majority">Ellsworth, J.

The propriety of receiving parol testi-

mony, for the purposes for which it was offered, and the effect of that evidence when received, (the two questions made,) are not, in our judgment, attended with any serious difficulty. They grow out of the application of a well known and well settled principle of law, rather than the introduction of any new one, as is generally seen in cases of this character. We agree, most fully, that no man can make a parol will; nor can the language of a will, when made, be denied, or qualified, or even explained, by parol. The testator must speak exactly by the language he makes use of, and we can impute to him no other words than are written in the will, and what they mean of themselves. Were we to do otherwise, we should repeal the statute of wills, as well as go abreast of that great principle of the common law, that written evidence must prevail over unwritten. In other words, the rule is directed against the admission of any other evidence of the language employed by the testator, than that which is furnished by the language itself. The will may be read by the light of surrounding circumstances, in order to see how the language shall be applied, and in this collateral particular, to learn the intent and meaning of the testator; but the will is the only outward and visible expression of the testator’s meaning ; no other words are to be added or substituted. The end sought is, not to learn what the testator intended as contradistinguished from what his words express, but just as in written contracts, we receive parol evidence, to explain latent ambiguities, technical phrases, terms of art, scientific words, and the meaning óf a foreign language. We hold the rule as laid down in 1st of Jarman, 348, 349 : “ As the law requires wills, both of real and personal estate, to be in writing, it can not, consistently with this doctrine, permit parol evidence to be adduced, either to contradict, add to, or explain the contents of such will; and the principle of this rule evidently demands an inflexible adherence to it, even where the consequence is, the partial or total failure of the testator’s *527intended disposition ; for it would have been of little avail, to require, that a will, ah origine, should be in writing, or to fence a testator round with a guard of attesting witnesses, if, when the written instrument failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied or its inaccuracies corrected.”

The language used in this will is, “ I do give and devise to my beloved wife, all the furniture and all the property she brought with her.” It is obvious, Mrs. Spencer must resort to parol proof, to identify the property which she is to take. This is just what she is attempting, and it is in this view, we think, the evidence is clearly admissible. The words are, “ the property which she brought,” &c. The enquiry, therefore, is, where is that property, and of what does it consist ?

First, we will speak of the principal of the bequest. That is the chief obstacle, which has been presented by the argument of the counsel. No attempt has been made by the administrator to deprive Mrs. Spencer of this, vested as it is, in her name, in the savings bank ; and we think there could be none. The property she brought with her consisted, at the time of the marriage, almost entirely of certain notes of hand. These she has collected, and deposited, or their avails, in the bank, in her own name, and for her own use; her husband disclaiming any right to it, and never exercising any dominion over it. She has paid the taxes, kept her own bank book, and has caused this money, the avails of her specific notes, to accumulate, for her sole and exclusive enjoyment. Now, if these specific notes were in being, they would certainly pass, by the language of the will; but, suppose some of the notes had been taken up, and renewed by their endorsers, or that new loans had been made by her, of that principal, and new notes taken in her name, with Mr. Spencer’s consent, in order that the property might be kept separate and distinct from his own, would it not all pass by the description, “ the property she brought,” &c. ? The word *528“ property,” is one of large import, and, we think, was used, in this case, upon mature reflection, to include the avails of the specific notes, as they had been collected. None of the specific things which she had, at the time of the marriage, were remaining, at the date of the will, so far as appears from the motion, or, as has been spoken of, during the argument. What then was to pass by the will, but the avails of the notes 1 Besides, that was exactly her property; the testator meant it so ; he called it hers ; treated it as hers ; and we look to these circumstances to learn, whether this is not what he described, by the language made use of in the will. If this is not so, then this provision for his wife, can not take effect.

Were it not for the peculiar views of our courts, as expressed in Dibble v. Hutton, Griswold v. Penniman, Whittlesey v. McMahon, and The Fourth Eccl. Soc. of Middletown v. Mather, that property situated as this is, can not be considered to be hers, either at law or equity, it would be hers, independent of the will. It would certainly be so, everywhere else, and ought to be here. But our courts do not go so far as to prevent the husband from treating it as hers, and giving it to her by will.

It was claimed, by the appellee’s counsel, that this legacy was not specific, but a mere general gift, of so much in value. We do not so consider it. It is specific and exclusive, and if the property, or its substitute, having the same name, can not be found, we have no hesitation in saying, Mrs. Spencer will take nothing by this clause of the devise. So, if value were the thing given, we would ask, at what time is the value to be computed,—the time of the marriage, the date of the will, or the death of the testator ? and what is the rule of valuation ? the principal, or the principal and its interest ? It appears to us, the intention of the testator can not be accomplished, by considering the gift as one of value. On the other hand, such a construction might manifestly disappoint him, as if half the specific property had been lost, or the *529whole of it had greatly increased in value. All he intended was, that their marriage should not be held to transfer her property, principal or interest.

Nor do we think there is any doubt, provided the language of the will is held to describe the property of the notes' and their avails, that the interest on the avails is not excluded, by the description, but is included; for, if the notes themselves would have passed by the description, any unpaid interest would have passed, for the principal and interest together would make the notes; the interest is mere increment, and we believe that it is a sound principle of law, that, until the accruing interest on loans, or the accruing profits on stock, have become separated from the principal in one way or another, they pass with the principal itself, and have themselves no distinct name or existence, unless the language is quite explicit.

Besides, in this case, the parol proof shows, the testator treated all this property, principal and interest, alike, as her property, as the very thing he describes in the gift to her, when he gives her all of it. It is not to be reduced, by separating from it its enhanced value, whether that consists in uncollected interest, undeclared profits, or anything else which is merely accessary to the principal, and is, in common parlance, a part of it: and this, the appellee’s counsel insist, is the language of this devise, that this accruing interest or profit is separated. They dwell, with emphasis, on the last words of this clause, “and all the property she brought with her, at the time of our intermarriage.” These words, they insist, are definite, and, ex vi termini, exclude all interest and profits subsequent to the marriage, although they constitute, as yet, a part of the principal itself; and, on this ground, they say, that no parol proof can be received, to show that the testator intended this interest or profit should be included, in the language used in the will. We are satisfied, these words are not' words of exclusion, but of *530description, and that the testator, by the language used, gave his widow, all her property indiscriminately, whatever was its form, or its value, which she brought with her, and which he had always treated as hearing that description. The reference to the time of marriage, is one to which we attach no special importance. If we were to look at that period alone, we should find nothing for the will to operate upon. We prefer, therefore, to consider the word property, as embracing all that she brought, whether it be principal or interest, and all which bore the name, and was considered and treated by them as the property, which she brought with her.

In this opinion, the other judges concurred.

Decree of probate disaffirmed.

Citation profile

How this case has been treated — in progress