This is an action to recover the balance of a legacy to the plaintiff’s testatrix under the will of Alfred Allen, of which the defendants are executors. The case was tried to the court in the Superior Court and judgment was rendered for the defendants.
The plaintiff has appealed, assigning the following reasons :—
1. That it appears by the will and codicil that Abigail B. Chapman was entitled to receive from her father’s estate, one year after his death, the sum of $2,000; and that the court erred in holding that the payment of $1,052 was a payment in full of said legacy of $2,000.
2. That it appears by the writing of April 1st, 1869, that Mrs. Chapman received from her father $1,000, contemplating at that time that the same would be applied as a portion of her share of her father’s estate; and that, nearly three years afterwards, March 14, 1872, her father executed *160■ a will in which he gave to her “ the sum of $1,400 in addition to what I have before given her, the same to be paid in one year from my decease; ” and that more than eleven years subsequent, to the date of said writing of 1869, the testator reaffirmed his will by codicil, and gave his daughter, Mrs. Chapman, an additional legacy of $600. The court erred in holding that Mrs. Chapman’s rights under the will and codicil were affected in any way by the gift or payment of 1869, because the will was made subsequent to said gift or-payment and is controlling.
8. That it appears that the defendants paid Mrs. Chapman $1,052 on April 10th, 1883, and took from her a receipt in full, and that no other payment has ever been made by them on account of the legacy; also that at the time of that payment the defendants stated as their understanding of the matter, that the $1,000 referred to in the writing- of 1869 was a part of Mrs. Chapman’s legacy, and that only the balance between that sum and the sum of $2,000 was due her, and that this was the understanding of all parties at that time. The court erred in holding that this payment of $1,052, or the receipt in full, operated to discharge Mrs. Chapman’s right to the balance of the legacy of $2,000 bequeathed to her in said will and codicil, because said receipt was given by her under a mistake of law as to her legal rights under the will and codicil.
4. The court erred in holding that the sum of $1,000 mentioned in the writing of 1869 was an advancement; first, because there could be no advancement except in case of intestacy; and second, because the will was made subsequently to said gift or payment, and does not refer to or treat it as an advancement, but on the contrary specifically states that the bequest is made in addition to all previous gifts.
5. The rights of the parties at issue depend entirely upon the construction of the will and codicil. The question of construction is purely a question of law for the court to determine from the will itself. The writing of 1869 is not referred to in the will or codicil, and the court erred, therefore, in receiving the writing in evidence, either for the pur*161pose of explaining or construing the will, or for the purpose of affecting the rights of the parties under the will, because the writing is extrinsic evidence and not admissible in the construction of the will.
6. The court erred in admitting in evidence the several oral declarations of the testator, made a few weeks before his death, in relation to said gift or payment and said writing of 1869, either for the purpose of explaining or construing the will, or for the purpose of affecting the rights of the parties under the will; because the meaning of his will and the wishes and intent of the testator cannot be otherwise known than by the language of his will.
7. The court erred in admitting in evidence the declarations of Mrs. Chapman as to the gift or payment of 1869, and as to her understanding of her rights under the will, because her right under the will is purely a question of law, and her declarations in that regard are irrelevant.
8. The court erred in admitting in evidence the receipt of April 10th, 1888, for any other purpose than to show the payment of $1,052 on account; because the receipt was given under a mistake of law, in that both parties believed at that time that the defendants had the legal right to deduct from the legacy of $2,000 the sum of $1,000, mentioned in the writing of 1869.
9. The court erred in admitting evidence to show that the testator had given money to Mrs. Chapman prior to April 1st, 1869, for the purpose of affecting the construction of the will or for any other purpose ; first, because the language of the will is clear and no extrinsic evidence is admissible to explain it; and second, because the bequests therein made to her are declared to be in addition to all previous gifts, and the evidence .was therefore irrelevant.
On April 1st, 1869, Abigail B. Chapman received $1,000 from her father, Alfred Allen, and gave him a writing as follows: “East Windsor, April 1st, 1869. Received of my honored father one thousand dollars as a part of my portion of his estate at his decease. Refer to will.” This was signed by herself and Wilbur F. Chapman, the plaintiff, her husband.
*162There is no finding upon the point whether there was then any will of the father in existence. On March 14th, 1872, Alfred Allen, the father, executed a will, the fourth clause of which is as follows: “To -my daughter Abigail B., wife 'of Wilbur F. Chapman, I give the sum of $1,400, in addition to what I have before given her.” On April 2'7th, 1880, by a codicil thereto he bequeathed to her “ six hundred dollars in addition to the fourteen hundred dollars, as in my last aforesaid will.” The testator died in January, 1883, leaving the aforesaid will and codicil.
On April 10th, 1883, the defendants, as executors of the will, paid to Mrs. Chapman $1,052, and she, together with her husband, signed a writing in terms as follows: “ Ellington, April 10th, 1883. Received from Henry T. Allen, executor of Alfred Allen’s will, the dower'of $1,052, in full for the legacy left me by last will, and discharge of all claims on my part against said executors and said estate.” She died in September, 1884. Her husband, the plaintiff, is executor of her will and administrator de bonis non, and as such has instituted this suit against the executors of the will of Alfred Allen for the recovery of $1,000, as unpaid balance of legacy to his wife.
The defendants'make the following answer:
On or about the first day of April, 1869, the said Alfred Allen, then in full life, paid to the said Abigail B. Chapman, then in life, the sum of one thousand dollars, with the intention on the part of the said Alfred, and with the understanding on the part of the said Abigail, that said sum be and was paid to her as an advancement towards her distributive share in his estate and toward the legacy or legacies which he should give to her by will, and said sum was received by the said Abigail as such advancement. On or about April 10th, 1883, the defendants, as the executors of the said Alfred, paid over to the said Abigail the sum of one thousand and fifty-two dollars, the amount to which the said Abigail was entitled under the will of the said Alfred, after deducting the said sum of one thousand dollars advanced to her as aforesaid by the said Alfred on or about April 1st, 1869, and the said Abigail *163received said sum of one thousand and fifty-two dollars in full payment of said legacies and of all claims which she had against the estate of the said Alfred, and she and her said husband, the said Wilbur P. Chapman, then executed and delivered to the defendants as said executors in writing a release in full discharge of said legacies and of all -claims of the said Abigail against the defendants as executors aforesaid and against the estate of the said Alfred Allen.
The plaintiff denied these averments, and replied in effect that he and his wife signed 'the discharge in full under a mistake as to their legal rights under the will, and as to the contents of the release; and that it was intended by them to be a receipt for $1,052 only.
It is found that the receipt “ was signed and executed with full knowledge on the part of said Wilbur and Abigail of all said surrounding facts and circumstances, and without fraud, accident, or mistake, or through the procurement of the defendants, unless there was a mistake or misapprehension as to her legal rights shown by the facts hereinafter stated.”
The defendants, to rebut the claim of the plaintiff that the receipt was executed by mistake or accident, or under a misapprehension of fact or law, or by the procurement of the defendants, and for the purpose of proving that it was executed with full knowledge and information on the part of Mrs. Chapman, and in accordance with an agreement and understanding between her and her father, offered evidence to prove that, subsequent to the date of the codicil, in a conversation with her father, she recognized the $1,000 referred to in the writing of April 1st, 1869, as a just and subsisting debt which she owed her father, and was to repay without interest \»y having the same deducted from whatever she had of his estate, and that this was the understanding between herself and her father.
The defendants also offered fhe declaration of said Alfred, made a few weeks before his death to the defendants, “ that they would have to settle his estate,” and “to remember that the sum of $1,000, which he let Abbie' have in 1869, *164was to be deducted from the legacy to her in his will; that he had taken a receipt from Abbie at the time he let her have the money, and that the receipt was in an envelope in his safe; also that said Alfred went to the safe and took therefrom the envelope in which the receipt was sealed up, showed it to the defendants, replaced it in the safe, and told them they would find the receipt in such envelope after his death.” Also similar declarations by said Alfred to the defendants still later.
They also offered in evidence a claimed declaration of Mrs. Chapman, made by her at the time the will and codicil was first read to the family, immediately after the burial of her father’s body, to wit: “ I suppose I have had the most of mine,” referring to her legacy.
In support of their answer the defendants offered in evidence the receipt of April 10th, 1888, which the court received as bearing upon the issue, the plaintiff objecting.
They also offered evidence tending to prove, and claimed to have proven, that prior to 1869 the testator had given to his daughter money at various times, amounting to $600, as absolute gifts; not to be charged to, not to be returned or repaid by her at any time in any form; that on April 1st, 1869, he delivered to her $1,000, for which he took the receipt and reference to a will recited above; that he.intended, that the money should be returned to his estate in the form of a deduction by her from the share of his estate which would probably go to her as one of his children; that he subsequently made a will in which he gave her $1,400 “ in addition to what he had before given her”; also a codicil giving her “$600 in addition to the fourteen hundred ” specified in the will; that after the date of the codicil, the daughter, in a conversation with .her father, recognized the $1,000 referred to in the writing of April 1st, 1869, as still a just and subsisting debt which she owed to her father, in this sense, that it was to be repaid" to his estate without interest by deducting it from whatever of that estate he should bequeath to her, and that it was the understanding of both of them that this sum of $1,000 should in that way be re*165turned to the estate; that subsequently to the codicil the testator showed the receipt to the defendants, whom he had named as his executors, and told them that the said sum for which he had taken Abigail’s receipt was to be deducted from the legacy to her in his will; that upon the first reading of the will and codicil in her hearing Abigail said “ I suppose I have had the most of mine”; that thereafter, on April 10th, 1888, when the executors paid $1,052 to her husband, at her request, they joined in a written receipt and acknowledgment that it was in full for the legacy left her by his last will and in discharge of all claims on her part against the estate; and that she died on September 22d, 1884, not having at any time demanded more. . This was received, notwithstanding the objection of the plaintiff. Upon, evidence introduced by the plaintiff it is found that when the defendants paid the $1,052 on April 10th, 1883, they said to Mrs. Chapman that they understood the $1,000 of April 1st, 1869, to be a part of her legacy, and that she was then entitled to the balance only; that this was then the understanding also of her and of her husband; but that her understanding was independent of any act or statement by the defendants.
The delivery on April 1st, 1869, of $1,000 by the testator to Mrs. Chapman was of a portion of a father’s estate to a daughter, not to be repaid in any event, but to be deducted from her inheritance. The reference to a will in the receipt which she gave therefor was presumably to one then in existence, by the terms of which she would be entitled to more than that sum. So' far as such will and the receipt were concerned the latter would control the former; and her right, upon the death of her father leaving such will, would have been to the remainder, deducting that sum.
The father died, however, leaving a will, executed at a date later than that of the receipt, by which he gave her a legacy of the specific sum of $2j000. And when there has been the delivery to a child by a father of a sum of money not to be repaid in any event, but as a portion of the child’s inheritance, and there is by a will subsequently executed a *166specific legacy without reference to the former delivery, the child is entitled to the whole of the legacy. The will is the last and controlling utterance of the testator. If he says therein that the child shall receive the specific legacy, of legal necessity he says that he has thereby converted the previous delivery into an absolute gift as of the time when made. Moreover the will before us in express terms requires the executor to pay a legacy of a specific sum to Mrs. Chapman in addition to all previous gifts to her.
The defendants introduced evidence tending to prove that after the execution of the will there was a conversation between Mrs. Chapman and her father in which she recognized her obligation to deduct the $1,000 received in 1869 from her inheritance, and that this was the understanding of both. Assuming this fact to have been proven, yet there is no finding that when speaking she had knowledge that lie had executed a will after the receipt, by the terms of which he had released her from her obligation.
Presumably she was reaffirming the obligation which she knew to be upon her because of the execution of a receipt for money delivered after a will. Therefore we are not to impute to her words greater force than this. We are not to say that she intentionally, with knowledge that she had been released, reimposed upon herself the legal obligation to deduct $1,000 from her inheritance.
It is found that Mrs. Chapman signed the discharge without mistake, “ unless there was a mistake or misapprehension as to her legal rights shown by the facts hereinafter stated.” And one of the facts subsequently stated is this:— when she signed it, she understood that the $1,000 of April, 1869, was to be a part of her legacy and that she was then entitled to the balance only.
This can be interpreted no otherwise than as a finding that she understood as a matter of law, under the receipt and will, that she could not compel payment of more than $1,000; that the bar was not simply moral, because of her . conversation with her father, but absolutely legal. And a *167discharge of an undisputed debt of $2,000 for $1,000, made in mistake of law, is not binding.
But beyond all this, it is to be remembered that the legal effect of the legacy to Mrs. Chapman, with the accompanying words—“ in addition to what I have before given her,” is to be ascertained and declared by the court" from the words of the will, unassisted by proof of declarations by the testator as to his understanding of them. The statute permitting proof of the declarations of deceased persons concerning the matter in issue, in suits by or against tbeir -representatives, does not include declarations by testators as to the meaning attached by them to the provisions in their wills. A will must still declare its own meaning by the mouth of 'the court.
There was error in the reception of the declarations of the testator to the defendants, in the absence of Mrs. Chapman, that the $1,000 delivered by him to her in 1869 should be deducted from the legacy to her. These declarations were received upon this question, namely, Did she have knowledge of her legal rights when she executed the discharge of 1883 ? Plainly those declarations, unknown to her, in nowise tended to prove such knowledge on her part.
There is error in the judgment complained of and it is reversed.
In this opinion Loomis and Beardsley, Js., concurred. Park, C. J., and Carpenter, J., dissented.