The opinion of the Court was drawn up by

The clause in the will under which the *68plaintiff claims 663 dollars and 66 cents as a legacy to hei, is ™ the following words.—“ Seventhly, 1 bequeath to my said wife the money she may have in her possession at the time of my decease, and all rents in arrear on the real, estates at Lynn.” If the Court can look dehors the will to ascertain what was intended by the testator by the words “ all rents in arrear,” &c. it would be very clear, by the memorandum on the envelope, indorsed “ Mrs. Wadsworth’s pa pers,” dated April 1, 1824, that he intended to give the sum there specified as the proceeds of her real estate, the rent of which he had received; for in an additional memorandum he says, “ the above sum of 663 dollars and 66 cents is included in my will.” There being no date to this latter memorandum, it is to be presumed that it was made after the will, and was occasioned by some provision respecting rents made therein ; and these words in the will, “ all rents in arrear,” &c. might reasonably be referred to' the amount of rents of which the account is stated in the mem orandum. And although the whole of the sum mentioned in the memorandum should not have been received by him specifically from rents, taking the will and the memorandum together, there could be no doubt he intended to give her that sum.

But it is insisted by the executor, that there is no ambiguity in the clause, and therefore we are not at liberty to seek for a construction dehors the will. Rents in arrear on the real estates in Lynn, are, it is said, perfectly definite words, and there being a trifling sum of rent due from the tenant, at the decease of the testator, it must be intended the clause related to that only. The position is true, and well supported by the authorities, that extrinsic matter is not to be resorted to, when the meaning of the testator can be come at in the will itself, or when the words used themselves con stitute a legacy or devise, there being no uncertainty as to the person who is to take, or as to the thing bequeathed. We think, however, there is an ambiguity in the words used, which wifi justify an explanation by extrinsic matter, and particularly by the words used by the testator himself in memoranda written and signed by him. We are obliged to sup *69pose, in justice to the character of the testator, that he intended, in the clause in question, a bounty to his wife out of property belonging to himself. We presume also, from the scrupulous management of his wife’s property, that he believed that all rents unpaid at the time of his death, accruing from real estate belonging to her, by law survived to her, and became her sole property, without any gift from him. That such is the law in the case of leasehold estates belonging to the wife, unless the rent was secured by a lease made by the husband alone with the tenant, in which it was stipulated that the rent should be paid to him, is very clear. See Com. Dig. Baron and Feme, F 1, and the cases there cited ; also 1 Roper’s Husband and Wife, 170, et seq.; Chamber on Leases, 221 ; and it is quite likely Mr. Wads-worth supposed the law to be the same in regard to his interest in his wife’s estate. By the bequest then of rents in arrear on the estate in Lynn, which was her property, he could not have intended rents unpaid by the tenant, for we ought not to suppose he made a pretence of giving to her, what he had reason to think was already hers. What then did he mean by rents in arrear ? He has himself explained it, and very satisfactorily. He had received rert during the coverture from her real estate. This he had a right to do, and to appropriate to his own use ; but he kept an exact account with his wife, meaning conscientiously to restore all which he thought belonged equitably to her, though legally to him, and this he intended to do by his last will, and this he did. He gives her all the money in her possession at the time of his decease, and all the rents in arrear on the real estates at Lynn. By rents in arrear he meant the sums he had received and kept an account of, as belonging equitably to his wife ; rent in arrear to her, which he had not paid her, but kept on hand for her; and he further says, “ the above sum is included in my will.” How is it included, unless in the clause giving her the rents in arrear ? It is supposed by the defendant’s counsel, that it is included in the . legacy of 1000 dollars ; but on recurring to the clause giving that legacy, and the other provisions made for her out of his personal estate, it is manifest he considered all this an equiv*70aient for the legal claims she might have for a sufficient provision 111 his real estate in the form of dower. That the testator used the words “ renta in arrear ” in an untechnical and inartificial manner, is evident from the memorandum in relation to a note given by Nathaniel Farrington, March 19, 1824, secured by a mortgage. The memorandum is, “ This note, with the mortgage, I consider as Mrs. Wadsworth’s, included in a clause of arrears in my last will.” There is no clause in the will which contains the word arrears, except the one under consideration, and it was necessary to look dehors the will to ascertain what was meant by the terms, rents in arrear, on this subject. The testator certainly meant that this note should go to his wife, and so the executor considered' it, for he has delivered it to her. Why then should not the money which he kept an account of as accruing from rents, pass to her in the same clause, when he says, at the foot of the memorandum, “ the above sum is included in my will ” ?

If it be said, that the devise to her in the first clause of the will, of all his right and interest in the real estate of her father and mother, shows that he did not understand the rules of property, and therefore that he intended to give her only what was already hers, under the phrase rents in arrear, it is a sufficient answer, that he appears to have had some interest in that real estate, purchased of Thacher, which was the object of that devise. We are satisfied, therefore, that it is right to look into these memoranda, in order to find out the meaning of the terms rents in arrear, for the reasons above stated ; and that by those words he meant to give her the sum included in the memorandum, as the amount re ceived as rents on her estate.1

Defendant defaulted.