Open main menu

Page:United States Reports, Volume 2.djvu/78

This page needs to be proofread.

ya Casas ruled and adjudged in the g•,9•. eo elucidate any other doubtful-point. Suppofc a man were to ye`;. live many years under a liéiitious name, which happened to be the real name of another perfon in the fame community, could he not take a legacy under the li£titious_ name? Could he not, · likewife, take it, after alfuming his proper name? And if fo, does ‘ notthe claim depend on a fail: delmr: the will, which mul}: be eliablifhed by independent proof P The prefent difpute, in the _ fame manner, refolves itfelf into this quellion, whether evi- dence tnay not be given, in the cafe of two perfons of the fame family, one called lWlliam, and the other called Samuel, that the teliator knew the latter, though he did not know the former ? ` And, confequently, that the legacy given by a miltake of _ ` names to the petfon he did not know, was intended, in fa€t, for the perfon he did know, who in the bequeft is emphatically called his friend? It is admitted, from the authorities cited by the oppolite counfel, that where there is not a perfon ofthe name mentioned in the will, explanatory evidence may be given of the teltator’s intention; and that if Samuelhad not exilled, William might have enjoyed the benefit of die legacy under Samuel': name. But the principle extends further than that admillion; and as between Willxhm`a11d the teltator, an ob- vious milialte ought not to be enforced againlt all the truth and juliice of the cafe. In P. Wm. 14r. both the chriltian • name and {ir-name of the Iegatee were millaken; and there were other perfons mpable of taking the legacy; yet the decree was favorable to the part intended, though not delignated, by the bequell:. All the authorities, indeed, concur in that point, that no injury can arifc from admitting parol proof to afcertain the thing, or perfon, defcribed by the tellator. Rielv.Law if W ill} 16g. 279. 28r. 2 Vern. gg;. 8 Vin. Abr. rgy. Ca. in q. 212. Surrntu Pre/ident. The court entertain no doubt in this cafe; and, therefore, ought not to poltpone a decilion. The bequeil: was made to a perfon who was always called Samuel by the teltator, though, in faét, named William ; and whom the ‘ tellzator had nurtured and educated from his infancy ;when, on the other hand, he did not even know the perfon really called Samuel. The evidence to explain thofe faéts was proper to be laid before the jury; and their verdiét perfeétly accords with thelaw and equity of the cafe. Therefore, Let the Rule be difcharged. Lawmmcl