testator, apparent upon the face of the will.

There are many

may be safely de

others of the same character, from which it clared, that any mistake, apparent upon the face of the will, in such form as to leave no reasonable doubt of the testator's intention, and especially where it is the result of miscalculation of figures, whereby the amount of a legacy is stated differently from what the accomplishment of the testator's declared intention required, will be corrected by way of construction. As where the testator after writing inaccurately the amount of his wife's annual income, making it £1560, directed his trustees to add an annuity of £440, so as to raise it to £2000, it was held that she was entitled to have it made up to that amount at all events, and without reference to the amount required to effect it. And a similar rule has been adopted in other cases. 43 And where the testator gave a legatee "£500, in addition to £1500 which I have before bequeathed to him," when in fact he had only given him £1000 before, it was held that the legatee was, by implication, entitled to £2000 in all.44 So also where the will directed the trustees to pay £300 to A, the amount due on bond, and in fact there was but £120 due, it was held that the legatee was entitled to the whole £300.45

139.

* Ante, pt. 1, §§ 32 – 35.

Ouseley v. Anstruther, 10 Beav. 453; Read v. Strangways, 14 Beav.

"Trevor v. Trevor, 5 Russ. 24.

* Jordan v. Fortescue, 10 Beav. 259.

* Whitfield v. Clemment, 1 Mer. 402. In the recent case of Thompson v. Whitelock, 4 DeG. & J. 490, to which we have already adverted, a similar question arose, the testator reserving out of the sum given his wife £4100, of which he gave her only the use, during her life, directing the principal to be thereafter divided among his relatives, to whom he had left legacies in the former part of his will, in proportion to such legacies; adding, "which will just make their legacies double the first bequest." But the sum requisite for that purpose was £6100, and it was held that the intention to double the original legacies was not sufficiently clear to justify the court in holding that £4100 was written by mistake for £6100.

12. And what one has contracted for he is, in regard to the testamentary disposition of his estate, regarded as possessed of, as his own property. Thus lands contracted for will pass under a general devise of all lands.46 And the same rule applies to stocks held by way of mortgage, or any other imperfect or defeasable title, provided they are so far the property of the testator, before his death, that he was accustomed to deal with them as his own.47

48

13. There are many other terms, of frequent occurrence in legacies, in regard to which there have been almost an infinite number of decisions, but cases generally depend so much upon their peculiar circumstances, and the accompanying context, that one can afford very slight aid towards the determination of another not precisely similar. Thus the word "jewels" is often brought under discussion, as in Attorney-General v. Harley," where the testatrix directed all her jewels to be sold, except certain rings, and her necklaces of every description, pearls, garnets, cornelians and watches, which she gave specifically; and it was held that a diamond necklace and cross came under the direction for sale, and the pearl necklace passed under the specific bequest.

14. A question arose, under the will of the celebrated Dr. Willis, whether a collection of manuscript notes, in thirty-two uniformly bound volumes, and which contained copies of daily reports of the testator as a physician of his attendance upon George the Third, made to the Queen in Council, passed under

Collison v. Girling, 4 My. & Cr. 63. The Lord Chancellor, Cottenham, here puts the illustration of a person having purchased a large quantity of wool, and by his will giving all his personal estate, except his wool, to one, and all his wool to another, his lordship inquired, "could there be any question as to the title of the wool, so contracted for, although the party so contracting to sell have it not himself, but had to procure it to enable him to fulfil his contract? . . . . What a party is entitled to under a contract, he considers as his own.” 49 5 Russ. 173.

....

a bequest of "all and every my books in and about my house," and it was determined in the affirmative.49

15. There is no question but errors in the description of the subject matter of the bequest may be corrected in the same manner and to the same extent that any other mistakes in written instruments may be set right. And in the description of the subject matter, as it must of necessity be supposed to have had reference to some portion of the testator's property, there is a much narrower range of objects from which to select, in the application of the words to the subject matter, than in the case of uncertainty in the description of the legatee. And in applying the words of the will to the subject matter, we must look through the list of testator's estate, and select that portion which is best designated. And in this mode, by the aid of extraneous evidence, which is properly receivable, there will, in general, be very little difficulty in arriving at the testator's intention with reasonable certainty.50

* Willis v. Curtois, 1 Beav. 189. In this case the testator, having three places of residence, at A, B, and C, bequeathed the one at A to his nephew; and also "all his carriages, horses, implements, and his live and dead stock and chattels in and about the premises at A, and also his household goods and furniture, pictures, plate, linen, china, liquors of all sorts," &c., it was held that the household goods, furniture, &c., at B and C, passed by the bequest, but whether a bust would pass under the latter words, quære?

50

2 Wms. Exrs. 1080; Swinb. pt. 7, § 5, pl. 7, where it is said: "The error of the testator in the proper name of the thing bequeathed doth not hurt the validity of the legacy, so that the body or substance of the thing bequeathed be certain. For example, the testator doth bequeath his horse Bucephal, whereas the name of his horse is Arundel, this error is not hurtful, but that the legatary may obtain the horse Arundel, if the testator's meaning be certain. For names were devised to discern things. If, therefore, we have the thing, it skilleth not for the name." But where the misdescription is such that the thing intended cannot be made to conform to the name given it, the bequest must fail. Swinb. pt. 7, § 5, pl. 8. "The error in the name appellative of the thing bequeathed doth destroy the legacy." This term "appellative" seems to be used as a designation of the genus, as horses, oxen, gold, or apparel, in regard to which it is here said that the name of the one cannot carry the other. But as to an

16. In alluding to some of the American cases upon the questions discussed in this section, we shall, probably, do little more than to repeat our former propositions, under different aspects. It seems to be regarded as well settled that the interest of the mortgagee, at any time before final foreclosure, is merely of a chattel character. And the fact of having entered for foreclosure, under the statutes of some of the states, where such an entry and continued possession for a short term, limited for that purpose, will operate to bar all rights of the mortgagor, will make no difference; the interest will pass under a bequest of personalty until the foreclosure becomes absolute.51

17. The rule of allowing general terms to receive a limitation

error in regard to the particular species of the genus the consequences are not thus fatal, as where the testator describes the horse, &c., by a wrong name or color, &c., having but one, or where the particular animal intended is otherwise rendered certain.

Fay v. Cheney, 14 Pick. 399. In Penniman v. French, 17 Pick. 404, it is said by Putnam, J. that promissory notes are to be regarded as choses in action following the person of the owner, and not as having any location, either within the dwelling or without. A bequest of money will only include money on hand or deposited in bank, and not money due. Beck v. McGillis, 9 Barb. 35; Mann v. Mann, 1 Johns. Ch. 231. And in Beck v. McGillis, supra, it is said, a bequest of all bonds and mortgages for sales of land made, or to be made hereafter, cannot be so construed as to include contracts for the sale of lands. There is a case in Pennsylvania, (Smith v. Davis, 1 Grant's Cases, 158,) where it is said, the word "money" in a will may be construed money on hand and in bank, or may stand for the whole personal estate, whichever sense will best effectuate the general intent of the testator, as indicated by the whole instrument. But we apprehend the latter construction is only allowable under such peculiar circumstances as very clearly indicate that such must have been the testator's meaning in the use of the term. It is said in Fulkeron v. Chitty, 4 Jones, Eq. 244, that the word "money" may be so construed as to embrace bank-stock, notes, and bonds, where the context of the will favors that construction. But money found after the death of the testator, in a secret drawer of a chest belonging to him, will not pass by a specific bequest of the chest, but will form part of the residue of the estate, for which the executor must account. Smith v. Jewett, 40 N. H. R.

upon their meaning, with reference to the preceding bequest, obtains, to a certain extent, in all countries, and in all courts. Thus a bequest of "all my out-door movables," following a bequest of my chaise and easy-chair," and followed by an exception of "my stock and hay," was very properly held not to include promissory notes; and there being no other bequest in the will which could embrace them, they were held to pass under the statute of distributions as intestate estate.52

18. A bequest of $500 "to be taken out of such property as the legatee shall think proper," will not justify a selection from the real estate, but the legatee may take any of the personal estate at its market-value.53

19. As before stated, in regard to the established rule in the English courts, it seems to be well settled in the American courts that, as a general thing, the bequest of the interest of a particular sum will not be construed the same as giving an annuity of the same amount, although payable annually; but it will be regarded simply as the gift of the income or interest of that amount.54 And in the last case cited, contrary to some other cases and to the general rule, it was held, that it would not in such case become the duty of the executor to invest the principal until the end of the year, and that consequently no payment would become due until the expiration of two years from the death of the testator. But in one case,55 it was considered, that the bequest of the interest of a certain sum, not setting apart any fund for the payment of same, was a gift of

* Penniman v. French, 17 Pick. 404. And the terms, "all of everything on hand," in connection with a bequest of household furniture and tools, was held not to pass promissory notes and other choses in action. Young v. Young, 3 Jones, Eq. 216.

* Fisk v. Cushman, 6 Cush. 20. And where the legatee has an unlimited election, as to the quantity, she may take the whole. Garrison v. Eborn, 3 Jones, Eq. 228.

Booth v. Ammerman, 4 Bradf. Sur. Rep. 129. "Brimblecom v. Haven, 12 Cush. 511.