In State

The exceptions were dismissed. v. Cady, 82 Me. 426, 19 Atl. 908, the defendant moved in arrest of judgment for insufficiency of the indictment. The motion being overruled, the defendant excepted. No copy of the indictment appeared in the bill of exceptions. The court says:

"But the law court has not been furnished with a copy of the indictment, and has no means therefore of judging of its sufficiency."

tion was made or exceptions were reserved. | the plaintiffs, but the duty was upon them to [1-3] In strictness, the doctrine of res ad- present to the law court the entire bill of excepjudicata does not apply to the decision of a justice if they desired its consideration." tions as settled and allowed by the presiding motion, and the court may, on proper showing, allow a motion once denied to be renewed. Belmont v. Erie R. R. Co., 52 Barb. (N. Y.) 637; Barkley v. N. Y. C., etc., R. R. Co., 42 App. Div. 597, 59 N. Y. Supp. 742. And it has been held that a renewal or rehearing of a motion denied by one judge cannot be granted by another. Dollfus v. Frosch, 5 Hill (N. Y.) 493, 40 Am. Dec. 368. A motion, once denied on the merits, cannot, as a general rule, be renewed on the same state of facts without leave of court. Riggs v. Pursell, 74 N. Y. 370; Gall v. Gall, 58 App. Div. 97, 68 N. Y. Supp. 649; Johnson v. Johnson, Walk. Ch. (Mich.) 309. Stacy v. Stephen, 78 Minn. 480, 81 N. W. 391; Jones v. Thorne, 80 N. C. 72; Corwith v. State Bank, 11 Wis. 430, 78 Am. Dec. 719; A. B. Dick Co. v. Wichelman (C. C.) 109 Fed. 81. Here was no express leave of court, and none can be implied or assumed, as the facts alleged and disputed were not considered by the presiding justice.

The court is of opinion that defendant is precluded from making the same motion, and that for this reason the exceptions might be overruled. See Richardson v. Wood, 113 Me. 328, 330, 93 Atl. 836.

No motion was made by the state that the exceptions be dismissed, but as they were not argued by defendant, they were regarded In Varney as waived, and were overruled. V. McCluskey, 114 Me. 205, 206, 207, 95 Atl. 888, an entry in a memorandum book was offered by plaintiff, and, subject to objection and exception, the entry was read, but at the law court the entry did not appear in the printed record, nor was the book produced. Although the parties agreed to characterize it as a recommendation and objection to its absence was apparently waived, the law court refused to consider the exception, and it was overruled.

it has been held that they may do so ex mero motu. So we conclude may the appellate court of its own motion dismiss excep

[4] It may be objected that plaintiff has not moved the dismissal of the exceptions, The bill of exceptions expressly makes the and has therefore waived the diminution of evidence taken out before the presiding justhe record. But we do not think this detice part of the exceptions, together with prives the law court of the power to dismiss the report of the referee in all the cases re- the exceptions of its own motion. Where apferred to him, and the transcript of the evi-pellate courts have the power to issue cerdence shows that the docket entries in all tiorari in case of diminution of the record, eight cases were made part of the case, but neither the reports of the referee nor the docket entries, or copies of them, are a part tions where there is substantial diminution of, or accompany, the printed case. There of the record. Otherwise by agreement of was a diminution of the record as settled by the presiding justice. In Atwood v. N. E. T. counsel or by the oversight of the party & T. Co., 106 Me. 539, 76 Atl. 949, the ex- opposing the exceptions, a case may be preceptions of the plaintiffs as allowed and pre-sented to the appellate court entirely dissimsented to the law court, made the evidence, ilar to that shown by the bill of exceptions including the plans and photographs exhibit- allowed by the justice below. In the present ed, a part of the bill. The evidence, plans, instance the justice presiding "did not pass and photographs were not filed, and were not upon any disputed question or propositions produced at the law court. The defendant of fact raised" by the motion, but ordered moved the dismissal of the exceptions. In the reports of the referee accepted. This the opinion sustaining the motion of defend- must have been done upon either the reports ant it is said: or upon the docket entries, or both. How can the law court, without them, determine whether or not there was error? The exceptions may be dismissed. So ordered.

(78 N. H. 224)

JONES v. BENNETT et al.

"The plaintiffs claim that the remainder of the bill without the evidence, plans, or photographs contains enough to enable the law court to determine whether the ruling was correct or not. Whether the law court can so determine without the evidence, etc., is a question for the justice who made the ruling and settled the bill of exceptions. He, not the law court, is the judge in the first instance of what the bill should contain or omit. If the excepting party is not satisfied (Supreme Court of New Hampshire. Belknap. with the justice's determination of that question, he should petition the law court to establish a proper bill of exceptions. If, instead, he brings 1. EVIDENCE 111 to the law court the bill settled by the justice, he must bring the whole of it as so settled-must comply with all its requirements to be entitled to a hearing. It may be a hardship upon

*

Nov. 3, 1916.)

- HABIT

QUESTION OF

FACT. When a person is in the habit of doing a thing in a particular way, it is permissible to show that fact, provided it is the best evidence

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1039; Dec. Dig. 489(3).]

6. WILLS 489(5)-MISTAKE OF SCRIVENEROMISSION OF NAMES OF BENEFICIARIES STATUTE.

Though testatrix told her scrivener that she wished to give the residue of her estate to her husband's nephews and nieces, but the will, as drawn, directed that it be divided equally among her husband's heirs, he having left a grandson, the nephews and nieces could not take because of the statute of wills (Pub. St. 1901, c. 186, § 2), providing that a will shall be in writing. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1041; Dec. Dig. 489(5).]

In proceedings to construe testatrix's will, leaving the balance of her estate to be divided equally among her late husband's heirs, he hav-struction of the will. Findings were måde, ing left a grandson and nephews and nieces, the and certain claimants under the will exceptcourt properly refused to consider evidence of the ed. Plaintiff advised, and case discharged.

20

The defendants are Hiram's grandson and his nephews and nieces. The nephews and nieces introduced Mrs. Clark's statements to the scrivener and others to show who were to have the property passing by this clause, and the court, Sawyer, J., considered .the evidence on the issue of Mrs. Clark's habit, and found that she was not in the habit of speaking of Hiram's nephews and nieces as his heirs, but refused to consider it on the issue of her intention, and they (the nephews and nieces) excepted.

Owen & Veazey, of Laconia, for plaintiff.

Charles B. Hibbard and Shannon & Tilton,
all of Laconia, for the grandson. Hughes &
Doe, of Dover, and Peters, Cole & Tilton, of
Haverhill, Mass., for the nephews and nieces.

she had but a vague idea of their meaning and used them by mistake.

[2, 3] It will be necessary, therefore, to consider the nephews' and nieces' exception to the court's refusal to consider this evidence on the issue of Mrs. Clark's intention. If it is permissible to show that she omitted the names of the nephews and nieces by mistake, or that she supposed they were Hiram's heirs, it is because that fact is a circumstance surrounding the making of the will which it is proper for the court to consider in ascertaining to whom she intended to give this property; consequently the test to determine whether the court erred in excluding this evidence in so far as it tended to prove that Mrs. Clark intended to give this property to the nephews and nieces is to inquire whether, if that were found to be the fact

from extrinsic evidence, the court could con

sider it in construing the will. It is true, as the nephews and nieces contend, that Mrs. Clark's intention is not to be ascertained by simply giving the words she used their ordinary meaning, regardless of the circumstances under which they were used (Kendall v. Green, 67 N. H. 557, 42 Atl. 178); but it is equally true that her intention must be gathered from the words she used, and not from her declarations made before, at the time, or after the will was made (Greeley v. Society, 77 N. H. 455, 456, 92 Atl. 958); for it is not permissible to ascertain her intention by extrinsic evidence and use it to contradict the words of the will (Hoitt v. Hoitt,

YOUNG, J. [1] When a person is in the habit of doing a thing in a particular way, it is permissible to show that fact, provided it is the best evidence readily obtainable, as tending to prove how he did it on a given occasion; for experience teaches it is more probable than otherwise that a person acted on the occasion in question in the way he was accustomed to act. In other words, habit is an evidentiary fact, and whether it exists is a question of fact to be decided 63 N. H. 475, 500, 3 Atl. 604, 56 Am. Rep. like all such questions by weight of competent evidence. The question therefore, and the only question, raised by the nephews' and nieces' exception to the finding that Mrs. Clark was not in the habit of speaking of them as Hiram's heirs, is whether it conclusively appears that that was her habit, or whether that conclusion is only one of which the evidence is fairly capable. The testimony of the scrivener tends rather to the conclusion that the reason Mrs. Clark used the words in dispute to describe those who were to take the property passing by this clause was because she (the scrivener) thought that Hiram's nephews and nieces were his heirs than to the conclusion that Mrs. Clark was in the habit of speaking of them in that way. In other words, the scrivener's testimony tends to the conclusion that Mrs. Clark omitted the names of the nephews and nieces from this clause by mistake, and has little or no tendency to prove that she was accustomed to speak of them as her husband's heirs. The most that can be said of the testimony of the other witnesses in so far as it is relevant to this issue is that it tended to prove Mrs. Clark sometimes spoke of them as his heirs. If it is assumed that she intended to disinherit her grandson in favor of the nephews and nieces, the probable solution of the problem of why she

530). In other words, construing a will is not ascertaining the testator's intention as an independent fact and reading it into the will, but ascertaining it from the will itself or from the words of the will by reading them in the light of the surrounding circumstances. If, therefore, Mrs. Clark had been accustomed to speak of the nephews and nieces as her husband's heirs, it would be permissible for the court to consider that fact in construing her will; for that would tend to prove what the words meant to her. The fact, however, that she did not know their meaning has no such tendency, but rather that they meant nothing to her; consequently ascertaining to whom she intended to give the property from the statements she made to the scrivener would not be ascertaining what the words meant to her, but ascertaining the names of those to whom she intended to give this property from extrinsic evidence.

[4] If the court's finding that Mrs. Clark was ignorant of the meaning of the word "heirs" is intended as a finding that she omitted the names of the nephews and nieces as the beneficiaries in this clause of the will by mistake, they take nothing by the finding unless the court has power to ascertain from evidence outside of the will whether the names of all the persons the testator intended

found to be the fact, they would still be remediless because of the statute.

The plaintiff is advised that the property passing by the residuary clause goes to Bennett.

Case discharged. All concurred.

supply the names of those it finds were omitted by mistake. The court, however, has no such power; for, while P. S. c. 186, authorizes a person to dispose of his property by will, section 2 provides the only way in which that may be done. 4 Wig. § 2471. All that is intended when it is said the court is powerless to correct a testator's mistakes is that it has no power to read in the names of beneficiaries omitted by mistake. Whether it has power to read out names inserted by mistake is a question not considered and as to which no opinion is intended to be ex-will, upon the question of her intention or pressed.

On Motion for Rehearing.

WALKER, J. [7-9] The contention that it was error for the superior court to refuse to consider evidence of the declarations of the testatrix at the time of her execution of the

understanding in using the words "heirs of my late husband" as descriptive of the legatees, cannot be sustained, unless the court is to assume the function of legislation. That the evidence tends to show that she intended by the above phrase the nephews and nieces of her deceased husband, and that she supposed they were correctly described as his heirs, may be conceded. The fact is, as judicially understood, they were not his heirs. Can the usual meaning or sense of that term as used in the will be contradicted in a proceeding for the construction of the will by her declarations of the sense she attached to it? This is not a question of the relevancy of the evidence or its weight. We are not

[5] Since it has been found that Mrs. Clark was not in the habit of using the words in dispute to describe the nephews and nieces, and since, if it were found from her declarations that they were the ones she had in mind when she used these words, they would take nothing by the finding because of the statute; the only things to be considered in ascertaining who take the property passing by this clause, in addition to the words she used, are the facts that most of the property came to her from her husband, and most of his property came to him from a brother; that she knew he wished his nephews and nieces to have a substantial part of his property; that she disliked her son-in-law's fam- concerned with its logical probative value. ily, and was very friendly with the nephews and nieces; and that she gave her grandson the income of $3,000 and so much of the principal as is necessary for his support in the first clause of the will, and in the second gave $100 to each of the nephews and nieces. All these facts are relevant to the is-C. 186, § 2), and cannot be contradicted, upon sue of her intention, but they have little tend- the issue of the testator's intention, by extrinsic evidence. In this respect the con

4 Wig. Ev. § 2400. If it proves that she made a mistake in her use of terms to express the objects of her bounty, the court is not authorized to rectify her mistake by disre vides that a will shall be in writing (P. S. garding a rule of substantive law which pro

ency to prove that her grandson was not to have the residue of her property if he out-struction of a will does not materially differ

lived her. The fact she created a trust for his benefit has little, if any, more tendency to prove that she did not intend him to have the residue of her property than the fact she gave each of the nephews and nieces $100 has to prove that she did not intend for them to have it if they chanced to be her husband's heirs when the will became operative. There are twelve of the nephews and nieces, and there is nothing to show that Mrs. Clark did not think $1,200 was a substantial part of her husband's property.

[6] While the fact Mrs. Clark disliked her son-in-law's family tends to explain why she gave the residue of her property to her husband's as distinguished from her grandson's heirs, it has little or no tendency to prove that she intended to benefit the nephews and nieces at the grandson's expense. In fact, the only evidence worthy of serious consideration, or the only evidence which has any substantial tendency to prove that Mrs. Clark did not intend her grandson to have this property if he outlived her, is the scrivener's testimony that Mrs. Clark told her she wished to give this property to her hus

from the construction of written contracts or other documents. The object is to ascertain the sense in which the written language was used by the parties in a contract or by the testator in a will. The question is "not what the parties intended to do, but what did they do; what intention did they express in the deed?" Pillsbury v. Elliott, 56 N. H. 422, 425. "The construction of the will is the ascertainment of the testator's expressed intention, what he meant by what he said, which is to be determined by the court as a question of fact, and not by the application of arbitrary rules of law." Stratton v. Stratton, 68 N. H. 582, 585, 44 Atl. 699, 700. A further citation of authorities in support of this proposition in this jurisdiction would be superfluous.

[10] When the expressed intention of the testator plainly appears from the language of the will, it cannot ordinarily be contradicted by proof that his purpose was, in fact, different from what his written language, as understood by the court, clearly imports; and this is so, not because the proof is logically irrelevant in consequence of some formal statement of the inadmissibility of the

Atl. 1024.

The evidence is admitted not to show an intention independent of and in conflict with the expressed intention.

"In no case is such evidence allowed or considered to change the expressed intent. The proofs afforded by such evidence are employed what in fact was the expressed intent." Young's merely as an aid to the court in determining Estate, 123 Cal. 337, 342, 55 Pac. 1011, 1012.

cause it is illegitimate to contradict the writ-ize the use as evidence of matter not proper for ten document by the use of independent facts. consideration in the interpretation of a writing. This principle is often expressed in language a written instrument cannot be contradicted or It does not abolish the well-established rule that more applicable to rules of evidence than to varied by parol extraneous evidence." Electric substantive law, as when it is said that parol Light Co. v. Jones, 75 N. H. 172, 174, 71 Atl. evidence is not admissible at law to vary 871, 872: Weed v. Woods, 71 N. H. 581, 53 or contradict a written document. But the meaning obviously is that it is inadmissible because the fact which it tends to prove cannot be used for any useful purpose. The evidence may be admissible to prove the fact, but the fact is immaterial. Much confusion in discussing the cases upon this subject is avoided by bearing this distinction in mind. [11] But it is urged that the purpose of the testator as it appears from the language of the will is frequently changed, limited, and enlarged, or materially modified, by proof of facts not specifically referred to in the will, and in some cases by the oral declarations of the testator; and the conclusion is sought to be justified that the declarations of the testatrix in this case should have been received to show that by the word "heirs" she meant nephews and nieces. But the principle which prevents the use of independent facts dehors the will to defeat the sense inherent in the language used by the testator in his will does not preclude all reference to the surrounding facts and circumstances in view of which the will was made. The provisions of the will must be applied to extraneous physical facts which must be identified by proof. The legatees and devisees as well as the subject-matter of the gifts must be ascertained in order to give effect to the will. Such evidence is always received, not to overthrow the provisions of the will and substitute others in their stead, but to sus-name, it was found from extraneous evidence tain those provisions by applying them to the external persons and objects designated in the will often with great brevity. In Ladd v. Ladd, 74 N. H. 380, 382, 68 Atl. 462, 463, it is said:

will.

"It is the general rule that declarations of intention are not admissible to explain what a testatrix meant by the terms employed in her * But the rule does not preclude a consideration of the attending circumstances as aids in applying the will, for the purpose of ascertaining what was meant by the terms employed."

That is, the rule is not so self-contradictory as to authorize a modification of a will by parol and at the same time to declare that it could not be thus modified or changed. This process of identification merely renders the sense of the testamentary language more complete and practical and is necessary to give effect to the will.

[12] It often happens, however, that the expressed intention, when applied to external objects, becomes doubtful or ambiguous; the sense of the language as used in the writing is not clear in the absence of extraneous proof of the sense attached to it by the parties seeking to express their purposes thereby. There exists what is usually denominated a latent ambiguity. That the parties intended to express some purpose is not open to doubt, but in such cases it cannot be practically applied without the aid of extraneous evidence. Hence such evidence is admissible as a matter of necessity to prevent a finding of indefiniteness and a consequent failure to give any effect to the language-a result which would defeat the parties' undoubted purpose in executing the document.

In Trustees v. Peaslee, 15 N. H. 317, a testator made a bequest to the "Franklin Seminary of Literature and Science, Newmarket, N. H." As there was no institution of that

that he intended "the trustees of the South Newmarket Methodist Seminary." His description of the legatee when applied to external objects was inadequate and meaningless. The language, literally understood, did not express his intention; but, aided by other evidence, the court could ascertain what his purpose was when he used that language, and hence could give effect to his intention thus expressed. The evidence did not violate the rule against contradicting or modifying the plain and unambiguous language of the will; for it was not plain or unambiguous as disclosed by the circumstances. To the same effect are Smith v. Kimball, 62 N. H. 606; Tilton v. Society, 60 N. H. 377, 383, 49 Am. Rep. 321. In the case last cited it is said:

"A person known to a testator as A. B., and to all others as C. D., may take a legacy given to A. B."

"In the simplest case that can be put, namely, that of an instrument appearing on the face of But that is not equivalent to saying that it to be perfectly intelligible, inquiry must be C. D. might take a legacy given to A. B. upon made for a subject-matter to satisfy the de- the testator's mere declaration that he inscription." 1 Gr. Ev. § 287. tended to give it to C. D. The decision in that case was based upon the fact of a “latent ambiguity."

"The often announced and applied principle that the construction of a written document is the ascertainment of the intention of the parties, determined like a question of fact by the natural weight of competent evidence, and not by the

But when no ambiguity exists as to