(q) Hunt v. Hort, 3 Bro. C. C. 311; Clayton v. Lord Nugent, 13 M. & W. 200.
*A latent ambiguity is where the instrument itself is on the face of it intelligible enough, but a difficulty arises in ascertaining the identity of the subject-matter to which it applies, as if a devise were to John Smith, without further description. In that case the devise would be intelligible enough on the face of it, and if there were only one John Smith in being, no difficulty could arise. But as there are several thousands, it would be impossible to tell which of them was meant without admitting verbal evidence, which would accordingly be admitted. This would be what is called a latent ambiguity, because it would not appear on the face of the instrument, but would lie hid till evidence had been produced, showing that there were a great number of persons corresponding in name with the devisee.1
The force and application of this rule, and the distinction between these two kinds of ambiguity, are so happily expressed and illustrated in a judgment of the Court of Exchequer, in the case of Doe dem. Hiscocks v. Hiscocks (s), that, although that judgment was given in the case of a will, it will be very useful to introduce a portion of it here. "The object in all cases," said the Court, "is to discover the intention of the testator. The first *and most obvious mode of doing this is, to read his will as he has written it, and collect his intention from his words. But, as his words refer to facts and circumstances respecting his property and his family, and others whom he names or describes in his will, it is evident that the meaning and application of his words cannot be ascertained without evidence of all those facts and circumstances (t). To understand the meaning of any writer, we must first be apprised of the persons and circumstances that are the subjects of his allusions or statements, and if these are not fully disclosed in his work, we must look for illustration to the history of the times in which he wrote, and to the works of contemporaneous authors. All the facts and circumstances, therefore, respecting persons or property to which the will relates, are undoubtedly legitimate and often necessary evidence, to enable us to understand the meaning and application of his words. Again, the testator may have habitually called certain persons or things by pecu-liar names, by which they were not commonly known. If these names should occur in his will, they could be only explained and construed by the aid of evidence, to show the sense in which he used them, in like manner as if his will were written in cypher or in a foreign language. The habits of the testator in these particulars must *be receivable as evidence, to explain the meaning of his will.
(r) Saunderson v. Piper, 5 Bing. N. C. (35 E. C. L. E.) 425.
(s) 5 M. & W. 363.' See Doe d. Allen v . Allen, 12 A. & E. (40 E. C. L. K.) 451; Doe d. Gains v. Rouse, 5 C. B. (57 E. C. L. E.) 422; Grant v. Grant, L. E. 5 C P. 380, 727 (Ex. Ch.); 39 L. J. (C. P.) 140, 272.
1 See on the subject of patent and latent ambiguity, Campbell v. Johnson, 44 Mo. 247; Pollen v. Le Roy, 30 N. Y. 549; Pettit v. Shepard, 32 N. Y. 97; Bell v. Woodward, 46 N. H. 315; Piper v. True, 36 Cal. 606 [Aspden's Estate. 2 Wall. Jr. 368].-s.
"But there is another mode of obtaining the intention of the testator, which is, by evidence of his declarations, of the instructions given for his will, and other circumstances of the like nature, which are not adduced for explaining the words or meaning of his will, but either to supply some deficiency or remove some obscurity, or to give some effect to expressions that are unmeaning or ambiguous. Now there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons (each answering the words in his will), the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors, of North S. and South S., it being clear he means to devise one only, whereas both are equally denoted by the words he has used; in that case there is what Lord Bacon calls 'an equivocation,' i. e., the words equally apply to either manor, and evidence of previous intention may be received to solve this latent ambiguity; for the intention shows what he meant to do; and when you know that, you *immediately perceive that he has done it by the general words he has used, which, in their ordinary sense, may properly bear that construction. It appears to us, that, in all other cases, parol evidence of what was the testator's intention ought to be excluded, upon this plain ground, that his will ought to be made in writing; and if his intention cannot be made to appear by the writing, explained by circumstances, there is no will."
(t) See Burgess v. Wickham, 31 L. J. (Q. B.) 17.
A latent ambiguity, therefore, is where, on attempting to carry out the contract, it is found that the words used apply equally to two or more different things, and then, the latent ambiguity having been shown by evidence, further evidence is admissible to show which of them was the thing intended (u). Thus, where pre(u) See the judgment of Bovill, C. J., in Grant r. Grant, L. E. 5 C. P. 390; 39 L. J. (C. P.) 146.
Previously to a contract for the purchase of wool being reduced into writing, a conversation had taken place between the buyer and the seller, in which the latter had said that he had a quantity of wool partly of his own clip and partly contracted to be bought of other persons, and by the contract when reduced to writing, it appeared that the defendant purchased of the plaintiff a certain quantity of wool described therein as "your wool," it was considered that evidence of the conversation was admissible to show what the parties meant by the term "your *wool" (v). "The subject-matter of the contract," said Lord Campbell, C. J., "was ' your wool,' and I am of opinion that when there is a contract for the sale of a specific subject-matter, parol evidence may be received to show what the nature of that subject-matter was, and that in effect may be by proving what was in the knowledge of the parties at the time of the contract being made. Now, in order to show that, it was proposed to prove the conversation between the plaintiff and the defendant, in which it was mentioned that the plaintiff had wool of his own, and also that he had contracted for the purchase of other wool. There was knowledge in both parties of what the subject-matter was. There was an offer to buy 'your wool'; that was the specific subject-matter which was to be purchased. Then is there any difficulty in admitting what passed at that conversation ? I think that there is none. It is no part of the contract, and is not adding to or varying a written contract, but it is evidence which enables us to say what the contract referred to. It seems that there was a reference to the wool which was in the possession of the defendant, partly obtained from his own flocks, and partly that which he had purchased from other people."