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Pocock v. Redinger.

she devised add strength to our conclusion, for the testatris says: “I also own the east forty-six acres off of the south sixty-three acres of the south half of the south-west quarter of section twentyeight.” The mistake appears, from the language of the will, without the aid of verbal declarations, for when it was shown that the testatris did not own the east half of the quarter section, but did own the west half, no parol evidence was necessary to prove that she had made a mistake in drafting her will.

The case is within the rule declared in Cleveland v. Spilman, 25 Ind. 95, and Black v. Richards, 95 Ind. 184. The principle upon which the rule depends is, that where the will itself shows that there has been a mistake in specifically describing land which is also designated by a general description, the will may be made to operate upon the land intended to be specifically described, but which, by mistake, is incorrectly described in the specific description which follows the general. Where however the language of the will itself does not furnish evidence of mistake, a court cannot interfere upon the ground that a mistake was make by the testator.

Verbal declarations of a testator are not competent evidence to prove a mistake in a will, but evidence of facts and circumstances is. It is proper to show the situation and condition of the testator's property, but it is not proper to prove what he said, for when the instrument is written, that is deemed the expression of the testator's intention, and there the exploration for his intention must be made. It is obvious that if verbal declarations were admitted, wills might be overthrown which expressed the intention of one who could not dispute evidence of his declarations, nor give any explanation of them, and thus grave evils would result. The law however is so well settled by the authorities that discussion is unnecessary. Funk v. Davis, supra; Judy v. Gilbert, supra.

The trial court did therefore err in admitting evidence of the oral declarations of the testatrix; but we think this error must be treated as a harmless one, as it clearly appears from the record that the result must have been the same had this evidence not been given.

We do not depart from the ruling in Judy v. Gilbert, supra, and Funk v. Davis, supra, for we hold that the will decisively and clearly shows that the testatrix meant to devise the half of the quarter section she owned, and not any other parcel; that as it may be shown by evidence of the fact, without proof of oral declara

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Pocock v. Redinger.

tions, that she owned not the parcel specifically described, but another in the same section, the case is not within the rule declared in those cases, but is within the rule declared in Cleveland v. Spilman, supra.

Judgment affirmed.

NOTE BY THE REPORTER. - See note, 46 Am. Rep. 72.

In Peter: v. Porter, 60 How. Pr. 422, Special Term of the Supreme Court, the testatrix devised two lots and a gore “on the southerly side of Forty-ninth street near Eighth avenue.” Extrinsic evidence showed that testatrix owned no lot on Forty-ninth street, but did own property fully answering the descrip. tion on One Hundred and Forty-ninth street, and that people living above One Hundredth street in speaking of the streets drop the “One Hundred.” It was held that the devise carried the property on One Hundred and Forty-ninth street. Citing Lefevre v. Lefevre, 59 N.Y. 434; 8. C., in note, 46 Am. Rep. 77.

In Gallup v. Wright, 61 How. Pr. 286, Special Term of the Supreme Court, the testatrix gave a legacy to her “grandniece, Fanny R. Gibson." She had co such grandniece, but she had a niece Fanny R. Gibson and a grandniece Fanny Gibson, daughter of Fanny R. Held, that extrinsic evidence was competent to show which was intended, and as the mother was nearer of kin the presumption was that she was intended.

In McDaniel v. King, 90 N. C. 597, where a testator devised his “home rlantation," describing it in such manner as that upon the face of the will the court can see what land was meant to be included within its boundaries, held that evidence as to what the testator, at the time of making the will, "called and considered his home plantation," was properly excluded. The court said: “ The words and bounded as above' coming next after the words 'my home plantation,' plainly indicate, and were certainly intended to indicate, what the testator meant by 'my home plantation. He knew that his home plantation was composed of sundry tracts of land, bought from various persons, at different times, and that it was important that he should define his meaning in that respect. In the first part of the paragraph he therefore fixed the boundary with certainty, and afterward he devised his ' home plantation, and bounded as above,' to his son Nathan, in the contingencies mentioned. It appears also that he well understood his purpose and how to effectuate it. He had devised to his son James several tracts of land and much personal property, besides the land included in the boundary. All this property he gave to his son James absolutely, unless he should die without issue, in which case this property so given him should go to his surviving sons, 'with the exception hereinafter named.' Then immediately he provides the exception, to-wit, the exception of the home plantation, and bounded as above,' which he devises to his son Nathan, in the contingency that James should die without issue, thus leaving to the surviving brothers the tracts of land outside of the boundary, and all the personal property, including the slaves. The phrase "and bounded as above' not only serves to indicate definitely what the testator meant by 'my home plantation, but it points out with certainty and identifies the land devised to Nathan McDaniel in the contingency provided for, as certainly as if there had been a devise to him directly. “Home plantation 'might be definite

Pocock v. Redinger.

- it might not; but the boundary designated, specified, made it definite and certain.

** If the testator had simply excepted his home plantation,' then a question might have been raised as to what lands composed it, and his meaning in respect thereto.

* There is no ambiguity; nothing is left in doubt. The testator had the right to declare what should constitute his ' home plantation;' he did so by fixing a definite boundary to it-one that leaves no doubt as to what he meant, looking at the plain legal import of the terms he employed to express his purpose in the will. It is so certain there is nothing to be explained or qualified.

"Evidence cannot be heard to explain, add to, take from, modify, or contradict & will when its terms plainly indicate the testator's purpose as to persons or things mentioned in it. In such a case, it must be construed upon its own terms, just as a deed or other written instrument must be construed. If a will is sufficiently distinct and plain in its meaning as to enable the court to say that a particular person is to take, and that a particular thing passes, that is sufficient; and it must be construed upon its face without resorting to extrane. ous methods of explanation to give it point. Any other rule would place it practically within the power of interested persons to make a testator's will, so as to meet the convenience and wishes of those who might claim to take under it.

" It is only where the will upon its face is intelligible--sufficiently certain – free from a doubt and ambiguity in its terms and phraseology, but ambiguity is raised by something, or circumstances, extraneous, outside of, or collateral to it, that evidence dehors can be received, not to interpret or affect the will itself, but to explain and make certain the person or subject-matter to which it refers and applies.

"In case the will describes and points to the person, object or subject intended, and there is more than one person, object or thing of like description, evidence is received to remove the ambiguity, and enable the court to reject one or more of the persons or things to which the description of the will applies, and to determine the person or the subject-matter the testator understood to be signified by the description in the will. For example, if a testator devise property to his cousin John Smith, and he has two cousins of that name; in such case, parol evidence will be received to explain which of the two the provision applied to. And so also if a testator have two 'home plantations,' one in one direction from his dwelling-house and the other in another, and he devises the home plantation to his son James, James may aver and prove that the devise to him applies to, and embraces the one lying to the eastward of the other. Mr. Broom in his Legal Maxims gives this apt illustration on this subject: 'A devise was made of lands to M. B. for life, remainder to her three daughters, Mary, Elizabeth and Ann, in fee, as tenants in common. At the date of the will M. B. had two legitimate daughters, Mary and Ann, living, and one illegitimate, named Elizabet'ı. Extrinsic evidence was held admissible to rebut the claim of the last mentioned by showing that M. B. formerly had a legitimate daughter named Elizabeth who died some years before the date of the will, and that the testator did not know of her death or of the birth

Pocock v. Redinger. of the illegitimate daughter.' Broom Leg. Max. 475; Barnes v. Simms, 5 Ired. Eq. 392; Stowe v. Davis, 10 Ired. 431; Institute v. Norwood, Busb. Eq. 05; Jones v. Robinson, 78 N. C. 396.

"The case before us does not present a question of latent ambiguity, the question is, what constituted the home plantation of the testator; he settled tjat definitely, and therefore the testimony offered was incompetent.”

In Taylor v. Tolen, 38 N. J. Eq. 91, it was said: “The testator gives to bis nephews and nieces, Louisa Silvers, Genevieve, Annie and Joseph Belcher and Ilerbert, Harmon and Joseph Baldwin, $3,000. He had no nephew by the name of Harmon Baldwin nor any by the name of Joseph Baldwin. But he had a nephew by the name of Samuel Harbourne Baldwin, who is usually called by his middle name, Harbourne. He had a nephew (brother of the last. mentioned one) by the name of Josiah M, Baldwin, who usually goes by the name of ‘Josie.' There can be no doubt that they are the persons meant by the gifts to · Harmon’and Joseph.'”

In Appel v. Byers, 98 Penn. St. 479, a testator devised property to his nephew A. B., and died, leaving two nephews of that name - one legitimate the other illegitimate. Held, that parol evidence was inadmissible to show that testator intended his illegitimate and not his legitimate nephew to be the object of his bounty. The court said: “Without regard to illegitimacy, the better and more authoritative rule is, that the intention of the testator, as expressed in the will, must govern in its construction.

“If however there is a mistake in the description so that no one corresponds to it in all respects, but some one does in many particulars; and no other does who can be intended, such person will take. Or if the will be plain and clear on its face, and only becomes doubtful when applied to the subject matter, extrinsic evidence of the intention of the testator may be received. Unless there be some ambiguity or obscurity on the face of the will or difficulty in finding the person or object to which it applies, extrinsic evidence should not be received to divert the will from the intention herein expressed. In Tucker v. Seamen's Aid Society, 7 Metc. 188, the testator gave a legacy to The Seamen's Aid Society in the city of Boston,' and 'The Seamen's Friend Society' claimed the legacy. The latter offered to prove that the testator had no knowl. edge of the existence of the society named in the will; that he did know of the other society; was deeply interested in its objects; had contributed to its funds, and had frequently expressed a determination to give it a legacy; that he directed the scrivener, who wrote his will, to insert the legacy as made to said society; but the scrivener, not knowing the existence of the society, told the testator the name of the society was 'The Seamen's Aid Society,' and the testator thereu pou consented to have that name inserted. This evidence was held inadmissible, and that the society named and described in the will was entitled to the legacy.

“It is true in Poroell v. Biddle, 2 Dall. 70, tried in the Common Pleas of Philadelphia in 1790, it was held that extrinsic evidence was admissible to award the legacy contrary to the express designation of the will, although the person accurately described therein existed. No question of illegitimacy arose in that case. The case is without authority to control us, and I do not find the

Pocock v. Redinger.

principle there declared, recognized by a higher court as a correct exposition of the law. On the contrary, in Wusthof v. Dracourt, 3 Watts, 240, the ques. tion of admitting such evidence is discussed by Mr. Justice ROGERS. After declaring that courts of law have always leaned against parol evidence to explain the intention of the testator, and that it can be admitted only where the ambiguity arises from extrinsic circumstances, so that the evidence is admitted from necessity, he proceeds to say: The modern doctrine is, that where a subject exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity. Evidence is only admitted dehors the will from necessity to explain that which would otherwise have no operation.'

“If the rule were held otherwise a person could feel no security in making 2 will. His intention, clearly expressed in writing, and the object of his bounty found, in all respects answering the description, might be defeated, and the statute relating to wills be made practically inoperative. If the language of this will applied to two legitimate nephews, so that either could take, bat for the existence and claim of the other, then parol evidence would be admissible to prove which was intended.

"In the present case there is neither patent nor latent ambiguity. The legitimate nephew precisely and in every respect answers the designation and description of the will; the other fails in law to be a nephew.

"This verdict shows that Philip Byers, the legitimate nephew of the tes. tator, fully satisfies all the terms of the will. To him they are perfectly and solely applicable. Being thus distinctly and accurately described there is no ambiguity to be explained. There is no necessity to go beyond him to give full effect to the will. To do so would not be to solve doubts or explain any obscurity; but to create them where none existed before.”

In Patch v. White, 1 Mack. 468, a will contained the following clause: “I bequeath and give to my dearly beloved brother, Henry Walker, forever, lot No. 6 in square 403, together with the improvements thereon erected and appartenances thereto belonging.” The testator did not own lot 6 in square 403; but the plaintiff, in an action of ejectment to recover lot 3 in square 406, offered to show by parol evidence that this clause was intended as a devise of lot 3 in square 406. The evidence proposed to be given was: 1. That the tes. tator intended to leave every thing he owned to bis brothers and sisters; 2. That he did not own lot 6 in square 403, but that he did own lot 3 in square 406, which was in the same general system of lots, all the four hundred series running down in the same straight line through that part of the city; 3. That the lot designated in the will had no improvements upon it, whereas lot 3 in square 406 was improved (the lot devised being described in the clause quoted as an improved lot). He also offered to prove, as going to show the proper reading of the clause as understood by those directly interested, that since the will was admitted to probate, the widow who had a life-estate in one-third of all the property had drawn but one-third of the rents, issue and profits of lot 3 in square 406, and that the guardian of Henry Walker had drawn the other two-tbirds, and that all the beneficiaries of the will had acquiesced in this. Held, inadmissible. The court said: “The difficulty in these cases arises from

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