The only question raised upon this motion in error, regards the validity of a note of hand. The note is made payable to the heirs of Jonathan Jcsup, who is admitted upon the record, to have been living, when the note bears date. It is averred in the declaration, that the plaintiffs below were the children and presumptive heirs, and the only presumptive heirs, of the said Jonathan Jcsup ; and that the prom*282ise contained in the note, was made to them by that title and appellation.
These averments, if well made, are admitted by the demurrer. But it is said, that this contract is, on the face of it, so utterly void, as that it cannot be aided by any averments whatever ; that there are no promisees to this note ; no persons in existence to whom it is made payable.
This is, obviously, the only ground upon which the case of the plaintiff in error can be rested, with the least hope of success. Because, if the note be made payable to any person, although there may be an ambiguity with regard to the person intended, there is no doubt, that such a defect may be supplied by averment: And parol evidence is always admissible to explain a latent ambiguity. This rule obtains universally in the construction of wills. Even a misdescription may be corrected by averment; and a plaintiff, suing on a promissory note, which purports to be payable to a person of a different name, may aver, and show, by evidence, that he was the person intended. Willis v. Barrett, 2 Stark. Rep. 29. 3 Stark* Ev. 1021. 1025. The Medway Manufacturing Company v. Adams &. al. 10 Mass. Rep. 360.
Is, then, the note in question void, on the ground that it mentions no promisees, and of course contains no promise T The affirmative of this proposition rests on the legal maxim, uquod memo est Jmres viuentis.” The accuracy of this maxim, as a general proposition, is unquestionable ; And it is undoubtedly true, that to constitute a person a full and complete heir, the death of the ancestor is essential. But it is also true, that the term “heir” is not hi ways used, in the law, as denoting a person, whose ancestor is dead. There are many cases, where it applies, though the ancestor be living ; and there it means the heir apparent. In this sense, it is frequently used in statutes, and in legal documents. Thus is it used in the Slat. 25 Edw. III. by which it is made treason to. kill the heir of the king. In the same sense is it used in writs of ravishment of ward — “ Quare filium et hceredem rapuit.” And there are numerous instances under wills, where the word heir has been used in the same sense. Thus, a devise to the heir of a person living has been repeatedly adjudged good, when it was manifestly the intent of the testator to designate the heir apparent. Burchett v. Durdant, 2 Vent. 311. Darbison d. Long v. Beaumont, 1 P. Wms. 229 S. C. in Dom. *283Proc. 3 Bro. Parl. Ca, 60. (Toml. ed.) Goodright d. Brooking v. White, 2 Bla. Rep. 1010. Cruger & al. v. Heyward & al. 2 Desaus. Ch. Rep. 94. Crane & al. v. Rock, 7 Bing. 226. The word heir, does not, then, necessarily and ex vi termini, import the death of the ancestor.
It may be, and as we have seen, often is, used to denote the heir apparent, or presumptive heir of a person living. And in this sense it was, undoubtedly, used in the case now before us.
There can, indeed, be no question, in regard to the intention of the parties to this contract. The note is on demand, bears interest from the date, and is capable of being enforced immediately. It was not to await the death of the ancestor, but to take immediate effect. The promise was made to persons in existence ; to persons capable of receiving and enforcing the contract. They are also sufficiently designated ; and we have only to apply a very familiar and well settled principle, and that is, that in the construction of contractSj the intent of the parties is to govern. I will only add, that the precise point here raised, was settled in the case of Bacon v. Fitch, 1 Root, 181.
The judgment of the superior court must be affirmed.
The other Judges were of the same opinion.Judgment affirmed.