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Pocock v. Redinger.

the application of the rules governing the subject, the rules themselves being pretty plain. And first, it is to be observed that this is not a suit seeking the aid of words not written. At the same time however a court of law, though precluded from ascribing to the testator any intention not expressed in his will, admit their obligation to give effect to every intention which the will, properly expounded, contains. The answer therefore to the question above proposed — enjoined as well as sanctioned by the general principles abore mentioned — must be that any evidence is admissible which, in its nature and effect, merely explained what the testator has written; but no evidence can be admissible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written.

“The case of Walton v. White, 5 Md. 296, was a case of a devise of lands which were described as being 'on the south side of Beaver Dam Branch,' and the court says: “The question in expounding a will is not what the testator meant, as distinguished from what his words express, but simply what is the meaning of the words,' and they admitted evidence to show the true location of the branch. The principle is confirmed, almost in the same words, in the case of Hammond v. Hammond, 55 Md. 576. But indeed there is a perfect flood of cases, and multitudes were cited in the argument. We think however that the decision of the courts in the principal cases would not admit such tes. timony as is sought to be introduced here. Of citing cases there is no end, but it is to be observed that many of them are early cases before the statute, and are therefore not reliable. Such is the opinion of Redfield, Jarman and other text-book writers; and among those cited as being before the statute are the cases from Ambler and from Coke's reports. All these are therefore not safe guides, because unquestionably the statute was intended to prevent the lati. tude of evidence which had hitherto prevailed. On page 115 (margin) of Wigrain, it is said: “The principle (if any) upon which the excepted cases, taking them collectively, are founded, is by no means obvious;' and further down, on page 116, he says: How can the statute, which makes a writing indispensable, be satisfied, if the thing which is the subject of disposition, or the person who claims the benefit of it, is not described in that writing with certainty sufficient to enable the court, by the description in the writing, to determine their identity ?' In the case of Beaumont v. Fel, 2 P. W., the master of the rolls, although he admitted the parol evidence, said: 'If this had been a grant - nay, had it been a devise - of land, in equity, where the conscience of the heir may be affected,' in the language of the courts, 'if he shall insist upon the literal interpretation of a devise against the meaning well known to himself to have been intended by the testator.' Naturally under such circumstances a court of equity might be more inclined to consider the offer of such evidence than a court of law in a dry legal action like an ejectment, which is governed by technical rules. By the statute of Maryland of 1798, chapter 101, all devises of any land, etc., shall be in writing, signed by the party devising the same, or by some other person in his presence, and by his express direction, and attested and subscribed to in the presence of the testator by three or four credible witnesses, or else it shall be utterly void and of no effect. This clause is a literal transcript of the provision in the statute

Pocock v. Redinger.

of frauds and perjuries, 29 Charles II, chapter 3. Now what was the state of the law before this statute? In Wigram on Wills, page 5, author's edition, it is thus laid down: “It was holden before the statute that parol evidence was, in certain cases, admissible to determine the person or thing intended, where the description in the instrument was insufficient for that purpose; as in a devise to A. B., where there were two persons of the same name, or a devise of the manor of Dale, where the testator had two manors of that name, North Dale and South Dale, in which cases parol evidence of witnesses who spoke to the testator's intention was admissible to determine which of the two persons named respectively A. B., or which of the manors of Dale was intended by the testator. That is to say where the identity of the person or thing intended by the testator has been the only point in dispute, and the description in the will has been insufficient to determine it.' And further down he says: The courts have uniformly professed to be governed by the admitted principle that the judgment of a court in expounding a will should be merely declaratory of what is in the instrument. This was the general rule at common law before the statute, and if the statute has not strengthened its obligations, it certainly has not relaxed them,' and as to the effect of the statute, the author states that it, ' by requiring a bill to be in writing, precludes a court of law from ascribing to a testator any intention which his written will does not express, and in effect makes the writing the only legitimate evidence of the testator's intention. No will is within the statute but that which is in writing, which is as much as to say that all that is effectual to the purpose must be in writing, without it had been void by reason of the mistake both of the Christian and surname; but where is the distinction between a grant and a devise of land for the purpose under consideration?' This case was one where `Gertrade Yardley' was held entitled to a legacy which was given by the will to

Catherine Earnley.' Again on page 130 Wigram says: "The decisions then in the excepted cases must, it is conceived, be considered to a great extent as arbitrary, and not to be explained upon any determined principle. They appear to be decisions in which the general principle has been sacrificed to meet the hardship of particular cases.' One of the principal cases involving the admission of parol testimony to explain what the testator meant, is the celebrated case of Goblet v. Beechey, 3 Sim. 24. It is well known that the origin of Mr. Wigram’s book was in his criticisms on that case, where the master of the rolls allowed parol evidence to explain what was meant by a provision in the will. This ruling however was reversed by Lord Chancellor BROUGHAM. After the decision in Goblet v. Beechey, came the case of Miller v, Traverse, 8 Bing. In that case the testator devised in a particular way all his estates in the county of Limerick and the city of Limerick. It appeared that the testator possessed estates in the city of Limerick, but none in the county, but that he had large possessions in the county of

"lare, and the offer was made to prove, that in the original draft of his will. the devise had been of all his lands in the county of Clare and the city of Limerick, and that by a blunder of the scrivener, the county of Limerick haa been inserted for the county of Clare. This case was heard, on appeal, bu Lord LYNDHURST and Lord Chief Justice TINDAL, among other judges, and Pocock v. Redinger.

their opinions were delivered at great length and after mature examination, and it was there held unanimously by the judges that such evidence was inad. inissible. In 18 How. (see also 11 Whart.) in the case of Watkins v. Allen, this case of Miller v. Traverse is adopted by the Supreme Court of the United States as expressing the correct position on the subject. The testator in the present case does not say that his property was in the city of Washington, and it cannot be doubted that parol evidence to that extent would be admissible by way of identifying the property named by him in the will, but the argument is that we can go further than this and correct the numbers as given for square and lot.

"Now the applicable cases seem to be confined to instances of what Lord Bacon calls 'equivocation ’ in a will, recognizing the principle as laid down by him that parol evidence was admissible where the persons or things may be equally designated by the same description,' or where there is a description plain enough as to one part in the will and equivocal as to the other, the equivocal part may be rejected if enough remains to let us see what the testator really intended to express, or portions of the description may be rejected, provided there is something left certain, as if a man, on writing his will on the back of a deed, should say, 'I give the piece of land conveyed to me by the within deed containing one hundred acres, lying in the county of Dale,' etc., he may have number of acres wrong, he may have the county wrong, and he may have the position wrong, and the name may be incorrect, and yet such a devise may be sustained, because a sufficient description of the property intended is evinced by his declaration that it is the property conveyed by the deed that is pointed out in the will — in other words, one thing may be incorrect and be corrected by another, if there is any thing to correct it by. In the case of Wilkins v. Allen, 18 How. 285, the whole matter is decided on the strength of this English decision.

"Now applying these principles here, what can we do with the devise of this lot? The will says, “lot 6, in square 403,' and it is said that ought to be read lot 3 in square 406. The first thing to do then is' to strike out the number of the lot and then strike out the number of the square. What then remains ? Nothing on earth but these 'improvements.' It is manifest that this will was not drawn by a lawyer; it jumbles improvements' and appartenances together, and leaves out words of limitation, and makes other blunders all the way through, and to admit parol testi. mony to give effect to the blunders of this man is to do the very thing which the statute was designed to prevent. The recent important cases seem to be within the principle I have just enunciated. For instance, a New Hampshire case, where the property was described wrongly, but was identified as the piece I bought of A.;' a case reported in 2 Washington's Reports, where `a lot on Fourth street in the occupation of A. and B.,' was held to pass a lot op Third street in the occupation of the persons named; a case in Indiana, where the north-east quarter of a township was devised and the north-west quarter was held to pass, the rest of the description being there sufficient; the case in 20 Missouri, on page 239, where the sections devised were right, but the town. ship wrong, and the property was identified in the will by its accessibility to Pocock v. Redinger.

to the 'Big spring;' the case of Fitzpatrick v. Fitzpatrick, in 36 Iowa, where the testatrix devised the west half of the north-east quarter, which she did not own, instead of the east half of the south-west quarter, which was her property, and where the plaintiff offered proof that a similar mistake to that insisted on in the case of Miiler v. Traverse bad occurred, and to prove by the scrivener that the description originally given to him was the correct one, but the offer of parol proof was rejected. In the case of Wetheree's Lessee v. Bas. cooille, the circumstances were quite touching; a settler in the far west, killed by Indians, while dying had at the door of his cabin dictated his will to a neighbor; it happened possibly through want of familiarity with the subject, that the scrivener incorrectly recited the instructions of the testator, and this fact was so evident that the heirs for many years had held the property among themselves according to the verbal directions of the testator, and against the written devises in the will. When however a claim was made under the language of the will, the Supreme Court held that parol evidence of what the testator directed the scrivener to write was inadmissible and that the devises, as expressed in the will, were conclusive upon the rights of the parties. It results in the language of the court in the case of Jackson v. Van Vachten, 11 Johns. 201, that ‘in cases of this kind, where there is no sufficient description in the will, independent of that which is false, the devise fails for uncertainty. It would be impossible for counsel ever to advise with confidence as to a title derived under a will, if as in the present instance, after the expiration of nearly fifty years, it is admissible by parol evidence to prove that a devise of property distinctly described in the will was in fact a devise of another portion not named in the will and differing in location and in all other points of description, and if under the sanction of this statute of frauds such evidence is to be admitted, we may well, in the language of an English judge, say that its title should be changed and that it should be called 'an act for the promotion of fraud and the encouragement of perjuries.'” The chief justice dissented.

VOL LVIII – 11

CASES

IN THE

SUPREME COURT

OF

MISSOURI,

CITY OF ST. LOUIS v. St. Louis RAILROAD COMPANY.

(89 Mo. 41.) Constitutional law — municipal ordinance -regulation of railroado. A city ordinance requiring street railway companies to report quarterly tho

number of passengers carried is valid.

MHE opinion states the case. The plaintiff had judgment below.

Smith P. Galt, for appellant.
Leverett Bell, for respondent.

Ray, J. The defendant was prosecuted and fined $500 before a police justice of the city of St. Louis for refusing to make to the city register the report required by section 11 of article 4, of chapter 31 of the revised ordinances of said city, approved March 29, 1881, which section is as follows:

“Section 11. It shall be the duty of each and all of the street · railroad companies in the city of St. Louis to report under oath to the city register, between the first and fifteenth day of the months. of July, October, January and April of each year, by the president, secretary or superintendent, the number of trips made and passengers carried over the road, of which the person making the report

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