
    John McElrath, plaintiff in error, vs. Sallie B. Haley et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Wills — Evidence—Acts and Sayings of Testator. — In 1862, Roath purchased lot number forty-five, in the city of Augusta, with a front of sixty feet, and running from Ellis to Greene street, and was residing on it when, in March, 1866, he purchased lot number forty-four, a vacant lot adjacent to number forty-five, of the same front and running the same length as number forty-five. He used part of lot forty-four as a flower garden, and part as a vegetable garden. There was a fence around both lots, and a fence divided them when Roath purchased forty-five, and the evidence is conflicting as to the time when the dividing fence was taken down by Roath, whether it was before or after the execution of his will. In Roath made his *will, and in one item “devised and bequeathed my house and lot on Ellis street, in the city of Augusta, where I- now reside, to my wife for her natural life, and after her death, to my two nieces, M. and S. B. Crocker.” In another item, he gave all the balance of his estate, real and personal, to his wife, absolutely. Testator died in November, 1867:
    Held, That the acts and sayings of Roath, which go to show that, at the time of the execution of the will, he considered and treated the two lots as one and as constituting the house and lot where he then resided, are competent as evidence in behalf of the .remaindermen in an action of ejectment brought after the death of the wife of Roath to recover lot number forty-four.
    3. Evidence — -Admissions “With a View to Compromise” — New Trial. — The widow of Roath had built a house on forty-five, had married again and died, ’and the action was against her second' husband. On the trial, one of the plaintiffs testified, by interrogatories, that the widow of Roath, some time after the building of the house, said to her, (plaintiff,) “She was a fool for building the house, and if she had her way she would tear it down, if she could get her money back.” And further testified, over defendant’s objection, “She also said she had been to see her lawyers, Barnes & Cumming, and they told her * * * she offered, if we would do -this, to give us up the house on Ellis street, but this was never done:”
    ■ Held, That it was error to admit that portion of the testimony objected to by defendant. If it was an^ offer of compromise, it was illegal testimony. If otherwise admissible, the whole of what she said should have been stated, and if stated, should have gone to the jury. Where the evidence is conflicting, and illegal testimony be admitted which might, and probably did, injure the party objecting, a new trial will be granted.
    Will. Evidence. New trial. Offers of compromise. Before Judge Twiggs. Richmond Superior Court. October Term, 1872.,
    Sallie B. Haley, formerly Sallie B. Crocker, and Mabel E. Crocker, brought complaint against John McElrath for lots numbers forty-four and forty-five, in sub-divisions of the city of Augusta, as found on map prepared by William Phillips. The record fails to disclose the plea filed by the defendant.
    The evidence made the following case: On July 1st, 1862, David L. Roath purchased from W. J. Reed lot number forty-five, in the city of Augusta, with the improvements thereon, fronting on Ellis street sixty feet, and running back to Greene *street, of the same width. Roath resided on this lot until his death, in the fall of 1867. On March 22d, 1866, he purchased from Henry H. Cumming lot number forty-four, fronting sixty feet on Ellis street, running back of the same width to Greene street; and adjoining on the west lot number forty-five. At the time of this second purchase, there was a dividing fence between the two lots. The evidence is conflicting as to when this fence to the rear of the house on number forty-five was removed. Roath used the front portion of this last purchase as a flower garden, and the back portion as a vegetable garden. On September 22d, 1866, he made his will, containing the following provisions:
    ‘■‘Item 1st. I devise and bequeath my house and lot on Ellis street, in the city of Augusta, where I now reside, to my dear wife, Frances A., for her natural life, and after her death to my two nieces, Mabel E. and Sallie B. Crocker, to be held in trust for my two nieces during their lives.
    “2d. My accounts as guardian of my nieces, Mabel E. and Sallie B. Crocker, show a considerable indebtedness from them to me. I discharge and release this indebtedness entirely.
    “3d. All the rest and residue of my estate of every kind and description, real and personal and mixed, notes, bonds, money and accounts I give, devise and bequeath to my said wife, Frances A., absolutely and forever.
    “4th. I direct that there be no inventory or appraisement of my estate made, and expressly relieve my executrix from the necessity of making annual or any other returns to the Court of Ordinary or to any other Court.
    “5th. I appoint my said wife, Frances A. Roath, executrix of this my last will and testament.”
    Sallie B. Crocker married E. W. Haley, on October 10th, 1868. Mrs. Roath built a house on lot number forty-four during the year 1868. She spent in improvements over $2,400 00, which amount she realized from the sale of railroad stock. After she completed the house she married the defendant. She died on June 10th, 1871.
    The plaintiffs sought to show by the acts and declarations *of the testator that at the time of the execution of his will he considered lots numbers forty — four and forty-five as together constituting one lot, to-wit, the lot whereon he then resided; that he treated them as one lot, and that in all the plans for the future, in connection with his house, he was governed by this idea. All of this testimony was objected to, the objection was overruled, and the defendant excepted.
    In answer to 9th interrogatory propounded to Sallie B. Haley, she stated that Mrs. Roath “remarked to her, some time after she had built the house on Greene street, that she was a fool for building it; that if she had her way she would tear it down, if she could only get her money back. She also said that she had been to see her lawyers, Barnes & Cumming, and they told her * * * She offered, if we would do this, to give up the house on Ellis street, but this was never done.”
    The defendant objected to the last two sentences of this answer. The objection was overruled and the defendant excepted.
    The jury returned a verdict for the plaintiffs. Whereupon, the defendant moved for a new trial upon the following, among -other grounds:
    1st. Because the verdict is contrary to the law and the evidence.
    2d. Because the Court overruled the objection of defendant to the admissibility of other parol testimony than what was 'necessary to ascertain and fix the lot in dispute, the objection being that no other parol testimony was admissible in this case to aid in the construction of the will.
    3d. Because the Court erred in overruling the objection of defendant to the admissibility of the following testimony, contained in the answers of Mrs. Haley to 8th direct interrogatory addressed to her, to-wit:
    “She also said she had been to see her lawyers, Barnes & Cumming, and they told her * * * She offered, if we would do this, to give up the house on Ellis street, but this was never done;” and allowed said testimony to go to the jury, *the ground of objection being that said testimony was irrelevant, and improper to be considered by the jury.
    The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.
    Barnes & Cumming, for plaintiff in error.
    Frank H. Mirrer, for defendants.
    
      
      Evidence — Admissions—“With View to Compromise” — New Trial. —“Evidence that the owner refused to pay the broker, but offered as a compromise to pay a fixed amount and to give another specified amount to a church, is inadmissible under the rule that propositions made with a view to a compromise are not proper evidence.” Emery v. Atlanta, etc., Exchange, 88 Ga. 321, 14 S. E. Rep. 556, citing with approval the principal case.
      Same — Same—Same.—“Where plaintiff was interrogated by defendant on the stand touching certain admissions made in the presence of certain persons and at a certain time, and did not set up what he said was in reference and with a view to compromise the case, but gave his version of the conversation, the defendant should be allowed to give his version of the same transaction by himself or the witnesses present, and such version of plaintiff’s admissions should not be ruled out because made in reference to compromise.” Scales v. Shackleford, 64 Ga. 173, is distinguished from the principal case.
    
   TrippE, Judge.

The defendant surrendered lot number forty-five and the contest was over lot number forty-four. The will gave the house and lot on which he resided at the time of its execution, to his wife for life, with the remainder to defendants in error, the plaintiffs in the action of ejectment. The defendant below objected to the admission of any parol evidence to show that the house and lot on which testator resided were words intended by him to include or to convey more than lot number forty-five. The plaintiffs claimed that testator intended to give both lots — - his whole place; that he bought lot forty-four with the purpose of making it a part of his homestead; that he treated it and considered it as such, using it as a flower and vegetable garden, ornamental and useful to his home, and declared his intention of still further making it an ornament, by erecting a fountain on it, etc. Was all this competent testimony? In this particular case, I consider the great test to be, whetíier the testator used the word “lot” with reference to the application of it to the artificial divisions of the city of Augusta, as distinguished on the map, or by the city survey, into lots by numbers and sizes; or did he use it as designating the place on which he lived, as defined by his deeds or title, and his inclosure. Mr. Greenleaf says: “If the language of the instrument is applicable to several persons— to several parcels of land — to several species of goods — to several monuments or boundaries — to several writings, or the terms be vague and general — in all these, and the like cases, v parol evidence is admissible of any extrinsic circumstances ^tending to show what person or persons, or what things were intended by the party, or to ascertain his meaning in any other respect:” 1 Greenleaf’s Evidence, section 288. This Court, in Billingslea vs. Moore, 14 Georgia, 374, says, “The general rule is that parol testimony is inadmissible to explain a will, except for the purpose of proving the circumstances surrounding the testator; that is to say, his situation in his relation to persons and things about him,” and in 20 Georgia, 689: “Parol evidence is admissible for the purpose of applying a description to its subjects,” etc. A Court and jury, in the effort to discover the intention of a testator, may, as it were, put themselves in his place, and thus ascertain how the terms of the instrument affect the property or subject matter: 15 Pick., 400; 1 N. & Mc., 534. Upon the question of the admissibility of. parol evidence to explain ambiguities, there is much confusion, and, also, contradiction in the authorities. When most of them were written or pronounced, a distinction was drawn between a patent and a latent ambiguity, the latter being explainable and the former not. And yet in numberless decisions the distinction was so refined or disregarded as to almost make the line undistinguishable, or to set aside the rule. By our statutory provisions the rule is totally abolished.

But to revert to the test which was stated above. Has the word “lot,” as used in this will, such a fixed, specific meaning, to be ascertained or controlled by maps, charts or surveys, that it cannot be permitted to be explained to mean anything but a certain number, to-wit: city lot, known in the survey as number forty-five? It is often used in common discourse by one referring to his home, as meaning the place or premises on which he lives, without reference to where the surveyor’s chain was run, except as it may have marked the outside boundaries or limits of what constitutes those premises. If one buys two city lots, with one inclosure around all, pulls down the dividing fence, uses both as parts of one homestead, considers the one last purchased as protecting his home against too close invasion, by its being liable to be built on, makes it a part of *his yard and gardens, the farthest part of its front not being, probably, in this case, more than sixty or seventy feet from his house, we do not think it would be doing violence to any rule of law to allow such facts, and all others tending to show that, in a devise of the house and lot on which such owner lived, it was intended by him to give all that constituted his house to the object of his bounty.

The portion of Mrs. Haley’s interrogatories objected to by defendant was imprpperly admitted in evidence. There was evidently a portion of her answer stricken out by the Court. What that was, we do not know. It was certainly a part of the sayings of Mrs. McElrath, and it was offered against her title as admissions, for instance. If part of what she said was admitted, all should have been admitted. But if this were not so, in its present form, it'leaves a blank which opens the matter to conjecture, and a damaging conjecture, against defendant. Eor, naturally, one would suppose it was a direction from her attorney that she did not have full title, and that the proposition to “do this,” was to give up one right to make good another claim that was not good or valid, and thus an impression was, in all probability, made on the mind of the jury that defendant’s counsel had advised against the validity of his client’s claim. Further, if Mrs. McElrath (then Roath) made this statement as an offer of compromise, it was not admissible. ¿Section 3736 of the Code says: “Admissions or propositions, made with a view to a compromise, are not proper evidence.” This enlarges the common law rule, which did not exclude the admission of distinct facts. When testimony has illegally gone to the jury which might, and probably did, injure the party objecting, it is a ground for a dew trial.

Judgment reversed and a new trial granted.  