Ryerss v. Wheeler. made at the time of fraSir John Leach, in Goblet The form of one of the objections at the trial seems to suppose, that the testimony came within those cases which refuse the testator's declarations intended by him directly to explain the words of his will; and I agree that such declarations, especially if they were ming the will, are not admissible. v. Beechy, Wigr. Extr. Ev. 151, App., rejecting the evidence of Mary Holt, which related to what Nollekens said at the time of her witnessing his will. Lord Thurlow said very properly in Fonnereau v. Poyntz, 1 Br. C. C. 477, "I lay out of the case all declarations of the testatrix of what she really meant to give, at the time of making her will; and all state of her property from whence it might be inferred what she meant." But he immediately added, "you must here evidence concerning the subject to which the will applies, in order to see whether the description applies aptly or not." All the cases agree that this latter rule lets in what the testator has done to his property, in altering its nature or its form. His acts have thus left it within, or taken it out of the description, and there are several cases that his declarations are admissible for the like purpose of applying the description. Sanford v. Raikes, 1 Meriv. 646, will serve in a good measure, to illustrate both propositions. The testator had ordered timber to be cut down on his Youlston estate, to the value of £10,000; afterwards he devised a house, which he had before agreed for the purchase of, to one Sanford; and added in his will, which [house] is to be paid for out of timber which I have ordered to be cut down." Sanford filed his bill to compel the application of the Youlston estate timber to the purpose of paying for his house. It was denied by the defendants that the will could be explained by evidence of what the testator had directed as to cutting down the timber. To which the master of the rolls (Sir William Grant,) answered: "I had always understood, that where the subject of a devise was described by reference to some extrinsic fact, it was not merely competent, but necessary, to admit extrinsic evidence to ascertain the fact, and through that medium, to ascertain the subject of the devise. Here the question is Ryerss v. Wheeler. not upon the devise, but upon the subject of it. Nothing is offered in explanation of the will, or in addition to it. The evidence is only to ascertain what is included in the description of the thing devised. When there is a devise of the estate purchased of A., or of the farm in the occupation of B., nobody can tell what is given, till it is shown by extrinsic evidence what estate it was that was purchased of A., or what farm was in the occupation of B. What is there, in the fact here referred to, viz: an antecedent order for cutting down timber, that makes it less a subject of extrinsic evidence than such an one as I have alluded to? The moment it is shown that it was a given number of trees growing in such a place, or £10,000 worth in value of the timber on such an estate that the testator had ordered to be cut down, the subject of the devise is rendered as certain as if the number, value or situation of the trees had been specified in the will." Then in respect to the name of an estate fixed by the declarations of the testator. In Doe, ex. dem. Beach, v. The Earl of Jersey, 1 Barn. & Ald. 550, in K. B., 3 Barn. & Cress. 870, S. C. in House of Lords, the testator devised thus: "all my Briton Ferry estate, and all my P., C. estate, which, as well as my Briton Ferry estate, lies in the county of Glamorgan." The court held that the devisee was not confined to the Briton Ferry estate, lying within the county of Glamorgan, but might recover certain premises lying in Brecon, out of the parish of Briton Ferry, and out of Glamorgan, because the premises had been known and reputed as a part of the Briton Ferry estate. Abbott Ch. J. said, the words "all that, my Briton Ferry estate, &c. denote a property known to the testratrix by the name of her Briton Ferry estate." Among other things, the entries of the stewards of the testatrix and her predecessors, in which they called the premises in question "Briton Ferry estate, in the county of Brecon," was held to have been properly received at the trial. In short, the case was in principle precisely the one before us. Evidence was received both of the testatrix's own declarations, and those made by her agent, the steward, and the reputed name under which the parcel was Ryerss v. Wheeler. comprehended. Abbott, Ch. J. added, that the question was one of parcel, or no parcel, and the purpose of the evidence was so obvious that the judge did right in receiving it, without the counsel being put to specify the object with a view to which it was offered. The case of Hatch v. Hatch, 2 Hayw. 32, is also in point. It is very common that neither the judge nor jury can understand the meaning of a word used to denote the subject of bequest or devise. The testator may express himself in a foreign language, or use terms with which, as a member of a particular trade or calling, he is familiar, Wigr. on Extr. Ev. 34, 5, or in language which has a provincial or local meaning. Gresl. Eq. Ev. 199. In either case, persons acquainted with the meaning of the words must be received as witnesses to translate or define them. ld. id. Nollekens, the sculptor, bequeathed "all the marble in the yard, the tools in the shop, bankers, mod. &c. and sculptors were received to show that mod. meant models, and then what the latter word was understood to import among sculptors. Goblet v. Beechy, 3 Sim. 24. Wigr. on Extr. Ev. 139, App. S. C. In I mentioned a devise to another by a nick name. Andrews v. Thomas, 1 Cox, 225, Sir Lloyd Kenyon admitted, you may prove that the testator usually called the devisee by that name. Again, in Herbert v. Reid, 16 Ves. 481, the testator bequeathed £500 to Jane Herbert, if in his service at the time of his decease. She lived with and served the testator some time, but left his house shortly before his death, and his declarations soon after she left were received, to show that he still considered the legacy as her due, and that she was to return, if he got well. And it was inferred on the whole of what he said, that he did not consider her as having quit his service, though she had actually left the house. She therefore obtained a decree for the legacy. So much for the declarations of the testator. They are clearly receivable as giving a name or character either to the devisee or the property devised; and that too, as appears VOL. XXII. 20 Ryerss v. Wheeler. by the cases, whether such declarations be made before or after the will was executed. In the case at bar, the name of the premises in question as given by the testator when he talked of them was back lands. Sometimes he gave them another name, but I understand the evidence to be that he most usually called them back lands; and there can be no doubt that proof to show the prevalent name in his family and neighborhood, which was also back lands, is admissible. None of the evidence given, tended to add to or detract from the language of the will, but merely to explain and give meaning to that language. It was different in the case of Doe, ex Dem. Chichester, v. Oxenden, 3 Taunt. 147, a case mainly relied on by the defendant's counsel. The devise there was, "I give my estate of Ashton." The testator had an estate which he used to call his Ashton estate, only a part of which was locally situate at Ashton. His declarations giving a name to the estate, and the acts of his stewart, were denied as evidence that he intended to devise his whole Ashton estate. But this was on the ground that the words meant an estate locally situate at Ashton; Per Holroyd, J. in the course of the argument of Doe, ex dem. Beach, v. Earl of Jersey, in 1 Barn. & Ald. 554; Gibbs, Ch. J. in Doe, ex dem. Oxenden, v. Chichester, 4 Dow, 92, et seq. in the House of Lords; and to receive the testator's declarations, going to show the contrary, would therefore be to contradict the language of the will. See Wigr. on Extr. Ev. 15, Prop. II., and his commentary on Doe v. Oxenden, at p. 19 and 60. The learned writer thinks that the principle of adhering to local description was carried in this case to its utmost extent. But the decision was affirmed in the House of Lords, 4 Dow's P. C. New trial granted. The costs to abide the event; with leave to amend Narr. on same terms.* * See the case of Fish v. Hubbard's adm'rs. 21 Wendell, 651. IVES & M'CARTY US. VAN EPPS & SHATTUCK. Where an action is brought for breach of a contract, whether the same be sealed or not, and the defendant can show that the plaintiff has not performed the contract on his part, according to its terms or spirit, so as to entitle him to a cross-action, he may at his election, instead of bringing an action in his turn, recoupe his damages arising from the breach com mitted by the plaintiffs, whether they be liquidated or not. It seems, however, that in such case, the defendant should give notice with his plea of his intention to insist upon the right of recoupment. MOTION to set aside report of referees. This was an action of covenant on a sealed agreement, by which the plaintiffs contracted to complete a certain wall in a good, sufficient and workmanlike manner, as soon as might be, for which the defendants agreed to pay, within 30 days from the date, $1500, with other sums. This action was brought to recover the $1500. For this sum, one of the defendants had given his acceptance to the plaintiffs, which had been dishonored. The cause was heard before referees, where, among other matters, the defendants proposed to inquire into the character of the work done under the contract, in order to prove that it was of a quality inferior to what the contract required. The offer was overruled; and the referees reported in favor of the plaintiffs the whole $1500, with interest. The defendants now move to set aside the report. H. V. D. Van Epps, in person. W. F. Allen, for the plaintiffs. By the Court, COWEN, J. Many points were raised before the referees, which are now repeated here, on the motion to set aside their report. I have been unable to discover the least force in any of them, except that arising from the offer and rejection of the testimony to show that the contract had not been performed in a workmanlike manner. This was proper, not by way of set-off; but in |