LATENT AMBIGUITY. One which does not appear on the face of the instrument. A latent ambiguity is where words apply equally to two different things or subject matters; 15 M. & W. 561; but where the parties may have intended either of the two things in dispute, the term does not apply ; Webster v. Paul, 10 Ohio St. 534.
It is settled both in England and in this country that extrinsic evidence is admis sible to explain a latent ambiguity, but there has been some difficulty in defining precisely when and under what circum stances such evidence may be introduced to show the intention. Two rules are laid down in 2 Eng. Rul. Cas. 718, 726, as illus trated by two leading English cases. The first rule is : "Where a determinate in tention appears to be eipressed by the writ ten instrument, extrinsic evidence is ad missible to show that the description of an object contained in the instrument is ap plicable with legal certainty to either of two objects ; and, a latent ambiguity hav ing been thus disclosed, evidence of the sur rounding circumstances is admissible to show which of the objects was meant by the de scription ; and if, on this evidence, one of the objects is indicated with sufficient cer tainty, direct evidence of declarations of in tention is not admissible." 5 M. & W. 363. In that case the language of the court was : "If, therefore, by looking at the surrounding facts to be found by the jury, the court can clearly see, with the knowledge which arises from those facts alone, that the tes tator meant either the lessor of the plaintiff or the defendant, it may so decide, and di rect the jury accordingly ; but we think that, for this purpose, they cannot receive declarations of the testator of what he in tended to do in making his will." A good illustration of the uncertainty as to the per son was, "where a testatrix gave a share of her residue to her `cousin, Harriet Cloak,' and the testatrix had no cousin of that name, but had a married cousin, Harriet Crane, whose maiden name was Cloak, and a cousin T. Cloak, whose wife's name was Harriet ; evidence was admitted to show the testa trix's knowledge of an intimacy with the members of the Cloak family. In the event `cousin' was read in the secondary sense of `wife of a cousin,' and the claim of Harriet, the wife of T. Cloak, allowed." 34 Ch. D. 255 ; 56 L. J. Ch. 171. Cited in the American note to the above case as "a good type of the American doctrine," was a devise to "the four boys," where the testator had seven sons, of whom three were shown to be min,ors living at home ; Bradley v. Rees, 113 Ill. 327, 55 Am. Rep. 422. And in the case of Hardy v. Warren reported in Browne,
Parol Evidence 461, there was a bequest by a woman to her "husband" when she had obtained a void divorce and was living with another man as his wife. These were Held to be cases of latent ambiguity to explain which extrinsic evidence was admissible to determine the persons who were to take.
The other rule laid down by the work referred to is : "Assuming that the intention appears on the face of the instrument to be determinate, if, after exhausting such evi dence of the surrounding circumstances as is necessary to place the court at the point of view of the maker of the instrument, there is still an ambiguity as to which of two objects is meant,—the description being sufficient to point with legal certainty to ei ther if there were no other,—the intention as between those objects may be proved by di rect evidence outside the instrument." 2 M. & W. 129. It is said that courts of law are very jealous of the admission of extrinsic evidence to explain the Intention of the tes tator, and that it should be permitted only where an ambiguity is introduced by extrin sic circumstances; 4 Dow 65 ; in this case Illustrations are given of ambiguity both as to person and subject-matter, as a devise of an estate caller Blackacre when the testator had two estates so called; or if a devise be given to a son, naming him, and there are, two sons by that name ; or to a nephew "William" where the testator had no nephew of that name. The rule as laid down by the American cases has been stated to be that where the terms describing the object of the testator's bounty apply indifferently to more than one person or thing, evidence may be introduced of any material fact relating to the property claimed, and the circumstances and affairs of the testator, his family, and of the claimant, "and the testator's declarations made before, at, or after the making of the will, are admissible in this view, but no evidence of mere mis take on the part of the testator or the draftsman is admissible." Cleverly v. Clever ly, 124 Mass. 314; Appeal of Wagner, 43 Pa. 102; Morgan v.• Burrows, 45 Wis. 211, 30 Am. Rep. 717; Doe v. Roe, 1 Wend. (N. Y.) 549.
A bequest "to be equally divided between the board of foreign and the board of home missions," may he shown by parol to have been intended for the Presbyterian boards thus named, there being similar boards con trolled by other religious denominations; Gilmer v. Stone, 120 U. S. 586, 7 Sup. Gt. 689, 30 L. Ed. 734. See also, as to the admissibil ity of parol evidence to show intention, LEGACY.
See AMBIGUITY; PATENT AMBIGUITY.