case Ulrich versus Litchfield July m p give her real and personal estate to  the plaintiff equal between they and on the death of one of they the whole  estate to James Ulrich in tail and for want of such issue to Richard Ulrich in  fee with a few pecuniary legacy and charge her real estate with the payment if  the personal estate shall not be sufficient and by her will declare she give  all the rest and residue of her personal estate to her uncle Leonard collards  three daughter the counsel for the residuary legatee offer to read the parole  evidence of the attorney who draw the will that he have express direction to  give the personal estate to the three daughter of Leonard collard Lord  Hardwicke say this be not a case where parole evidence can be read though  there be some thing here which may make a judge wish to admit it parole  evidence can never be admit to contradict the will brown v Selwin can tempt  Talb chamberlain v chamberlain Freem Lowfield v Stoneham stram Hampshire v  pierce Ves Maybank v brook bro Charles Rep a question arise in this cause upon  the will of mary Paravacini she bequeathe her real and personal estate to the  plaintiff Elizabeth travers and James Ulrich equal between they for life and  upon the death of Elizabeth travers she give the whole estate to James Ulrich  in tail general and for want of such issue to Richard Ulrich in fee with a few  pecuniary legacy and charge her real estate with payment of these legacy if  her personal estate shall not be sufficient and by her will declare she give  all the rest and residue of her personal estate to her uncle Leonard collards  three daughter and particular give to mrs Susanna Litchfield pound and make  her executrix Mr Wilbraham for the residuary legatee insist that rest and  residue of her personal estate must mean the residue after the particular  legacy be pay off and can not refer to the beginning of the will because there  a fee be devise and consequent the testatrix have dispose of the whole that  parole evidence in this case may be admit of the attorney who draw this will  that he have express direction to give the personal estate to the three  daughter of Leonard collard that to be sure thing which be quite contrary to  the will shall not be prove by parole atkins evidence but that it may be allow  to explain word in a will especial in this case where it appear to be mere a  blunder in the drawer he cite the case of Pendleton v grant Eq Cas Abr and  Hodgson v Hodgson vern in the present case he say it do not entrench upon any  of the rule with regard to parole evidence but only clear up who be intend to  have the personal estate where the whole be devise to two different person and  that it seem clear to be a blunder in the drawer of the will because the  devise in the first part of it be proper only in the dispose of real estate  Lord chancellor where there be a devise of a estate to one person at the  beginning of the will and a devise of the same estate to another at the end of  it there have be determination that they shall take as jointtenants bennet  case cro Elizabeth coke v bullock cro James leo Wallop v Derby Yel har   Litt  b n Ridout v pain post vol the consideration before I be as to the personal  estate there be two question first whether I ought to admit parole evidence to  explain the intention of the testator and as to this I be of opinion it be not  a case in which parole evidence can be read and will be of dangerous  consequence it be true there be some thing here which will make a judge wish  to admit it but I must not follow my inclination only for I do not know that  upon the construction of a will court of law or equity admit parole evidence  except in two case first to ascertain the person where there be two of the  same name or else where there have be a mistake in a Christian or surname  Harris v bishop of Lincoln p W anon Eq Abr pl Riverss case ante vol Baylis v  the attorney general ante Castleton v turner post vol Goodinge v Goodinge Ves  Hampshire v pierce Ves dowset v sweet Amb Bradwin v harpur Amb parson v parson  Ves jun send vide deal mare v insurgent bro Charles so parole evidence have be  admit to ascertain the thing devise Hodgson v Hodgson vern Pendleton v grant  vern fonnereau v Poyntz bro Charles Rep and this upon a absolute necessity as  in Lord cheney case where there atkins er p be two son of the name of John    and if the court have not let in such evidence it will have make the will void  notwithstanding there be such a person as John c and the doubt be only which  of they be mean and notwithstanding too the heir at law be clear disinherit  the second case be with regard to result trust relate to personal estate where  a man make a will and appoint a executor with a small legacy and the next of  kin claim the residue in order to rebut the result trust for the next of kin  in the case of Littlebury v Buckley Eq Cas Abr and the countess v the earl of  Gainsborough parole proof be admit to ascertain the person who be to have the  residue see Brasbridge v Woodroffe ante walker v walker ante atkins it be very  true case may be cite where Lord Cowper have admit such evidence for he go  upon this ground that it be by way of assist his judgement in case extreme  dark and doubIful Docksey v Docksey vin pl Hampshire v pierce Ves coote v Boyd  bro Charles Rep I have the great deference for his judgement but must own I be  never satisfy with this rule of Lord cowpers of admit parole evidence in  doubIful will beside he go further in the great case of stride v Russell vern  in which there be a appeal to the house of lord Mr justice Tracy who assist  Lord Cowper in that cause be at first of the same opinion with he but upon  consider it more disavow his first opinion and be clear that it can not be  admit and this alteration in his judgement be mention in the house of lord in  the case of selvin v brown case in the time of Lord Talbot I be of opinion  that it ought to have be admit and even Lord Talbot when he have hear the  cause have a remorse of judgement at the same time he reject the parole  evidence but the house of lord refuse it as of most mischievous consequence  and affirm the decree item I give to John pound and several legacy to other  and then dispose of all the rest and residue here be undoubted a contradiction  and repugnancy in the word for in the first place she have give all her  personal estate to the plaintiff and yet legacy come afterward and a devise of  the residue what then must be the construction as to the general question  where the same thing be describe general and give to two different person in  the former and latter part of a will Lord coke be of opinion the latter word  shall revoke the former but in Plowden in the case of paramour and Yardley  Plowd S c it be say they shall take as jointtenants I own the reason in  Plowden be not convince to I but rather incline to Lord coke   Litt b though  the latter case have take it otherwise but no certain rule be to be lie down  as to construction of devise and so say Swinburne in the that part chap but  they must depend upon their particular circumstance atkins in the case of a  simple legacy if a man make a will and give a horse to a in the first part and  in the latter end of it give the same horse to b it be a revocation of the  former legacy and therefore Swinburne be mistake in point of law upon the  whole of what Swinburne say the result be this that if the same thing be give  to two person they shall take as jointtenants unless there be something to  indicate and prove the intention of the testator to revoke and vary the devise  now try the present case by this rule and see if it do not come exact within  it the testatrix by give legacy after the devise of all the personal estate  have vary the will pro tanto it be true say that a man may give the whole in a  former part and qualify it afterward and still the first legatee be entitle in  part but here in case the whole personal estate shall not be sufficient to pay  the legacy she charge the real estate with they upon a supposition that the  other may not be sufficient and therefore be a plain indication of her  intention in one event total to revoke the devise of the personal estate then  it must be admit that here be a alteration of her intention as to this devise  before she finish her will afterward she say I give all the rest and residue  of my personal estate to my uncle Leonard collards three daughter atkins er p  what be the construction then why that the testator have make a alteration in  her intention throughout Mr brown will endeavour to find out a rest or residue  notwithstanding all the personal estate be give away to the plaintiff and that  be suppose the plaintiff have die in the lifetime of the testatrix then it  will have sink into the residue as a lapse legacy and the three daughter of  the uncle will have be entitle under the devise of the rest and residue but  this will not hold for when a person make a will and give particular legacy it  be not suppose to be in the view of atkins the testator that legatee will die  in his lifetime nor do he provide for that accident and this be the reason it  be call a lapse legacy because the testator have it not in view at the time of  the will fane v fane vern be strong to this point upon the whole I be of  opinion the plaintiff be not entitle to any part of the personal estate Reg  lib b fol