been considered necessary, under this statute, that the testator should subscribe the instrument; it being deemed sufficient that it be signed by him in any part, with his own name or mark, provided it appear to have been done animo perficiendi, and to have been regarded by him as completely executed.1 Thus, where the will was signed in the margin only; or where, being written by the testator himself, his name was written only in the beginning of the will, I, A. B., &c., this was held a sufficient signing.2 But where it appeared that the testator intended to sign each several shoet of the will, but signed only two of them, being unable, from Extreme weakness, to sign the others, it was held incomplete.3 § 273. By the Statute of Frauds, the revocation of a will, by the direct act of the testator, must be proved by some subsequent will or codicil, inconsistent with the former; or by some other writing, declaring the same, and signed in the presence of three witnesses; or by burning, tearing, cancelling, or obliterating the same by the testator, or in his presence and by his direction and consent. It is observable, that this part of the statute only requires that the instrument of revocation, if not a will or codicil, be signed by the testator in presence of the witnesses, but it does not, as in the 1 That the party's mark or initials is a sufficient signature to any instrument, being placed there with intent to bind himself, in all cases not otherwise regulated by statute, see Baker v. Dening, 8 Ad. & El. 94; Jackson v. Van Dusen, 5 Johns. 144; Palmer v. Stephens, 1 Den. 471, and the cases cited in 6 Cruise's Dig. tit. 38, ch. 5, §§ 7, 19, notes (Greenleaf's edit.), [2d edit. (1857) vol. 3, pp. 50-56]; post, vol. 2, § 677. 2 Lemaine v. Stanley, 3 Lev. 1; Morrison v. Turnour, 18 Ves. 183. But this also is now changed by the statute 1 Vict. c. 26, § 9, by which no will is valid unless it be signed at the foot or end thereof, by the testator, or by some other person, in his presence and by his direction; as well as attested by two witnesses, subscribing their names in his presence. See in the goods of Carver, 3 Curt. 29. of this treatise. The latter exceptions still exist in England; but nuncupative wills seem to be abolished there, by the general terms of the statute of 1 Vict. c. 26, § 9, before cited. The common law, which allows a bequest of personal estate by parol, without writing, has been altered by statute in most, if not all of the United States; the course of legislation having tended strongly to the abolition of all distinctions between the requisites for the testamentary disposition of real and of personal property. See 4 Kent, Comm. 516-520; Lovelass on Wills, pp. 315-319; 1 Williams on Executors (by Troubat), pp. 46-48, notes; 1 Jarman on Wills (by Perkins), p. [90] 132, note; 6 Cruise's Dig. (by Greenleaf), tit. 38, ch. 5, § 14, note; [2d edit. (1857) vol. 3, p. 53, and note]. 4 Stat. 29 Car. II., c. 3, § 6. The statThe Statute of 1 Vict. c. 26, § 20, mentions "burning, tearing, or otherwise destroying the same," &c. And see further, as to the evidence of revocation, 6 Cruise's Dig. (by Greenleaf), tit. 38, ch. 6, §§ 18, 19, 29, notes; [2d edit. (1857) vol. 3, p. 81 et seq.; 2 Greenl. Evid. (7th edit.) § 680687;] 1 Jarman on Wills (by Perkins), ch. 7, § 2, notes. 3 Right v. Price, Doug. 241. ute of Frauds, which has been generally followed in the United States, admitted exceptions in favor of nuncupative or verbal wills, made under certain circumstances therein mentioned, as well as in favor of parol testamentary dispositions of personalty, by soldiers in actual service, and by mariners at sea; any further notice of which would be foreign from the plan execution of a will, require that the witnesses should sign in his presence. In regard to the other acts of revocation here mentioned, they operate by one common principle, namely, the intent of the testator. Revocation is an act of the mind, demonstrated by some outward and visible sign or symbol of revocation; and the words of the statute are satisfied by any act of spoliation, reprobation, or destruction, deliberately done upon the instrument, animo revocandi.2 The declarations of the testator, accompanying the act, are of course admissible in evidence as explanatory of his intention. Accordingly, where the testator rumpled up his will and threw it into the fire with intent to destroy it, though it was saved entire without his knowledge, this was held to be a revocation.* So, where he tore off a superfluous seal. But where, being angry with the devisee, he began to tear his will, but being afterwards pacified, he fitted the pieces carefully together, saying he was glad it was no worse, this was held to be no revocation.6 § 274. Documentary evidence is also required in proof of the contract of apprenticeship; there being no legal binding, to give the master coercive power over the person of the apprentice, unless it be by indentures, duly executed in the forms prescribed by the various statutes on this subject. The general features of the English statutes of apprenticeship, so far as the mode of binding is concerned, will be found in those of most of the United States. There are various other cases, in which a deed, or other documentary evidence is required by statutes, a particular enumeration of which would be foreign from the plan of this treatise." 1 Bibb v. Thomas, 2 W. Bl. 1043. 3 Dan v. Brown, 4 Cowen, 490. In several of the United States, two subscribing witnesses are necessary to the execution of a deed of conveyance of lands to entitle it to registration; in others, but one. In some others, the testimony of two witnesses is requisite, when the deed is to be proved by witnesses. See supra, § 260, note; 4 Cruise's Dig. tit. 32, c. 2, $ 77, note (Greenleaf's edit.), [2d edit. (1856) vol. 2, p. 341;] 4 Kent, Comm. 457. See also post, vol. 2 [7th edit. 1858], tit. WILLS, passim, where the subject of Wills is more amply treated CHAPTER XV. OF THE ADMISSIBILITY OF PAROL OR VERBAL EVIDENCE TO AFFECT THAT WHICH IS WRITTEN.1 [* § 275. Written instruments cannot be controlled by parol evidence. 282. The rule does not exclude evidence showing the import of terms. 283. Different cotemporaneous writings may be construed together. 284. It may be shown that the writing is void, or never took effect. 284a. Where part of the contract is left out of the writing, it may be proved by parol. 285. Admissible to prove time of execution, additional consideration, &c. 286. The extent of the subject-matter, and whether parcel or not, may be proved. 287. This is indispensable to place the court in the position of the parties. 288. To what extent extraneous evidence is admissible to define subject-matter. 288a. Summary of late decisions. 2886. Distinction between province of court and jury. 289. Lord Abinger's opinion upon the construction of wills. 290. Proof of testator's intention is admissible only in cases of latent ambiguity. 291. The subject further illustrated by reference to the cases. 292. Usage admissible to explain, but not to contradict words. 293. The acts of the parties admissible to fix construction. 294. Parol evidence admissible to annex incidents and explain the import of terms. 295. Also to show that the terms used have a local and special meaning. 295a. The true ground of receiving it is to place the court in the position of the parties. 296. Admissible to rebut an equity. Ademption of portion or legacy. 296a. Courts of equity correct mistakes in written contracts. 297. Lord Bacon's definition of the distinction between latent and patent ambiguities. 1 The subject of this chapter is ably discussed in Spence on the Equitable Jurisdiction of Chancery, vol. 1, pp. 553-575. and in 1 Smith's Leading Cases, pp. 410418 [305-310], with Hare & Wallace's notes. § 298. A writing is not ambiguous, unless it remain so after resorting to all admis sible aids to the construction. 298a. The court may enter up correct judgment, notwithstanding improper proof admitted. 299. Sir James Wigram's distinction between inaccuracy and ambiguity of lan guage. 300. Obscurity in language cannot be removed by oral proof. § 275. By written evidence, in this place, is meant not every thing which is in writing, but that only which is of a documentary and more solemn nature, containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. Fiunt enim de his [contractibus] scripturæ, ut, quod actum est, per eas faciliùs probari poterit.1 When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend, in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.2 In other words, as the rule is now more briefly expressed, "parol contemporaneous evidence is inadmissible, to contradict or vary the terms of a valid written instrument.” 8 1 Dig. lib. 20, tit. 1, 1. 4; Id. lib. 22, tit. 4, 1. 4. 2 Stackpole v. Arnold, 11 Mass. 30, 31, per Parker, J.; Preston v. Merceau, 2 W. Bl. 1249; Coker v. Guy, 2 B. & P. 565, 569; Bogert v. Cauman, Anthon's R. 70; Bayard v. Malcolm, 1 Johns. 467, per Kent, C. J.; Rich v. Jackson, 4 Bro. Ch. R. 519, per Ld. Thurlow; Sinclair v. Stevenson, 1 C. & P. 582, per Best, C. J.; McLellan v. The Cumberland Bank, 11 Shepl. 566. The general rule of the Scotch law is to the same effect, namely, that "writing cannot be cut down or taken away, by the testimony of witnesses." Tait on Evid. pp. 326, 327. And this, in other language, is the rule of the Roman Civil Law,-Contra scriptum testimonium, non scriptum testimonium non fertur. Cod. lib. 4, tit. 20, 1. 1. 8 Phil. & Am. on Evid. p. 753; 2 Phil. Evid. 350; 2 Stark. Evid. 544, 548; Ad ams v. Wordley, 1 M. & W. 379, 380, per Parke, B.; Boorman v. Johnston, 12 Wend. 573. [* Thus the entry in a court of record into which a recognizance is returnable, that the principal made default, cannot be contradicted by parol evidence, on scire facias, against the bail. Commonwealth v. Slocum, 14 Gray, 395. Nor can an official entry on a record, void for uncertainty, be explained by extrinsic evi dence. Porter v. Byrne, 10 Ind. 146.] § 276. This rule "was introduced in early times, when the most frequent mode of ascertaining a party to a contract was by his seal affixed to the instrument; and it has been continued in force, since the vast multiplication of written contracts, in consequence of the increased business and commerce of the world. It is not because a seal is put to the contract, that it shall not be explained away, varied, or rendered ineffectual; but because the contract itself is plainly and intelligibly stated, in the language of the parties, and is the best possible evidence of the intent and meaning of those who are bound by the contract, and of those who are to receive the benefit of it." "The rule of excluding oral testimony has heretofore been applied generally, if not universally, to simple contracts in writing, to the same extent and with the same exceptions as to specialties or contracts under seal."1 § 277. It is to be observed, that the rule is directed only against the admission of any other evidence of the language employed by the parties in making the contract, than that which is furnished by the writing itself. The writing, it is true, may be read by the light of surrounding circumstances, in order more perfectly to understand the intent and meaning of the parties; but, as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it, or substituted in its stead. The duty of the court in such cases, is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express; but what is the meaning of words they have used.2 It is merely a duty of interpretation; that is, to find out the true sense of the written words, as the parties used them; and of construction, that is, when the true sense is ascertained, to subject the instrument, in its operation, to the established rules of law. And where the lan 1 Per Parker, J., in Stackpole v. Arnold, 11 Mass. 31. See also Woolam v. Hearn, 7 Ves. 218, per Sir William Grant; Hunt v. Adams, 7 Mass. 522, per Sewall, J. 2 Doe v. Gwillim, 5 B & Ad. 122, 129, per Parke, J.; Doe v. Martin, 4 B. & Ad. 771, 786, per Parke, J.; Beaumont v. Field, 2 Chitty's R. 275, per Abbott, C. J. See infra, § 295. [And where a written instrument is lost, and parol evidence is given of its contents, its construction still remains the duty of the court. Berwick r. Horsfall, 4 Corn. B. Reps. N. s. 450.] 8 The subject of Interpretation and VOL. I Construction is ably treated by Professor Lieber, in his Legal and Political Hermeneutics, ch. 1, § 8, and ch. 8, §§ 2, 3. And see Doct. & St. 39, c. 24. The interpre tation, as well as the construction of a written instrument, is for the court, and not for the jury. But other questions of intent, in fact, are for the jury. The court, however, where the meaning is doubtful, will, in proper cases, receive evidence in aid of its judgment. Story on Agency, § 63, note (1); Paley on Agency, by Lloyd, p. 198, n.; supra, S 49; Hutchinson v. Bowker, 5 M. & W. 585; and where it is doubtful whether a 27 |