tment for two undivided thirds of a lot of land in Washington city, known on the plats and ground-plan of the city as lot No. 3, square 406, fronting 50 feet on E street north. Plea, not guilty. The plaintiff, John Patch, now plaintiff in error, claims the lot under Henry Walker, devisee of James Walker. The latter died seized of the lot in 1832, and by his last will, dated in September of that year, devised to Henry Walker as follows, to-wit: 'I bequeath and give to my dearly-deloved brother, Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected and appurtenances thereto belonging.' The testator did not own lot No. 6, in square 403, but did own lot No. 3, in square 406, the lot in controversy; and the question in the cause is whether the parol evidence offered, and by the court provisionally received, was sufficient to control the description of the lot so as to make the will apply to lot No. 3, in square 406. The judge at the trial held that it was not, and instructed the jury to find a verdict for the defendant. The court, in general term, sustained this ruling, and rendered judgment for the defendant, and that judgment is brought here by writ of error for review upon the bill of exceptions taken at the trial.
The testator at the time of making his will, and at his death, had living a wife, Ann Sophia, an infant son, James, a mother, Dorcas Walker, three brothers, John, Lewis, and Henry, (the latter being only eleven years old,) and three sisters, Margaret Peck, Louisa Ballard, and Sarah McCallion, and no other near relations, and all of these are provided for in his will if the change of description of the lot given to Henry is admissible; otherwise Henry is unprovided for, except in a residuary bequest of personal property in connection with others. The following are the material clauses of the will: After expressing the ordinary wishes and hopes with regard to the disposal of his body and a future life, the testator adds: 'And touching wordly estate, wherewith it has pleased Almighty God to bless me in this life, I give, devise, and dispose of the same in the following manner and form.' He then gives and bequeaths to his wife one-third of all his personal estate, forever, and the use of one-third of his real estate for life, remainder to his infant son, James. He then proceeds: 'I bequeath and give to my dear and affectionate mother, Dorcas Walker, forever, all of lot numbered seven, in square one hundred and six, as laid down on the plan of the city of Washington, together with all the improvements thereon erected and appurtenances thereto belonging. I bequeath and give to my dearly-beloved brother John Walker, forever, all of lot numbered six, in square one hundred and six, with the two-story brick house, back building, and all appurtenances thereto belonging. I bequeath and give to my dearly-beloved brother, Lewis Walker, forever, lots twenty-three, twenty-four, and twenty-five, in square numbered one hundred and six, together with a two-story brick building, with a basement story back building, and all appurtenances thereto belonging and erected on one or more of said lots. I bequeath and give to my dearly-beloved brother Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected and appurtenances thereto belonging.'
Then, after giving to his three sisters and his infant son, respectively, other specific lots, with houses thereon, he proceeds as follows: 'I also bequeath and give to my infant son, James Walker, forever, the balance of my real estate believed to be and to consist in lots numbered six, eight, and nine, with a house, part brick and part frame, erected on one of said lots, in square one hundred and sixteen; lots thirty-one, thirty-two, and thrity-three, in square numbered one hundred and forty, and a slaughter-house erected on one of said lots; lots numbered eight and eleven, in square numbered two hundred and fifty; and lot numbered twenty-eight, in square numbered one hundred and seven; and, further, I bequeath and give to my infant son, James Walker, one thousand dollars, to be paid out of my personal estate, and applied at the discretion of his guardian hereinafter appointed, for the education of my son, James Walker.' He then adds: 'The balance of my personal estate, whatever it may be, I desire shall be equally divided between my mother, Dorcas Walker, my sister Sarah McCallion, and my brothers, Jno., Lewis, and Henry Walker.' It is clear from the will itself: (1) That the testator intended to dispose of all his estate. (2) That he believed he had disposed of it all in the clauses prior to the residuary clause, except the specific lots thereby given to his son. (3) That when he gave to his brother Henry lot number 6, in square 403, he believed he was giving him one of his own lots. On general principles he would not have given him a lot which he did not own; and he expressly says: 'Touching worldly estate, wherewith it has pleased Almighty God to bless me in this life, I give, devise, and dispose of the same in the following manner.' (4) That he intended to give a lot with improvements thereon erected.
Now, the parol evidence discloses the fact that there was an evident misdescription of the lot intended to be divided. It shows First, as before stated, that the testator at the time of making his will, and at the time of his death, did not, and never did, own lot 6, in square 403, but did own lot 3, in square 406; secondly, that the former lot had no improvements on it at all, and was located on Ninth street, between I and K streets, while the latter, which he did own, was located on E street, between Eighth and Ninth streets, and had a dwelling-house on it, and was occupied by the testator's tenants,-a circumstance which precludes the idea that he could have overlooked it. It seems to us that this evidence, taken in connection with the whole tenor of the will, amounts to demonstration as to which lot was in the testator's mind. It raises a latent ambiguity. The question is one of identification between two lots, to determine which was in the testator's mind,-whether lot 3, square 406, which he owned, and which had improvements erected thereon, and thus corresponded with the implications of the will, and with part of the description of the lot, and rendered the devise effective; or lot 6, square 403, which he did not own, which had no improvements thereon, and which rendered the devise ineffective.
It is to be borne in mind that all the other property of the testator except this one house and lot was disposed of to his other devisees,-at least, that was his belief as expressed in his will, and there is no evidence to the contrary; while this lot (though he believed he had disposed of it) was not disposed of at all, unless it was devised to his brother Henry, by the clause in question. In view of all this, and placing ourselves in the situation of the testator at the time of making his will, can we entertain the slightest doubt that he made an error of description, so far as the numbers in question are concerned, when he wrote or dictated the clause under consideration? What he meant to devise was a lot that he owned; a lot with improvements on it; a lot that he did not specifically devise to any other of his devisees. Did such a lot exist? If so, what lot was it? We know that such a lot did exist, and only one such lot in the world, and that this lot was the lot in question in this cause, namely, lot number 3, in square 406. Then is it not most clear that the words of the will, 'lot numbered six, in square four hundred and three,' contained a false description. The testator, evidently by mistake, put 'three' for 'six,' and 'six' for 'three,' a sort of misspeech to which the human mind is perversely addicted. It is done every day even by painstaking people. Dr. Johnson, in the preface to his Dictionary, well says: 'Sudden fits of inadvertence will surprise vigilance, slight avocations will seduce attention, and casual eclipses of the mind will darken learning.' Not to allow the correction of such evident slips of attention, when there is evidence by which to correct it, would be to abrogate the old maxim of the law, 'falsa demonstratio non nocet.'
It is undoubtedly the general rule that the maxim just quoted is confined in its application to cases where there is sufficient in the will to identify the subject intended to be devised independently of the false description, so that the devise would be effectual without it. But why should it not apply in every case where the extrinsic facts disclosed make it a matter of demonstrative certainty that an error has crept into the description, and what that error is? Of course the contents of the will, read in the light of the surrounding circumstances, must lead up to and demand such correction to be made. It is settled doctrine that as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence. Such an ambiguity may arise upon a will, either when it names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or, secondly, it may arise when the will contains a misdescription of the object or subject; as where there is no such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator. The first kind of ambiguity, where there are two persons or things equally answering the description, may be removed by any evidence that will have that effect, either circumstances or declarations of the testator. 1 Jarm. Wills, 370; Hawk. 9, 10. Where it consists of a misdescription, as before stated, if the misdescription can be struck out and enough remain in the will to identify the person or thing, the court will deal with it in that way, or, if it is an obvious mistake, will read it as if corrected. The ambiguity in the latter case consists in the repugnancy between the manifest intent of the will and the misdescription of the donee or the subject of the gift. In such a case evidence is always admissible to show the condition of the testator's family and estate, and the circumstances by which he was surrounded at the time of making his will. 1 Jarm. Wills, 364, 365; 1 Roper, Leg. (4th Ed.) 297; 2 Williams, Ex'rs, 988, 1032. Mr. Williams (afterwards Mr. Justice WILLIAMS) says: 'Where the name or description of a legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake shall not disappoint the bequest. The error may be rectified * * * (1) by the context of the will; (2) to a certain extent by parol evidence. * * * A court may inquire into every material fact relating to the person who claims to be interested under the will, and to the circumstances of the testator, and of his family or affairs, for the purpose of enabling the court to identify the person intended by the testator.' Page 989. Again, he says on page 1032: 'Mistakes in the description of legacies, like those in the description of legatees, may be rectified by reference to the terms of the gift and evidence of extrinsic circumstances taken together. The error of the testator, says Swinburne, of the legacy, so that the body or substance of the thing bequeathed is certain; as, for instance, the testator bequeaths his horse Criple when the name of the horse was Tulip, this mistake shall not make the legacy void, for the legatory may have the horse by the last denomination; for the testator's meaning was certain that he should have the horse. If, therefore, he hath the thing devised, it is not material if he hath it by the right or the wrong name.' See, also, Roper, Leg. 297.
The rule is very distinctly laid down by Sir James Wigram, who says: 'A description, though false in part, may, with reference to extrinsic circumstances, be absolutely certain, or at least sufficiently so to enable a court to identify the subject intended; as where a false description is superadded to one which by itself would have been correct. Thus, if a testator devise his black horse, having only a white one, or devise his freehold houses, having only leasehold houses, the white horse in the one case and the leasehold houses in the other would clearly pass. In these cases the substance of the subject intended is certain, and if there is but one such substance, the superadded description, though false, introduces no ambiguity, and as by the supposition the rejected words are inapplicable to any subject, the court does not alter, vary, or add to the effect of the will by rejecting them.' Wig. Wills, 53. Of course when the author speaks of the rejected words as being 'inapplicable to any subject,' he means inapplicable because the subject is not in existence or does not belong to the testator.
The case of the Roman Catholic Orphan Asylum v. Emmons, 3 Bradf.Surr. 144, which arose before the surrogate of New York, well illustrates the application of the rule. There a testatrix bequeathed her shares of the Mechanics' Bank stock to the orphan asylum. She had no bank stock except 10 shares of the City Bank. Surrogate BRADFORD, in a learned opinion, held that the word 'mechanics' must be rejectes as inapplicable to any property ever owned by the testatrix, and the rejection of this word left the bequest to operate upon any bank stock possessed by her, and so to pass the City Bank shares. See, also, a learned note of Chief Justice REDFIELD, 10 Am. Law Reg. (N. S.) 93, to the case of Kurtz v. Hibner, in which he strongly disapproves the decision in that case. [1] Chief Justice MARSHALL, in Finlay v. King's Lessee, 3 Pet. 377, lays down the general rule that underlies all others. 'The intent of the testator,' says he, 'is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail, although in giving effect to it some words should be rejected or so restrained in their application as materially to change the literal meaning of the particular sentence.'
But it is not our intention to review or classify the decisions. They are legion. The intrinsic difficulty of stating the rule as applicable to all cases is such as to make it presumptuous in any one to attempt to chain it down and fix it in the form of a verbal definition. Sufficient appears from the authorities already quoted to show that while no bill in equity lies to reform a will, because its author is dead, and his intent can only be known from the language he has used, when applied to the circumstances by which he was surrounded, yet a careful study of that language and of those circumstances will generally disclose any inadvertency or mistake in the description of persons or things, and the manner in which it should be corrected, without adding anything to the testator's language, and thereby making a different will from that left by him. We will only quote further an observation of Chief Justice THOMPSON, of New York, in Jackson v. Sill, 11 Johns, 201, which is very pertinent to the present discussion. In that case the court rejected the extrinsic evidence offered to remove a supposed latent ambiguity in a will for the very good reason that it appeared, on examination, that no ambiguity existed. But the chief justice justly said: 'It is undoubtedly a correct rule in the construction of wills to look at the whole will for the purpose of ascertaining the intention of the testator in any particular part, where such part is ambiguous. But where the intention is clear and certain, and no repugnancy appears between the different parts of the will, no such aid is necessary or proper.' Of course, in the case of a latent ambiguity, such repugnancy can only appear by means of the evidence which discloses the ambiguity.
In view of the principles announced in these authorities, the case under consideration does not require any enlargement of the rule ordinarily laid down, namely, the rule which requires in the will itself sufficient to indentify the subject of the gift, after striking out the false description. The will on its face, taking it all together, with the clear implications of the context, and without the misleading words 'six' and 'three,' devises to the testator's brother Henry, in substance as follows: 'I bequeath and give to my dearly beloved brother Henry Walker, forever, lot number --, in square four hundred and-, together with the improvements thereon erected and appurtenances thereto belonging, being a lot which belongs to me, and not specifically devised to any other person in this my will.' In view of what has already been said there cannot be a doubt of the identity of the lot thus devised. It is identified by its ownership, by its having improvements on it, by its being in a square the number of which commenced with four hundred, and by its being the only lot belonging to the testator which he did not otherwise dispose of. By merely striking out the words 'six' and 'three' from the description in the will as not applicable (unless interchanged) to any lot which the testator owned; or, instead of striking them out, supposing them to have been blurred by accident so as to be illegible,-the residue of the description, in view of the context, so exactly applies to the lot in question that we have no hesitation in saying that it was lawfully devised to Henry Walker.
The judgment is reversed, and the cause remanded, with directions to award a new trial.
Notes edit
- ↑ Kurtz v. Hibner is reported in 55 Ill. 514.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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