"These cases may be thus defined: Where the object of a testator's bounty, or the subject of disposition (that is, the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator."
1 Doe v. Chichester, 4 Dow, 65; Miller v. Travers, 8 Bing. 244.
§ 781. The interpretation and construction of a contract should be favorable and liberal. Unless an agreement be manifestly intended to be frivolous or inconsistent, it should be so construed as to give it some effect; for the parties must be supposed to have intended something by their agreement. The maxim is, Verba debenl intelligi cum effectu, ut res magis valeat quam pereat3 If words, therefore, be susceptible of two may be so construed as to include such times and places, if an exclusive construction manifestly frustrate the intention of the parties.1 Thus, where a lease was granted for twenty-one years from the day of the date, it was held that the phrase "from the day"was to be regarded as inclusive and not exclusive.2 So, if a note should begin "I promise," and be signed by an agent in this manner: "Pro A. B.-C. D.," or "A. B., agent for C. D.;" it would be held to be the note of the principal.3
1 Burnett v. Kensington, 7 T. R. 222. In the subsequent case of Aguilar v. Rodgers, 7 T. R. 423, Lord Kenyon said: "The words here used are not equivocal, and we ought not to depart from them. It would be attended with great mischief and inconvenience, if, in construing contracts of this kind, we were not to decide according to the words used by the contracting parties. . . . On the grammatical construction of the words, which is the safest rule to go by, I am of opinion," etc. See also Gerrard v. Clifton, 7 T. R. 676; Mansell v. Burredge, 7 T. R. 352; Ware v. Hylton, 3 Dall. 199; 2 Evans's Pothier on Oblig. 38, 39. See also Vattel, B. 2, ch. 17, § 263. " It is not permitted to interpret what has no need of interpretation."
2 Co. Litt. 147 a.
3 See Wigram on Interp. of Wills, p. 42; Proposition II., ante, § 639, note. "Whenever," says Willes, J., in Parkhurst v. Smith, Willes, 332, "it is necessary to give an opinion upon the doubtful words of a deed, the first thing we ought to inquire into is, what was the intention of the parties. If the intent be as doubtful as the words, it will be of no assistance at all. But if the intent of the parties be plain and clear, we ought if possible to put such a construction on the doubtful words of a deed, as will best answer the intention of the parties, and reject that construction which manifestly tends to overturn and destroy it. I admit that though the intent of the different senses, they are so to be understood as to have a legal and actual operation; or if their ordinary and grammatical construction would render the contract frivolous and inoperative, when such was evidently not the intention of the parties, they should be construed according to their less obvious meaning.1 So, also, where the language of a contract, if interpreted in its strict and primary sense, would conflict with the evident intention of the party using it,-as if it would be senseless in view of the circumstances of the case, or wholly inapplicable thereto,-it will be interpreted according to the secondary sense of the words used. Thus, if, in a will, the testator leaves a certain portion of his estate to his "child," who would, according to the strict interpretation of the term, be his legitimate offspring only, or to his "son," who is strictly his immediate descendant, - and it should appear that he had only an illegitimate child in the one case, or no immediate descendant, but only a grandson or an adopted child, in the other, the words of the will would be so construed as to harmonize with the facts of the case.2 So, also, the particles "to," "from," and "until," which, if used in their ordinary sense, are exclusive of times and places to which they refer, parties be never so clear, it cannot take place contrary to the rules of law, nor can we put words in a deed which are not there, nor put a construction on the words of a deed directly contrary to the plain sense of them. But where the intent is plain and manifest, and the words doubtful and obscure, it is the duty of the judges (and this is that astutia which is so much commended by Lord Hobart, p. 277, in the case of the Earl of Clanrickard) to endeavor to find out such a meaning in the words as will best answer the intent of the parties." See also Gibson v. Minet, 1 H. Bl. 569-614. Ante, § 636 a, and note.
1 "Where the words may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law; the intendment which standeth with law shall be taken." Co. Litt. 42 a, b, 183 a; Parkhurst v. Smith, Willes, 332; Wright v. Cartwright, 1 Burr. 282; Fonbl. Eq. B. 1, c. 6, § 13; Shep. Touch. 87, 88; Smith v. Packhurst, 3 Atk. 136; Robinson v. Hardcastle, 2 T. R. 254; Roe v. Tranmarr, Willes, 682; Gray v. Clark, 11 Vt. 583; Patrick c. Grant, 14 Me. 233; Thrall v. Newell, 19 Vt. 202.
2 Wigram on the Interp. of Wills, p. 43; Wilkinson v. Adam, 1 Ves. & B. 422; Woodhouselee v. Dalrymple, 2 Meriv. 419; Beachcroft v. Beach-croft, 1 Madd. 430; Bayley v. Snelham, 1 Sim. & Stu. 78; Steede v. Berrier, 1 Freem. 292, 477; Gill v. Shelley, cited Wigram on Wills, p. 44.
§ 782. This rule of liberal construction will be applied to all cases in which the contract would, if strictly construed, be illegal; for there is not only no presumption in law against the validity of a contract, but, on the contrary, every presumption is allowed in its favor.4 But if the contract be ambiguously expressed, and be susceptible of different interpretations, and the party who is to do the act be actually misled, and perform one act when a different act was intended by the other party, the contract will be construed in favor of the party making the mistake,- on the ground that the mistake was the consequence of the carelessness or negligence of the other party, and he, therefore, should suffer.1 Thus, where an agent is misled by the ambiguity in the orders of his principal, and adopts the wrong construction of them, he will be exonerated, if his act be bond fide.2