CONSIDERATIONS PRELIMINARY TO THE PRACTICE OF THE ART OF INTERPRETING WRITINGS-MORE ESPECIALLY WILLS

ALBERT, M. KALES

of the Chicago Bar

In performing the process of interpreting writings, three steps preliminary to the practice of the art of interpretation must be taken: (1) the subject matter to be interpreted must be precisely defined; (2) the standard of interpretation in the given case must be determined; (3) the sources from which the tenor of that standard is to be derived must be ascertained.

SUBJECT MATTER OF INTERPRETATION

Inducement distinguished from legal act-The writing constituting the legal act is the only subject matter of interpretation: A testator or settlor in the effort to express himself has two mental reactions. He first desires to accomplish a certain object and to do so may have the will or purpose to use certain words according to a given standard, such as their ordinary and general usage. All this is preliminary, or by way of inducement, to his legal act of using certain words according to some standard. Then comes the decisive step of completing or making final a legal act in writing in which certain words are used with reference to a standard of meaning.

If the words of the legal act, according to the standard used, express perfectly the purpose or object of the inducement, we have no occasion to consider whether the words used or the inducement is the subject matter of interpretation or to distinguish between them for any purpose of interpretation. If, however, words are missing from the legal act or if the wrong word is used so that what was willed to be expressed is not, in fact, expressed, we are at once required to choose between two possible subjects matter of interpretation-the object and purpose of the inducement or the words used.

Conceivably, of course, a system of law might exist where the courts endeavored to give effect to the objects and purposes of the inducement which were sought to be expressed in the formal act reduced to writing. In such a system, the writing might be used merely as evidence-no doubt often prima facie correct-of the objects and purposes of the inducement to the act. In such a system the subject matter to be interpreted would be the objects and purposes of the inducement to the writing-the "will" or "desire" of the actor. Whether for good or ill the common law did not take this course.

It

has unequivocally made the writing the legal act which is enforced, and in consequence it is the writing alone which constitutes the subject matter to be interpreted. That which is unequivocally withdrawn as a subject matter of interpretation is the inducement. This is uncompromisingly fundamental.

It follows that nothing can be inserted in the writing which is not there. No word not in the writing can be substituted for one that is there. These rules apply with special force where the legal act is required by law to be in writing. They apply, however, as well where the legal act is, in fact, in writing, though not required to be. This is the result of the rule of law as to writings that where a legal act is expressed in writing (though not required to be) it may, and in most cases must, by a necessary inference that the party so wills, be taken as the sole memorial of the act.3

With the rise and development of equity and its jurisdiction to remedy mistakes the court of chancery might conceivably have provided a remedy to rectify the mistake of a testator or settlor in a unilateral instrument of devise or gift, due to the omission of a word or phrase or the insertion of the wrong word. This, however, it has refused to do.*

It may, therefore, be stated generally that (apart from exceptional cases, if any, where a remedy is given to reform a unilateral instrument because of mistake and by this process to give effect to the objects and purposes of the inducement) the only subject matter of interpretation is the legal act of the party or parties contained in the words of the writing as distinguished from the inducement to the legal act. It makes no difference whether the legal act is required by law to be in writing or not, or whether the question arises at law or in equity. To this proposition, there is general agreement, though it is stated in a variety of ways. Wigram distinguished, "What the testator meant" from "What is the meaning of his words." "Intent" has been distinguished from "meaning." Mr. Wigmore distinguishes "will" from "sense." All alike are merely attempting to find suitable expressions for distinguishing the inducement to the legal act from

14 Wigmore, Evidence, sec. 2459; Thayer, Preliminary Treatise on Evidence, 411-412; Bond v. Moore (1908) 236 Ill. 576, 86 N. E. 386.

2 Kurtz v. Hibner (1870) 55 Ill. 514.

3

4 Wigmore, Evidence, secs. 2401, 2425 et seq.

Newburgh v. Newburgh (1820, Eng. V.-C.) 5 Madd. 364; Miller v. Travers (1833, Eng. C. P.) 8 Bing. 244.

'Wigram, Extrinsic Evidence in Aid of the Interpretation of Wills, Introductory par. 9.

Parke, J., in Doe v. Gwillim (1833, K. B.) 5 B. & Ad. 129; Denman, C. J. in Rickman v. Carstairs (1833, K. B.) 5 B. & Ad. 663; Lord Wensleydale in Grey v. Pearson (1857) 6 H. L. C. 106.

7

'4 Wigmore, Evidence, sec. 2459.

the legal act itself for the purpose of emphasizing the fundamental rule that the latter only is the proper subject matter of interpretation.

STANDARDS OF INTERPRETATION

1. Wigmore's three standards applicable to unilateral acts: So far as unilateral acts-such as wills or settlements by way of gift inter vivos-are concerned, Mr. Wigmore sets out three possible standards of interpretation: Ist. "The standard of the normal users of the language of the forum, the community at large, represented by the ordinary meaning of words"; 2d. "The standard of a special class of persons within the community"; 3d. "The standard of an individual actor who may use words in a sense wholly peculiar to himself.”

2. Mr. Justice Holmes' single standard of interpretation: Mr. Justice Holmes seems to be of opinion that one standard only is used— that of a normal speaker of English, using them [the words in question] in the circumstances in which they were used." Justice Holmes does not quite make it clear whether he is merely asserting a fact or a rule of law. Does he say that all the so-called possible standards really reduce themselves to one? Or does he say that the law allows only the one? Perhaps he means that the law allows only the one and that the different standards so far as they appear to be available are really reducible to the one ?10 Mr. Wigmore, on the other hand, asserts: "All the standards are provisional only, and therefore each may be in turn resorted to for help";" and "a unilateral act may be interpreted by the individual standard of the actor";12 the point being to find out which standard is used.

Suppose, for instance, the testator wrote his will in a cipher which made sense as the words stood according to common usage, could it be shown that he had used a cipher or special individual standard of interpretation so that his words would, for the purpose of determining their legal consequences, bear a different meaning? Judge Holmes

4 Wigmore, Evidence, secs. 2458, 2461.

'The Theory of Legal Interpretation (1899) 12 HARV. L. REV., 417.

10

That would explain the following passage in The Theory of Legal Interpretation (1899) 12 HARV. L. Rev., 417, 420: “I do not suppose that you could prove, for purposes of construction as distinguished from evidence, an oral declaration or even an agreement that words in a dispositive instrument making sense as they stand should have a different meaning from the common one; for instance, that the parties to a contract orally agreed that when they wrote five hundred feet it should mean one hundred inches, or that Bunker Hill Monument should signify Old South Church. On the other hand, when you have the security of a local or class custom or habit of speech, it may be presumed that the writer conforms to the usage of his place or class when that is what a normal person in his situation would do."

14

indicates that he would answer this in the negative.13 Would Mr. Wigmore answer in the affirmative, or would he avoid making a decision in the case put decisive of his theory by advocating a special rule that, on grounds of policy, the individual standard differing from that of common usage would not be permitted in the special case?

3. The "will" or "intention" of the inducement as a standard of interpretation: There is still another possible standard of interpretation-the inducement of the testator to his act,-what he intended to accomplish by his legal act. Why should not his words be interpreted in the light of such "intention" as a standard? It would seem that Hawkins may have contended for some such view,15 and that perhaps Thayer followed him in it.16 Certainly Mr. Phipson" more recently so interpreted Hawkins' and Thayer's views and appears to have agreed with them and to have thought that some authorities went so far. It is believed that no authority has ever consciously adopted such a view. To do so would be in effect to make the inducement the subject matter of interpretation in the guise of considering it as an appropriate standard for determining what the words used mean. There is little practical difference between taking the words used as the subject of interpretation while at the same time using the inducement to them as a standard, and taking the inducement as the subject matter of interpretation and then considering whether the words. used express the meaning which is found in the interpretation of the inducement. If the inducement is to be kicked out of the front door as the subject matter of interpretation, it should not be taken in at the back as the standard of interpretation.

I.

SOURCES FOR ASCERTAINING THE TENOR OF THE STANDARD OF

INTERPRETATION

1. The instrument itself: The instrument itself not infrequently on its face indicates what standard of interpretation is to be used. It may disclose on its face that it was written in cipher. Most frequently, of course, the instrument shows that the words employed were used in their usual and ordinary meaning. Indeed, it may be laid down that you are prima facie to take the popular or common usage standard. A mistake may have been made. The testator may have inadvertently used the wrong word, but the face of the instrument may show that he was not consciously putting any unusual meaning upon the language

13 See note 10, supra.

14 See 4 Wigmore, Evidence, sec. 2462, p. 3481.

15 Hawkins, Principles of Legal Interpretation, 2 Jurid. Soc. Papers 298, reprinted in Thayer, Preliminary Treatise on Evidence, App. C.

16

Thayer, Preliminary Treatise on Evidence, 412, 480.

"Extrinsic Evidence in Aid of Interpretation (1904) 20 L. QUART. REV. 245,

253.

used. It may show that he was using the word which he did use by mistake according to the standard of the normal user of English. For instance, if he devises "section thirty-one," there may be evidence showing that his object was to devise "section thirty-two" and that he made a mistake in using "thirty-one," but the evidence may still be conclusive that the testator when he used "thirty-one," was not making use of a code in which "thirty-one" meant "thirty-two," but that he was using "thirty-one" in its usual sense. The interpretation of what he said is, therefore, plain, according to his words and the standard which he employed. If there is any relief, it is to correct a mistake and not to effect a different interpretation of the instrument.1s 2. Extrinsic evidence-Introductory: All evidence which is relevant to complete or ascertain the tenor of the standard of interpretation to be applied and which is not excluded by any special rules of exclusion, is admissible and must be considered.

(1) According to Mr. Justice Holmes1 the standard is that of "a normal speaker of English" using words in the "circumstances in which they were used." If, however, the "circumstances" are part of the test they must be carefully defined. Apparently Judge Holmes means by "circumstances" those which the courts, proceeding on an entirely different theory,—namely that the individual standard of the writer may be used,-have been accustomed to admit for consideration.

(2) According to Mr. Wigmore (following, it is believed, the usual view of the courts), the individual standard of a testator or settlor may be used. Hence extrinsic evidence of that standard may be considered if it is not excluded by some rule of evidence. Always, however, the ultimate fact to be proved is whether the testator or settlor had an individual standard and if so, what it is. Never is the interpreter permitted to use the extrinsic evidence to prove the object and purposes of the inducement as a standard of interpretation.

(a) In some cases, extrinsic evidence tends to prove an individual standard and does not, at the same time, tend to prove the objects and purposes of the inducement. In such cases the use of the extrinsic evidence does not run the danger of introducing the immaterial and improper issue of what are the objects and purposes of the inducement. Extrinsic evidence of this sort is, therefore, admitted. Thus, evidence that the testator habitually called a devisee by a particular name would tend to prove the use of an individual standard in the use of that name by the testator, and so with regard to habits of speech generally. If a will were on its face in cipher, the testator's key to the cipher would be relevant to show the individual standard in the use of the words and the inducement would be untouched by the evidence.

Kurtz v. Hibner (1870) 55 Ill. 514; see post, 46.

"The Theory of Legal Interpretation (1899) 12 Harv. L. Rev. 417.