be necessary to inquire from what sources evidence may legitimately be drawn to prove the intention and purpose of the testator at the time of making the charge. If from the will alone, the evidence will be found upon inspection to be exceedingly limited. The charge complained of is in these words, “ Item 4th. My son Andrew Painter has received heretofore out of my estate the sum'of twelve hundred dollars, which stands in part of his portion.” There is nothing in the will alluding to the manner in which the sum had been received, nor an intimation of any purposed advancement; all that is found is the bare statement of the fact, in the above words copied from the will. Now how is this statement, which in clear language is retrospective, taking notice of the sum as received heretofore, to become prospective and to mean an advancement hereafter to be made ? This it will be seen also is a statement by the testator of a fact, not derived from information .communicated to him by others, but if true, within his own knowledge. May such a statement of a testator, who has power- according to our law to distribute his property as he will amongst his children, be contradicted, and declared to be untrue ? But if this may be done, and other parts of the will be examined for that purpose, no contradiction will be discerned. All the aid to be derived from other parts of the will to control or affect the statement, is found in the intention of the testator upon different occasions expressed in the will, to make all his children equal. But the charge is made while he is making a distribution of his estate which he intends shall be equal. It is to be presumed, then, taking the will alone as the guide, that he considered the charge necessary in order to make the distribution equal.

But showing no explanation of "the charge in the will itself, is the complainant at liberty to resort to other evidence to prove what was the intention of the testator, and what were the real facts in the case ? what statements he made at the time of executing his will, and before and after ? such for instance, as that he never actually gave his son anything; that when he made the charge he intended to advance the amount of it in his lifetime; that unless this should be done his estate would not be divided equally, and in such case he would make another will; that he intended to divide his estate equally amongst his children, etc. No doubt, by refusing such evidence it may Sometimes happen that the real intention of the testator will fail of being accomplished; and perhaps it may be so in the present case. But, whatever may sometimes be the consequence of excluding the evidence, is such proof admissible under the law? We decide that it is not. A will must be executed agreeably to the forms prescribed in our statute, or it can have no power to pass the title to property real or personal; it will be entirely void. The statute, after giving the power to execute the will, provides also several modes of revoking it. It may be revoked altogether, or in certain particulars altered by another will or codicil, or by another instrument of writing, but before either one of these can have any effect upon a will, it must be itself executed with all the formalities required in the case of a valid will. The testator may undertake by a writing, which clearly expresses his intention, to explain some statements in his will, or to alter some of its provisipns; but unless two witnesses have put their names upon the writing, and it is otherwise executed like a will, it cannot be received in evidence. Is it to be supposed then, that loose declarations, or even clearly expressed wishes of a testator, not signified in the manner pointed out, can be received in evidence, and be held sufficient to revoke a will, or to control its provisions ?

“As the law requires wills to be in writing, it cannot permit parol evidence to be adduced, either to contradict, add to or explain the contents of such wills; no principle connected with the law of wills is more firmly established or familiar in its application than this.” 2 Jarman on Wills 848, 349.

The counsel for the complainant has cited two cases from the 5-Watts. The first is Musselman’s Estate, 9. The testator had seven children, and the will contained this expression : “ I have kept a book account of advancements made by me to my children respectively, to which reference must be had in making the following division, and so much as shall at my death stand charged against either of my children, shall be taken as part of the share allotted to such child ; each child shall receive from the estate as much as will make him equal with that one of the seven who has received most.” In the book of accounts referred to in the will was found a list of charges against the different children. One of them had settled with the father and repaid all the advancements up to a certain date, but the items were not erased from the list. The court decided that the words “ so much as at my death shall stand charged,” were not intended to give effect to an unfounded charge that ■would defeat his proclaimed intent. The court add: “ he might doubtless have peremptorily directed the book, in whatever condition found at his death, to be taken for conclusive proof of the state of the accounts; but he has not done so.” This case, as we view it, is an authority against the present complainant. The court, from a construction of the will alone, declare that it was not the intention of the testator to make the book conclusive proof. If his language had shown that he intended it to be conclusive, the court would have held it to be so. In the case under consideration, there is no uncertainty in the expressions, nor any doubt of the intention as appearing upon the face of the will.

The other case in Watts, page 80, Hoak v. Hoak, related also to advancements made and entered on book against the testator’s several children. The court in this case also, as in the former, gave a construction to the language of the will, and by that construction determined what was the intention of the testator. It was from the words of the will determined that the book was not meant to be conclusive. Neither of these cases is authority for allowing parol proof to contradict or explain the words of a will.

In the construction of wills, the great object is always to ascertain the intention of the testator. That intention is made known by language. It may be awkward, obscure and ungrammatical, but it must be language ; and one of the important rules for the construction of wills is, that its language must be interpreted according to its proper acceptation. In accordance with this rule was the determination in 8 Watts 240, where two rooms of a house had been devised to a woman for life, with the privilege of selecting the two which should best suit her. The house was a three stoi-y brick building, situated in a business place, upon Market Square, in Pittsburgh. The testator expressed in the will his intention to be, that she should have a shelter or home during her life. She selected the two rooms in the lower story, which were nearly equal in value to all the rest of the house ; one of the rooms was occupied as an office before and after the death of the testator. Yet as the words of the will would embrace these rooms, the claim of the devisee, according to the selection she had made, was sustained.

But though the intention of a testator is to be ascertained by the expressions he uses, it is not denied, that parol testimony is admissible in questions arising in reference to the disposition of the estate. It is admissible to explain a latent ambiguity. Where extrinsic evidence creates the difficulty, it must be admissible for the purpose of explaining or in removing it. The situation of the testator in regard to his property, his declarations, the situation and circumstances of the property, and the relation of the persons named in the will, may all, it is conceded, be the subjects of proof upon the trial, but not for the purpose of altering or in any way changing the will itself.

The testimony on file in this case has not been looked into by the court. The cause is decided upon the demurrer alone; and it determines, that nothing as set forth in the bill, by the testator said, done, or omitted, at the time of executing his will or at any time afterwards, can alter, contradict, or control the words used by him in the will itself.

The bill is dismissed.  