Eastwood, Jayne and Clapp. The opinion of the court was delivered by Clapp, S.j.a.d.
By this action, the executor under the will of Angelica Cella laid before the court for construction and instructions, the residuary paragraph of her will, reading thus:
"I give, devise and bequeath all of the rest, residue and remainder of my estate, whether real, personal or mixed, wheresoever situate, whereof I may die seized or possessed to such Catholic Home for the Aged in the Town of Uldine in Finili, Italy, as selected by the Pope, to have and to hold the same to its own use forever."
The parties stipulate that testatrix meant thereby to make reference to the Town of Udine in Friuli, Italy. In that town there is a Catholic home for old and invalided priests, and the Pope selected it. The selection was sustained by the trial court, and the heirs and next of kin appeal.
We have here a single constructional question. What was it testatrix meant by the words "such Catholic Home for the Aged"? Appellants take the position that since "aged" signifies "aged people," testatrix, therefore, meant to confine the gift to that kind of Catholic home in Udine which is "dedicated to the care of old persons of all walks of life"; this, so appellants say, was the class of homes from which the selection was to be made. There is no such home in that town, indeed no Catholic home for the aged of any sort other than the home for the priests above spoken of. In pursuance of their argument, appellants are obliged to say that the Pope's power of appointment was so circumscribed he could not have selected, let us say, a Catholic home for aged farmers, had there been such a home in Udine. However, we think the language of the will, taking it in its natural import, does not admit of the construction contended for. There are no words of restriction in the clause, and it seems to us that by the very force of its terms, the will has reference to any Catholic home for the aged, comprehending therefore not only a home for aged men and women of every sort, but as well a home for aged women, a home for aged mechanics and a home for aged priests.
Appellants seek to support their position by proof of what testatrix had to say to the scrivener when she gave him instructions for the will. According to that proof, she wanted her residuary estate to go "to a Catholic home for the old people in her old home village or town" -- or, as stated at another point, to limit the gift to the old people " from her home village Pozzuolo and Udine." Further, so these instructions went, she certainly -- "oh definitely" -- desired to benefit not "any specific group of aged persons such as old doctors or priests," but "old people * * * without limitation."
Counsel for the Pope and the home for the priests say that this testimony is inadmissible.
The principles involved here were comprehensively laid out in the recent opinion of In re Armour's Estate , 11 N.J. 257 (1953). The law -- both the statute of wills (N.J.S. 3 A:3-2) and the parol evidence rule -- forbids any proof of extrinsic utterances of a testator stating what he intends, or had intended, to provide by his will. In re Armour, supra , 9 Wigmore on Evidence (3 rd ed.), § 2471; Thayer, Preliminary Treatise on Evidence , 396, 444, 482 (1898) -- an "epoch-making" work (Hughes v. Atlantic City & S.R.R. Co. , 85 N.J.L. 212, 216 (E. & A. 1914)). "Direct statements of intention," Thayer (see supra, e.g. , 440) called them for short. Statements of the testator, not of the forbidden sort, are sometimes designated as "oblique" (Warren, Interpretation of Wills , 49 Harv. L. Rev. 689, 708 (1936)); it may be clarifying to add, by way of example, that they include declarations showing an habitual usage, in a nontestamentary connection, of words found in the will. Wigmore, supra , § 2467, 2471 (first paragraph).
To this general rule holding direct statements of intention inadmissible, there is at least one recognized exception, namely, "where there are two or more persons or things, each answering exactly to the person or thing described in the will." Griscom v. Evens , 40 N.J.L. 402, 407 (Sup. Ct. 1878), affirmed 42 N.J.L. 579 (E. & A. 1880); see In re Armour's Estate , 11 N.J. 257, 280 (1953), supra (the first class of latent ambiguities). Cairns, as Lord Chancellor, stated this (as did Thayer, supra, p. 482) to be the only exception, namely (as Cairns phrased it), where the description is "equally applicable in all its parts" to more than one person or thing. Charter v. Charter, L.R. 7 E. & I. App. 364, 377 (House of Lords 1874). We are not called upon here to consider the validity of the distinction often taken between a patent and latent ambiguity (Thayer, supra, p. 424; Wigmore, supra , § 2472-3), first stated in Bacon's Maxim XXV (numbered XXIII in some editions) which, however, was designed as a rule, not of evidence, but of
pleading (Thayer, supra, p. 425, 472); nor need we pass upon the effect of a blank space in a will or upon cases of a quite similar sort (Wigmore, supra , § 2473; see Clayton v. Lord Nugent , 13 M. & W. 200, 153 ...