Latent Ambiguity

One which does not appear from the words of an instrument, but only from the application of the words to the subject matter. See 117 U. S. 221. A latent ambiguity may arise from the fact that there are two or more persons or objects tojwhich a perfect description will apply. Thus, where lands were conveyed to one by name, and it appeared that therfe were two of that name, it was held a latent ambiguity. 131 Mass. 179. Or it may arise from a misdescription not apparent on the face of the instrument, whereby two persons or objects or none at all are described. 117 U. S. 221. A mere mistake in a description, whereby it is made to apply to something other than was intended, is not an ambiguity. 11 Johns. (N. Y.) 201.

One which does not appear on the face of the instrument. A latent ambiguity is where words apply equally to two different things or subjectmatters; 15 M..& W. 501; but where the parties may have intended either of the two things in dispute, the term does not apply; Webster v. Paul, 10 Ohio St. 534. It is settled both in England and in this country that extrinsic evidence is admissible to explain a latent ambiguity, but there has been some difficulty in defining precisely when and under what circumstances such evidence may be introduced to show the intention. Two rules are laid down in 2 Eng. Rul. Cas. 718, 726, as illustrated by two leading English cases. The first rule is: “Where a determinate intention appears to be expressed by the written instrument, extrinsic evidence is admissible to show that the description of an object contained in the instrument is applicable with legal certainty to either of two objects; and, a latent ambiguity having been thus disclosed, evidence of the surrounding circumstances is admissible to show the objects Is indicated with sufficient certainty, direct evidence of declarations of intention is not admissible.” 6 M, & W. 863. In that case the language of the court was; “If, therefore, by looking at the surrounding facts to be found by the jury, the court can clearly see, with the knowledge which arises from those facts alone, that the testator meant either the lessor of the plaintiff or the defendant, it may so decide, and direct the jury accordingly; but we think that, for this purpose, they cannot receive declarations of the testator of what he intended to do in making his will.” A good illustration of the uncertainty as to the person was, “where a testatrix gave a share of her residue to her ‘cousin, Harriet Cloak,’ and the testatrix had no cousin of that name, but had a married cousin, Harriot Crane, whose maiden name was Cloak, and a cousin T. Cloak, whose wife’s name was Harriet; evidence was admitted to show the testatrix’s knowledge of an intimacy with the members of the Cloak family. In the event ‘cousin’ was read in the secondary sense of ‘wife of a cousin,’ and the claim of Harriet, the wife of T. Cloak, allowed.” 34 Ch. D. 256; 56 L. J, Ch, 171. Cited in the American note to the above case as “a good type of the American doctrine,” was a devise to “the four boys,” where the testator had seven sons, of whom three were shown to be minors living at home; Bradley v. Rees, 113 111. 327, 65 Am. Rep. 422. And in the case of Hardy v. Warren reported in Browne, I’arol Evidence 461, there was a bequest by a woman to her “husband” when she had obtained a void divorce and was living with another man ns his wife. These were held to be cases of latent ambiguity to explain which extrinsic evidence was admissible to determine the persons who were to take. The other rule laid down by the work referred to is: “Assuming that the intention appears on the face of the instrument to be determinate, if, after exhausting such evidence of the surrounding circumstances as is necessary to place the court at the point of view of the maker of the instrument, there is still an ambiguity as to which of two objects is meant, — the description being sufficient to point with legal certainty to either if there were no other, — the intention as between those objects may be proved by direct evidence outside the instrument.” 2 M. & W. 129. It is said that courts of law are very Jealous of the admission of extrinsic evidence to explain the intention of the testator, and that it should be permitted only where an ambiguity is Introduced by extrinsic circumstances; 4 Dow 65; in this case illustrations are given of ambiguity both as to person and subject-matter, as a devise of an estate caller Blackacre when the testator two sons by that name; or to ^ nephew “William” where the testator had no nephew of that name. The rule as laid <Jown by the American cases has been stated to be that where the terms describing the object of the testator’s bounty apply Indifferently to more than one person or thing, evidence may be introduced of any material fact relating to the property claimed, and the circumstances and affairs of the testator, his family, and of the claimant, “and the testator’s declarations made before, at, or after the making of the will, are admissible in this view, but no evidence of mere mistake on the part of the testator or the draftsman is admissible.” Cleverly v. Cleverly, 124 Mass. 314; Appeal of Wagner, 43 Pa, 102; Morgan v. Burrows, 45 Wis, 211, 30 Am. Rep. 717; Doe v. Roe, 1 Wend. (N. Y.) 549. A bequest “to be equally divided between the board of foreign and the board of home missions,” may be shown by parol to have been intended for the Presbyterian boards thus named, there being similar boards controlled by other religious denominations; Gilmer v. Stone, 120 U. S. 586, 7 Sup. Ct, 689, 30 L. Ed. 734. See also, as to the admissibility of parol evidence to show intention. Legacy. See Ambiguity; Patent Ambiguity.

Anambiguity which arises not upon the words of the will, deed, or other instrument, as looked at in themselves, but upon those words when applied to the object or to the subject which they describe. The term is opposed to the phrase “patent ambiguity.” The rule of law is that extrinsic or parol evidence is admissible in all cases to remove a latent ambiguity, but in no case to remove a patent one. Brown.

An ambiguity (q. v.) which does not appear upon a bare inspection of the language of an instrument, but is raised by some extrinsic evidence concerning the subject-matter. The importance of distinguishing between latent and patent ambiguities lies in the application of the rule that, if the ambiguity is latent, parol evidence may be received to show what meaning was actually intended; but not so if it is a patent one. If the language is lucid on its face, but extrinsic facts raise a double meaning, as if a testator gives a legacy "to my nephew John," and evidence aliunde shows that he had two nephews named John, the inquiry into the extrinsic facts may be pursued as far as necessary to ascertain which meaning corresponds with the party's intent. But, if the language itself conveys two meanings, the question which is the one intended must be resolved by the rules of construction, aided, in proper cases, by a general consideration of the circumstances under which the instrument was made. A latent ambiguity arises where words apply equally to two different things or subject-matters. The things must be different; and the parties must, on account of such difference, have intended one, and not the other; for, where the parties may have intended either of the two things in dispute, the term "latent ambiguity" does not apply. A contract for shipment of goods which does not specify which one of two available routes shall be employed, does not present a case of latent ambiguity. Webster v. Paul, 10 Ohio St. 534.