Page:Harvard Law Review Volume 12.djvu/230

2 10 HAR YARD LA IV RE VIEW. an anomalous right. If the child has a right of action it must arise at the time of the injury, but at that time it is uncertain whether the child will be born alive, so that a right of action is created which is contingent on a subsequent irrelevant fact. Strong reasons of public policy too are against allowing this new right of action, — infinitely difficult questions of fact would come before juries, and the courts would be filled with cases brought in bad faith. The Parol Evidence Rule Applied to Wills. — An interesting case regarding the interpretaijon of a will has recently been before the Supreme Court of Pennsylvania. /// re Hoot's Estate^ 40 Atl. Rep. 818. The will in question gave "unto my nephew, William Root, the sum of $1,000." The testator had a true nephew, William Root. His wife also had a nephew of the same name. To explain this will, evidence was offered in the Orphan's Court of the surrounding circumstances and the declarations of the testator tending to sho»v that the wife's nephew was intended to take the legacy. The Orphan's Court admitted the evidence, and decided in favor of the wife's nephew. The Supreme Court, however, reversed this decision on the ground that when one person exactly meets the description in the will it is error to admit evidence of any kind to show that another person not exactly meeting the description was intended. Half a century ago this decision would have met with general approval ; but since that time there has been a steady growth of opinion that the rule here laid down is too narrow, and that whatever may be the case as regards direct declarations of intention, at least the courts may look fully into all other extrinsic circumstances. An instance of this growth ap- pears in Abbot v. Middktofi, 7 H. L. C 68, where Lord St. Leonards said regarding the construction of a will, "You are, by the settled rule of law, at liberty to place yourself in thp same situation in which the testator himself stood." In a subsequent case, Lord Cairns expressed himself to the same effect. Charter v. Charter, L. R. 7 H. L. 364. Grant v. Grant, L. R. 5 C. P. 727, was a case exactly parallel to the Pennsyl- vania case. Evidence was there received to show that the wife's nephew was meant, and Lord Blackburn distinctly repudiated the doctrine now urged by the Pennsylvania Court. To turn to American authorities, the words of the will considered in Patch v. White, 117 U. S. 210, exactly described an existing lot of land ; yet when it appeared that this lot was not owned by the testator, the court righted the mistake by the aid of parol evidence. In England, then, and in the Supreme Court of the United States the strict rule laid down by the principal case is no longer adhered to. On principle, the Pennsylvania position is hard to support. The aim of the law of construction is to give effect as nearly as possible to the intention of the testator. This aim is measured on one side by a rule of evidence established by time, that the direct declarations of the testator must not be regarded in the search for his meaning. On the other side, it is limited by the Statute of Frauds, which requires that this meaning when found be expressed in writing. Within these bounds no rule is established by precedent which places further restraints upon the inter- preter ; and in reason there seems to be no need for such a rule. Written words are but the symbols of the writer's meaning, and at best imperfect symbols. The law requires not a perfect but only a sufficient expression, and this there may be although the words are not used in their strict