of his discussion are familiar to every lawyer.' He rejects Lord Bacon's maxim as his guide, on the ground that "the maxim itself requires much explanation"; though, in conclusion, he endeavors to show, by what amounts to a tour de force, that the maxim, properly understood, is not in conflict with the Seven Propositions. The keynote of Wigram's book is the correct principle-"that the judgment of a court, in expounding a will, should be simply declaratory of what is in the instrument;" but his work is marred by his failure to see clearly that actual intention, outside of the will, may be truly evidential, as forming a basis of inference as to the operative intention expressed in the words; and by the grudging reception he therefore accords to "declarations of intention," in the casee ven of equivocation. Indeed, so fearful is he of the malign influence of actual intention that he seems to hold that even facts and circumstances, if affected with that taint, are not to be received in evidence save in the one case of equivocation, where even express declarations of intention are receivable. He divides extrinsic evidence into such as is "explanatory of the words themselves," and "evidence of intention itself as an independent fact" as if the latter could not be explanatory of the words; and he speaks constantly of "evidence of intention," instead of "declarations, or statements, or expressions of intention,"

an absence of definite intention; and when this is not the case, the mere fact of patency is irrelevant upon the question of the admissibility of extrinsic evidence. It should be added, in justice to Lord Bacon, that the examples he gives of patent ambiguities show that he had in his mind the facts of the Lord Cheyney's case, 5 Co., 68 (decided in 1591), where declarations of intention were inadmissible (there being no equivocation), and where the doubt was not of a character to be removed by evidence of the facts and circumstances. In practice, indeed, a case would rarely occur, such as Doe v. Needs, supra, where a true equivocation is apparent on the face of the writing, and the possibility of such a case may have escaped Bacon's attention in stating the law as to " averment of intention." And even as to the averment of facts, it may be observed that most cases of ambiguity apparent on the face of wills are not of a character to be relieved by such evidence; so that though the facts are admissible, they are not sufficient to solve the difficulty. But on the other hand there are cases of imperfect description, or misdescription, and even some ambiguous expressions which, though apparent on the face of the will, the facts can relieve, and when this is the case such facts are undoubtedly admissible. See Wigram Ext. Evid., Pl. 209; Cole v. Rawlinson, 1 Salk., 234; Abbott v. Middleton, 7 H. L. C., 68; Smith v. Bell, 6 Pet. 68; Colton v. Colton, 127 U. S., 300; Puller v. Puller, 3 Rand., 83; Hatcher v. Hatcher, 80 Va., 169; Miller v. Potterfield, 86 Va., 876.

1 Wigram Ext. Evid., Pl. 12 to 19. The Seven Propositions are quoted in 1 Greenlf. Evid., 287, note 1.

as if some facts even were not explanatory, but indirectly evidence of intention, and therefore not admissible except in the one case of equivocation. But the law is now settled, as we have seen, that it is not necessary (if, indeed, it were practicable) to divide facts into two classes, those which are "evidence of intention," and those which are not; but that all the material facts and circumstances are in all cases admissible, and the rule of exclusion is confined to declarations of intention, and even these become admissible in the case of equivocation. (See Drake v. Drake, 8 H. L. C., 172; Charter v. Charter, L. R., 7 H. L. C., 364.)1

In conclusion, it may be permitted me to add that I believe that the rules of law as to the use of extrinsic evidence in aid of the interpretation of wills are founded on sound and enlightened principles, both as to the object of judicial exposition, and the means by which that object may be attained. The judicial expositor seeks to discover, not what the words signify in the abstract and according to the rules of correct speech, but what they mean in the will as used by the testator. With all their imper-, fections on their head, they may still be pregnant with meaning, if only the interpreter have skill to discover it. And for this purpose he must place himself in the situation of the testator, and read the will in the light reflected from all the facts, not only the objective facts, if I may so call them, but the subjective facts as well; i. e., those disclosing the testator's motives, opinions, and beliefs. The law does not require a perfect written expression of the testator's intention, but only such expression as can be deemed sufficient. It recognizes the truth of the adage humanum est errare; and though, for reasons of policy, it requires that a will shall be in writing, yet it allows a wide margin for mistakes. It does not make the writer, like Frankenstein, the slave of his own imperfect creature. It knows, in the language of Dr. Johnson, quoted by the Supreme Court of the United States in Patch v. White, 117 U. S., 210, that "sudden fits of inadvertence will surprise vigilance; slight avocations will seduce attention, and

1 In support of the observations which I have ventured to make on the justly celebrated treatise of Wigram, the reader is referred to Pl. 10, 107, 187, and 194; but their correctness can best be tested by a careful study of the whole work.

casual eclipses of the mind will darken learning";

nor is

it unfamiliar with that perverse trait by which we mean one thing and say another, for which Richard Grant White has coined the high-sounding name of heterophemy. The judicial expositor, therefore, does not sit aloft on the cold height of an ideal perfection, and survey the written words with a severe and critical eye, careless whether the will fails or not; but after a very human fashion, he seats himself in the arm chair of the testator, puts on his spectacles, scrutinizes the will "by the four corners," reads its words by the light of all the surrounding facts and circumstances, corrects manifest errors, searches diligently for the faintest traces of intention-even receiving, in a proper case, evidence of the testator's extrinsic declarations; and so endeavors to construe the words of the will as the testator used them, bearing ever in mind that great maxim of the law which enjoins kindly, indulgent interpretation, that the will may prevail and not fail— ut res magis valeat quam pereat.

DUTY OF THE LEGAL PROFESSION IN REGARD TO
NEEDED CHANGES IN LEGISLATION.

The student of the history of our profession will be struck through all its periods with this fight against change. The collegiate training of lawyers was bitterly opposed for years; the long, protracted and unaccountable fight made for the preservation of the barbarous jargon, French Law-Latin, is one of the most remarkable and yet most characteristic of the struggles of our profession. Growing into use through the exigencies of the time, it became, in the opinion of the profession, almost a part of the law; abolished in one reign and restored in another, and even to this day phrases and words remaining in use. The fight over special pleading, the different kinds of actions, procedure in chancery and at common law, is still going on. A suitor is still denied justice if he appeals to the chancellor when he should have addressed himself to the judge, and is thrown out of court for no other reason than that he filed a bill instead of a declaration, although justice would be subserved, delay avoided and the general good accomplished by a different procedure.

To quote from the last number of Green Bag:

"The same officer sits as chancellor and common law judge, and he deals out common law or equity according to the side from which he is approached. He therefore resembles the heathen god Janus, of the double face, or Mr. Facing-both-ways in the Pilgrim's Progress. By an appeal to his better self he can mitigate

the rigors of the common law by the application of the milder and more beneficent principles of equity. Like Mr. Orator Puff, he has two tones to his voice'; so, if he finds when approached on his common law face that he is bound to grant the demand of the plaintiff, but feels that it would be unjust and inequitable to

do so, he may allow the defendant to prostrate himself beneath

his equity face and solicit him to restrain himself from pronouncing the dreaded judgment of his common law mouth. It is like praying the Deity to restrain his wrath, but with a more appreciable result. A Vermont lawyer, Hon. Joel C. Barker, of Rutland, thus describes this marvelous procedure:

"In Vermont, where the same man presides over the county court and court of chancery in the same county, we often have the judge saying from his high seat of honor and of justice to a suitor 'The law compels me to decide this case in your favor, and to award you a sum in damages; but such a judgment would be an insult to God's justice; you have taken a wicked and mean advantage of your opponent, and your recovery is a wrong and a sin; but your adversary has no legal defence to your iniquitious persecution of him: therefore, as chancellor, I hereby restrain and enjoin you from proceeding further in your action, and forcing me to do such manifest wrong to your victim.' This description of the versatility of the legal judge of all work reminds one of Steerforth's description of Doctor Commons, in David Copperfield:

"You shall find the judge in the nautical case the advocate in the clergyman's case, or contrariwise. They are like actors; now a man's a judge, and now he is not a judge; now he's one thing, now he's another; now he's something else, change and change about."

The violent, acrimonious and protracted fight over the laws relating to married women is another familiar instance. They could be multiplied almost indefinitely. That they can be so multiplied is not, in my opinion, a credit to our profession. My purpose here, however, is not that of a critic; I am not here as a fault-finder, and I do not propose speaking in that spirit. With all our faults, the profession of the law is, perhaps, next that of the teacher, the highest of all professions. It certainly demands