majority">

Ajier argument, the opinion of the Court was delivered hy

Royce, J.

The whole of the testator’s home farm, which includes the premises in question, was by the will to belong to Eliphalet Wells and his wife, provided he should, within a reasonable time, to be limited by the judge of probate, pay to the other devisees what her share fell short of the appraised value of said farm. And to show that Wells did thus acquire the title to himself and his wife, at least,as against the plaintiff, the defendant relies on the transaction evidenced by the order and receipt of Nov. 27th, A. D. 1817, as amounting toa payment to the plaintiff in execution of that part of the will.

*311The parties evidently did not contemplate an arrangement affecting the hotne farm alone,, especially, as Wells had not then signified his election to retain it under the will. But upon the supposition, (the correctness of which we have no occasion to dé-cide,) that payment to a single devisee in full of his interest in the estate generally, though made before the election was signified, would operate without a deed, after the election made, to extinguish the legal interest of such devisee in the farm ; the only question to be determined relates to the evidence offered by the plaintiff and rejected at the trial.

The objection to the testimony of the witness offered was founded in the rule of law, that oral evidence shall not be received to contradict, vary or control, the evidence of written documents. This rule is universally acknowledged, and we have only to ascertain the extent of its application in the present case. It does not operate to exclude parol evidence where there is any ambiguity or uncertainty, arising from extrinsic circumstances, to be removed ; for some latent reference is then necessarily to be presumed, either from the words employed, or from the subject matter of the stipulation or contract. It does not always follow that a written contract is void for uncertainty, or rendered inoperative by the statute of frauds, though a reference to extrinsic facts and circumstances, which are to influence the operation of the contract,is implied from the writing itself.—Couch vs. Meeker, 2 Conn. Rep. 302 ; Wait vs. Fairbanks, Bray. 77 ; 1 Mason 9 ; 8 T. R. 379. In the case of Cole vs. Wendel, 8 Johns. 90, the defendant had contracted in writing to purchase of the plaintiff certain bank shares, on which 10 per cent only had been paid in, and to pay an advance of 5 per cent on the shares when received. The question was, whether the 5 per cent was payable on the nominal amount of the shares, or on the 10 per cent which had been paid in upon them ; and to determine it, parol evidence, though objected to, had been admitted at the trial. Spencer, J. says, in delivering the opinion of the court, — “ The terms of the contract are equivocal, and the ambiguity is a latent one ; as such, and on the strictest principles, the circumstances of the case may be proved and taken into consideration, in determining how far the 5 per cent advance was to be calculated.” It is also a general rule, that when a writing not under seal is given in evidence as containing an admission of a party, he may explain it, and show it to have originated from mistake. Another qualification of the leading principle first stated has been recognized by the English courts, *312and those of New-York, and generally acted on for a few ... . . ' years past in tins state. It is, that a receipt for money, or a generaI discharge unsealed, is not conclusive evidence to the extent ’ts terms! ^ut ‘s subject to be explained or rebutted by oral testimony. — 2 T. R. 366 ; 2 Johns. 378 ; 3 Ib. 319 ; 5 Ib. 68 ; 8 Ib. 304 ; 9 Ib. 310. It appears by a note of the case of Sessions vs. Gilbert, reported in Bray. 75, that this Court formerly held the rule in regard to receipts to be more limited than it is now laid down. But we believe the distinction there taken has not been followed to any considerable extent, and that the more liberal doctrine contained in the authorities referred to has the general approbation of the profession. And considering that such instruments are daily executed with little or no attention to the comprehensive import of the terms employed, we think a liberal rule of evidence on the subject is required for the furtherance of justice. ‡

There is a looseness and inaccuracy of expression in the two instruments given in evidence in this case, by which it is left in some degree uncertain to what extent they were intended to operate. While the terms of the order admit a construction extending to the payment for real estate, their more obvious application is to such rights and claims as are usually extinguished by payment, or to such kinds of property as might be transferred by delivery to the holder of the order. And this uncertainty is much increased by the exception contained in both instruments, of such estate as was legally incumbered by Robinson’s attachment. No description is given of the property attached, nor estimate of its value, nor is any provision made in case the attachment should be dissolved, or the incumbrance removed. The usual office of an exception or reservation is, to save or keep back something to the party who passes or discharges a right ; but by the use of the word “ legally” in this instance, the intended effect of the exception is rendered vague and uncertain. Whether that expression had reference to the validity of the attachment for the time being, or to its ultimate effect on the title of the estate attached; and whether on failure of the attachment to hold the estate, the exception was to restore it disencumbered to the plaintiff, or to enlarge the benefit of the settlement to the executor, is not readily discovered from the papers alone.

It may be further remarked, that the order and receipt were *313executed, and the order accepted, at the same time ; and together, they amount to nothing more, upon any construction-of them, than a receipt in full, or acknowledgement of satisfaction, for the plaintiff’s interest in the estate. They furnished therefore but 'prima facie evidence that he had been fully paid.

Sheldon & Sargeant, for plaintiff.JBennet & Aiken, for defendant.

On these grounds we think the .plaintiff was entitled to give the explanation which he attempted at the trial, and that the evidence offered for that'purpose should have been admitted.

Judgement of the county court reversed, and a new trial granted*

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