13 Pick. 623; Brewster v. McCall, 15 Conn. 274, 296. - So where the question is one purely of intention, the belief of the author of an instrument, as to facts necessarily involved in it, may have an important bearing upon its construction. A testator devised his farm in A., in the possession of T. H., to T. R. He had two farms in A., both of which were in the possession of T. H., but at different rents. On a question being raised which of these two farms the testator intended to give to T. R., held, that the devise must be taken to have been made to T. R. for his personal advantage and not upon trust; and if therefore it could be ascertained that one of the farms was subject to a trust, or that the testator supposed it to be so, it must then be inferred that such farm was not the one intended to be devised, but that the other was the one referred to by the testator. Lord St. Leonards said: "The only question which is absolutely necessary to be decided is this, not whether the testator really held those estates, or one of them, on any valid trusts, but rather what he considered and understood to be his interest, that is, whether he supposed that he held them, or one of them, on any trust, or treated, or intended to treat, or to have them or one of them treated as if so held in trust. If he supposed that he held one of them in trust, or treated it as if so held and intended that it should be conthe intention and meaning of the parties certain, it may still be an intention which the words cannot be made to express by any fair rendering. In this case also the contract is null, for it is the words and not the intention without the words that must prevail. But if, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract, in this sense or with this interpretation, will be enforced, as the contract which the parties have made.

The distinction and the rules of Lord Bacon are therefore less regarded of late, than they were formerly. (i) They are intended to enable the court to distinguish between cases of curable and those of incurable uncertainty; to carry the aid of * evi dence as far as it can go without making for the parties what they did not make for themselves, and to stop there. And it is found that it is sometimes of doubtful utility to refer to these rules in the endeavor to ascertain the meaning of a contract, rather than to the simpler rule, that evidence may explain but cannot contradict written language. This last rule limits all explanation to cases of uncertainty, because where the meaning is plain and unquestionable, another meaning is not that which the parties have agreed to express. Thus, if a blank be left in an instrument, or a word or phrase of importance omitted by mistake, the omission may be supplied, if the instrument contains the means of supplying it with certainty, otherwise not, because the parties in such a case have not made the instrument; and the law would make it, and not the parties, if it undertook to supply by presumption an omitted word necessary to its legal existence. And if it permitted this to be supplied by parol testimony, it would be this testimony, and not a written instrument, which proved the property or determined the rights and obligation of the parties. (j) But this rule permits all fair and reasonable explanation of actual uncertainty. Thus, if a guaranty be sidered and treated as so held, and if it does not appear that he held, or supposed that he held, the other of them on any trust, it seems to me that the one which he supposed to be held on any trust, or treated as if so held, cannot be regarded as intended to be the subject of the devise to Mr. Robinson, and consequently the other estate may be deemed to be the one referred to in that devise." Blundell v. Gladstone, 8 McN. & G. 692, 12 Eng.

L. & Eq. 52. See also Quincey v. Quincey, 11 Jurist, 111; Connolly v. Pardon, 1 Paige, 291; Baker v. Baker, 2 Yea. 107.

(i) See ante, p. * 557, note (e).

(j) Miller v. Travers, 8 Bing. 244; Saunderson v. Piper, 5 Bing. N. C. 425; Baylis v. Attorney-General, 2 Atk. 289; Castledon v. Turner, 8 Atk. 257; Hunt v. Hort, 3 Bro. C. C. 811.

It is not easy to lay down rules which will assist in determining these difficult questions, and not be themselves open to much question. But we should express our own views on this subject by the following propositions.

If an instrument is intelligible and certain when its words are taken in their common or natural sense, all its words shall be so taken, unless something in the instrument itself gives to them, distinctly, a peculiar meaning, and with this meaning the instrument is intelligible and certain; and in that case this peculiar meaning shall be taken as the meaning of the parties.

If the meaning of the instrument, by itself, is intelligible and certain, extrinsic evidence is admissible to identify its subjects or its objects, or to explain its recitals or its promises, so far, and only so far, as this can be done without any contradiction of, or any departure from, the meaning which is given by a fair and rational interpretation of the words actually used.

If the meaning of the instrument, by itself, is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony, (l) and this intention will be taken as

(k) Goldshede v. Swan, I Exch. 154. In this case, Pigott, of counsel for the defendant, insisted upon the rule that parol evidence is not admissible to vary the terms of a written instrument But Parke, B., interrupting him, said: "You cannot vary the terms of a written instrument by parol evidence; that is a regular rule; but if you can construe an instrument by parol evidence, where that instrument is ambiguous, in such a manner as not to contradict it, you are at liberty to do so." And the other judges use similar language. See also Butcher v. Steuart, 11 M. & W. 867, where, "in consideration of your having released," was held to have a prospective and conditional meaning, by the help of extrinsic evidence. And see Colbourn v. Dawson, 10 C B. 766, 4 Eng. L. & Eq. 378; Haigh v. Brooks, 10 A. & E. 309. In Noonan v. Lee, 2 Black, 490, the rule is stated, that parol evidence not inconsistent with a written instrument, is admissible to apply such instrument to its subject of North S. and South S, it being clear he means to devise one only, whereat 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 testators 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." See also Shore v. Wilson, 9 Clark & F. 355; s. c. nom. Attorney-General v. Shore, 11 Sim. 592; and the late case of Attorney-General v. Clapham, 4 De G. M. & G. 601, 31 Eng. L. & Eq. 142, where this whole matter is very fully discussed. For the present state of the law upon the various points discussed in this last section, the profession are very greatly indebted to the admirable little treatise by Sir James Wigram on the Interpretation of Wills.