1. A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to use them will be the sense in which they are to be construed.

2. Where there is nothing in the context of a will from which it is apparent that à testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.

3. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted are insensible with reference to extrinsic circumstances, a Court of law may look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible in any popular or secondary sense of which, with reference to these circumstances, they are capable.

4. Where the characters in which the will is written are difficult to be deciphered, or the language of the will is not understood by the Court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, to inform the Court of the proper meaning of the words.

5. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a Court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property claimed as the subject of disposition, and to the circumstances of the testator and of the family and affairs, for the purpose of enabling the Court to idendrew the will as to instructions Zaskman vs. Dick, 34 O. C. C. 450; given him by testator incompetent. 1 0. App. 36.

tify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.

6. Where the words of the will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will will be void for uncertainty.

7. Notwithstanding the above rule of law which makes a will void for uncertainty, Courts of law in certain special cases admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose."

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§ 1186. Parol evidence.

Parol evidence is not admissible to alter, detract from or add to the terms of a will, nor to correct supposed mistakes therein. It is admissible, in order to place the Court in the position of the testator, but not to render any extrinsic fact part of the will. Such evidence can not supply any defect, or accident, or omission, but it may be shown that part of the instrument is not the testator's will.42

The following are instances in which parol evidence is not admissible in construing wills:*3

1. Filling up a total blank in a will.

2. Inserting a devise omitted by mistake.

3. Proving what was intended by an unintelligible word. 4. Proving that a thing in substance different from that de scribed in the will was intended.

5. Changing the person described.

41 Henry Pro. Law 687.

42 Painter vs. Painter, 18 O. 247; Thompson vs. Thompson, 4 O. S. 333; Worman vs. Teagarden, 2 O. S. 380.

43 Taken from Henry Probate Law and Prac.

Where words in a will are fairly and legitimately applicable to one thing as its name, and are equally applicable to another thing as words of description, parol evidence is admissible to show in which of the two senses the testator was in the habit of using the words. Boggs

vs. Taylor, 26 O. S. 604; Black vs. Hill, 32 O. S. 313.

Parol evidence may be received for the purpose of counteracting fraud in the devisee, and in some peculiar cases to attach a trust to the estate devised. But in such cases the court will act with the extremest caution. Collins vs. Hope, 20 O. 492; Vance vs. Park, 15 C. C. 713: 7 N. P. 138.

The evidence must be clear and convincing. Boughman vs. Boughman, 69 0. S. —

6. Reconciling conflicting clauses in a will.

7. Proving to which of two antecedents a given relative was intended to refer.

8. Explaining or altering the estate.

9. Proving which of several testamentary guardians was intended to have the actual care of the children.

10. Proving what was to be done with the interest of a legacy until the time of payment.

11. Proving that by a bequest of the residue a particular sum was intended.

12. Construing a will with reference to the instructions given for preparing it.

13. Proving that an executor was to be a trustee of the residue for the next of kin.

14. Proving that an executor was intended to take beneficially where, on the face of the will, it was conclusively apparent that he was intended to be a trustee.

15. Controlling a technical rule of verbal construction.

16. Explaining the sense in which the word "relations" was intended to be used.

17. What a testator intended to give by the word "plate." 18. What a testator intended to devise by the words "lands out of settlement."

19. Proving that a portion was intended to be a satisfaction of a bequest of the residue.

20. That a legacy in a codicil was intended to be a substitution for a legacy in the will.

21. Proving that a devise to a wife was intended to be in bar of dower.

22. Supplying a use or trust.

23. Ascertaining whether the real estate was charged with the payment of debts in aid only, or in exoneration of the personal estate.

24. That the intention in appointing a debtor to be executor was a release of the debt.

25. Rebutting a presumption which arises from the construction of words simply qua words.

26. Raising a presumption.

27. Increasing a legacy.

28. Increasing that which is defective.

29. Adding a legacy to a will.

30. Proving what interest a legatee was intended to take in a legacy.

31. Ascertaining an intention which, on the face of the will was indeterminate.

32. Proving that words of limitation were intended to be construed as words of purchase.

33. Proving that executors, who had acted in part and then renounced, were intended by the testator to act only to that extent to which they acted.

34. Proving that the testator meant to use general words in this or that particular sense.

Parol evidence is always admissible to show fraud, deception, or undue influence in obtaining a will, and cases allow a very extensive range of testimony in support of, and in reply to, evidence tending to show fraud, undue influence and weakness of mind as the moving and proximate causes of a will.“

1187. Declarations of the testator.

A testator's declarations are not admissible to effect the construction of a will. They are admissible on question of fraud and undue influence.44a They are admissible to show the state of a testator's mind.1

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Where a testator devised all of his "home farm" to his 44 Henry Pro. Law 690.

Our courts hold that they are not admissible, Chaney vs. Coulter, 29 O. C. A. 188, quoting: The law is that declarations of the testatrix made before or after the making of the will if near such time are admissible to prove state of mind of the testatrix, but are not admissible to prove the fact of undue influence. If the declarations tend to prove both the fact of undue influence and the state of mind of the testatrix, then the court must admit the testimony and instruct the jury that it can consider the declarations only so far as they tend to prove the state of mind of testatrix. Boepple vs. Mellert, 24 0. C. C. (N.S.) 410.

45 Redf. on Wills 553, after a careful consideration of the numerous authorities, states that the declarations of a testator near the time of making a will, so as to be

regarded as part of the transaction, should be received upon the principle of evidence, as part of the res gestae. On the other hand, mere naked declarations of the testator, made so remote from the time of execution as not to form part of the res gestaem, to the effect that attempts at fraud or undue influence had been made, or had compelled him to make a will contrary to his real purpose and intent, seem wholly inadmissible upon recognized principles of evidence. See 46 Bull. 161. As to presumption of having destroyed will, see Gurley vs. Armentrout, 6 C. C. (N.S.) 156; 27 C. C. 199 (1905).

Plaintiff in a will contest is a competent witness to testify as to acts of the testator and the manner in which these acts were performed, although he is a devisee and son of decedent. Wilson vs. Wilson, 19 Dec. 188.

widow in an action by a residuary devisee to recover land which the defendant claimed under the devise, as part of the home farm, declarations of the testator that he had received. a large part of his means from the ancestor of the plaintiff, and that, in consequence of such aid, he intended to will the premises in question to them, cannot be given in evidence as showing the extent or boundaries of the farm."

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In another Ohio case it is said "True, the trustee alleges in his answer that he knows from conversations held with the deceased that he contemplated a remote period as the time of listribution, but we are not to regard any such averment. We are to find the intention of the testator in the will itself, and are ot at liberty to allow its terms to be varied or contradicted by Conversation or parol statements made either before or after its execution.47

The declarations by a testator to the scrivener of the will, with proof of the provisions of a will of the testator, from which the will in question was copied, are not admissible to explain conflicting provisions of the will itself.48 While declarations of a testator are not admissible generally to aid in construing the will, yet they are admissible to show the condition of his mind at the time he made his will when the question of his mental capacity is at issue.49 Likewise declarations may be sometimes admitted to show undue influence and show the motive which actuated him in the disposition of his property."

46 Taylor vs. Boggs, 20 O. S. 516. 47 Hamilton vs. Rodgers, 38 O. S. 257; Banning vs. Banning, 12 O. S. 437.

48 Clark vs. Trustees, 3 C. C. 152; 2 C. D. 87; Page on Wills, §§ 820,

983.

49 Page on Wills, $$ 400, 474. 50 Page on Wills, §§ 423, 500. Thus in the case of Waterman vs. Whitney, 11 N. Y. 157, which presents a careful analysis of this matter, Mr. Justice Seldon says: "The difference is certainly very obvious between receiving the declarations of the testator to prove a distinct external fact, such as duress or fraud, for instance, and as evidence

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merely of the mental condition of the testator. In the former case it is mere hearsay, and liable to all the objections to which the mere declarations of third persons are subject; while, in the latter, it is the most direct and appropriate species of evidence." Questions of mental competency and of undue influence belong, in this respect, to the same class; because, as is said by Jarman, in his work on Wills: "The amount of undue influence which will be sufficient to invalidate a will must, of course, vary with the strength of weakness of the testator." 1 Jarm. 36. So the mental strength or weakness of the testa