A latent ambiguity in a will, which may be removed by extrinsic
evidence, may arise (1) 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 (2) 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.
When a careful study of the testator's language, applied to the
circumstances by which he was surrounded, discloses an inadvertency
or mistake in a description of persons or things in a will, which
can be corrected without
Page 117 U. S. 211
adding to the testator's language and thus making a different
will from that left by him, the correction should be made.
A made a will in which, after saying, "and touching [my] worldly
estate. . . . I give, devise and dispose of the same in the
following manner," he devised certain specific lots with the
buildings thereon, respectively, to each of his near relations,
and, amongst others, to his brother H a lot described as "lot
numbered 6 in square 403, together with the improvements thereon
erected." He then devised to his infant son as follows: "the
balance of my real estate, believed to be and to consist in lots
numbered six, eight and nine &c.," describing a number of lots,
but not describing lot No. 3, in square 406, hereafter
mentioned:
Held:
(1) That the testator intended to dispose of all his real
estate, and thought he had done so; (2) that in the devise to H, he
believed he was giving him one of his own lots; (3) that evidence
might properly be received to show that the testator did not, and
never did, own lot No. 6, in square 403, which had no improvements
thereon; but did own lot No. 3, in square 406, which had a house
thereon, occupied by his tenants, and that this raised a latent
ambiguity, and that this evidence, taken in connection with the
context of the will, was sufficient to show that there was an error
in the description, and that the lot really devised was lot No. 3,
in square 406.
Ejectment. The question at issue was the construction of a will,
the principal parts of which are set forth in the opinion of the
Court. The case was first argued November 12, 1885. The judgment
below was affirmed by a divided Court November 26, 1885. On the
14th December, this judgment was set aside and a reargument was
ordered, which was made January 13, 14, 1886, by the same
counsel.
Page 117 U. S. 212
MR. JUSTICE BRADLEY delivered the opinion of the Court.
Ejectment 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
Page 117 U. S. 213
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 beloved 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 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 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
Page 117 U. S. 214
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
thirty-three, in square numbered one hundred and forty, and a
slaughterhouse 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, John, Lewis, and Henry
Walker. "
Page 117 U. S. 215
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
Page 117 U. S. 216
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 mis-speech 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.
Page 117 U. S. 217
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 Jarman on Wills, 370; Hawkins on Wills 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 Jarman on Wills 364, 365; 1 Roper on
Legacies, 4th ed., 297; 2 Williams on Executors 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."
Pp. 988-989. Again, he says on page 1032:
"Mistakes in the description of legacies, like those in the
description of
Page 117 U. S. 218
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 on Legacies 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."
Wigram on Extrinsic Evidence 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 Bradford 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 ten shares of the City Bank.
Surrogate Bradford, in a learned opinion, held that the word
"mechanics" must be rejected as inapplicable
Page 117 U. S. 219
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, 55 Ill. 514, in
which he strongly disapproves the decision in that case.
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
anyone 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
Page 117 U. S. 220
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 identify 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.
MR. JUSTICE WOODS, with whom concurred MR. JUSTICE MATTHEWS, MR.
JUSTICE GRAY, and MR. JUSTICE BLATCHFORD, dissenting.
MR. JUSTICE MATTHEWS, MR. JUSTICE GRAY, MR. JUSTICE
BLATCHFORD,
Page 117 U. S. 221
and myself cannot concur in the judgment of the majority of the
Court.
The suit was an action of ejectment in which the will was
offered in evidence to prove the plaintiff's title. The property in
controversy was lot 3, in square 406, in the City of Washington.
The plaintiff claimed under a devise of lot 6, in square 403. The
devise was as follows:
"I bequeath to my dearly beloved brother Henry Walker forever
lot numbered six in square four hundred and three, together with
the improvements thereon erected and the appurtenances thereto
belonging."
The devise does not describe the property sued for. Extrinsic
evidence to aid the devise was offered by the plaintiff, who
insisted that it was admissible for the purpose of removing a
latent ambiguity.
Latent ambiguities are of two kinds: First, where the
description of the devisee or the property devised is clear upon
the face of the will, but it turns out that there are more than one
estate, or more than one person, to which the description applies;
and, second, where the devisee or the property devised is
imperfectly, or, in some respects, erroneously, described, so as to
leave it doubtful what person or property is meant.
It is clear that if there is any ambiguity in the devise under
consideration it belongs to the latter class. But there is no
ambiguity. The devise describes the premises as lot 6, in square
403. It is conceded that there is such a lot and square in the City
of Washington, and but one, and it is not open to question what
precise parcel of land this language of the devise points out. It
clearly, and without uncertainty, designates a lot on Ninth Street,
between I and K streets, well known on the map of the City of
Washington, whose metes and bounds and area are definitely fixed
and platted and recorded. The map referred to was approved by
President Washington in 1792, and recorded in 1794. Thousands of
copies of it have been engraved and printed. All conveyances of
real estate in the city made since it was put on record refer to
it; it is one of the muniments of title to all the public and
private real estate in the City of Washington, and
Page 117 U. S. 222
it is probably better known than any document on record in the
District of Columbia. The accuracy of the description of the lot
devised is therefore matter of common knowledge, of which the court
might even take judicial notice.
Nor is any ambiguity introduced into the description by the
words "with the improvements thereon erected and the appurtenances
thereto belonging," or by the testimony which was offered to prove
that at the date of the will and of the death of the testator the
lot described in the devise was unimproved. It is plain that the
words "improvements thereon erected" were a conveyancer's phrase of
the same nature as the words which immediately followed them,
namely, "and the appurtenances thereto belonging," and the whole
phrase is simply equivalent to the words "with the improvements and
appurtenances." The words "with the improvements thereon erected"
were not intended as a part of the description of the premises,
which had already been fully and accurately described, but were
used perhaps as a matter of habit or perhaps out of abundant but
unnecessary caution to include in the grant improvements that might
be put upon the premises between the date of the testator's will
and the date when it took effect -- namely at his death. The phrase
is one not commonly used to identify the premises, and was not so
used in this devise. There is persuasive evidence of this in the
will, for in eight other devises of realty, the testator
particularly describes the character of the improvements. Thus, in
the devise to his brother, John Walker, the improvements are
described as a "two-story brick house, back building;" in the
devise to Lewis Walker "as a two story brick building, with a
basement story back building;" in the devise to Margaret Peck of
four lots as "a two-story frame house, erected on lot 27;" in the
devise to Louisa Ballard, as a "three-story brick house;" in the
devise to Sarah McCallion, as a "frame house;" in the devise to
James Walker of two lots, as "two two-story brick houses;" and in
the residuary devise to James Walker of the testator's real estate,
as "a house, part brick and part frame," and "a slaughterhouse."
There is no proof that any of the other real estate mentioned in
the will was improved. There is, therefore,
Page 117 U. S. 223
no doubt about the identity of the lot described in the
devise.
But even if the words under discussion were used to carry the
idea that the property mentioned in the devise was improved, and it
turned out to be unimproved, these facts would not make the
description ambiguous or uncertain; for it is a settled rule of
construction that, if there be first a certain description of
premises, and afterwards another description in general terms, the
particular description controls the general. Thus, in
Goodtitle
v. Southern, 1 M. & S. 299, it was held that by a devise
of "all my farm called "Trouges farm," now in the occupation of
C.," the whole farm passed, though it was not all in C.'s
occupation.
See also Miller v. Travers, 8 Bing. 244;
Goodright v. Pears, 11 East. 58.
Another cognate rule, well settled in the law, is also
applicable here, and that is that where there is a sufficient
description of premises, a subsequent erroneous addition will not
vitiate the description, and we may reject a false demonstration.
Doe v. Galloway, 5 B. & Ad. 43;
Law v.
Hempstead, 10 Conn. 23;
Bass v. Mitchell, 22 Tex.
285;
Peck v. Mallams, 10 N.Y. 509, 532;
Abbott v.
Abbott, 53 Me. 360;
Doane v. Wilcutt, 16 Gray 368,
371;
Jones v. Robinson, 78 N.C. 396; 3 Washburn on Real
Property 629.
Upon these established rules, as well as upon the general sense
and practice of mankind, it is beyond controversy that a lot
described in the words used in the devise in question would pass
either by will or deed, though it should turn out that the lot was
unimproved. The description is as particular and precise as if the
metes and bounds, the area, and the street on which the lot was
situated, and every other particular of size and situation, had
been given. The identity of the lot is settled beyond question.
Upon the authorities cited, the description is not rendered
ambiguous or uncertain by the use of the general words "with the
improvements erected thereon," even though there be no
improvements. It follows that the description of the premises in
controversy contained in the devise was good and sufficient, and,
upon well settled rules of law, free from doubt or ambiguity.
Page 117 U. S. 224
It is therefore beyond controversy that if the testator had been
the owner of lot numbered 6, in square four hundred and three, it
would have passed by the devise, and the sufficiency of the
description could not have been challenged. The only ground
therefore upon which the plaintiff can base his contention that
there is a latent ambiguity in the devise is his offer to prove
that the testator did not own the lot described in the devise, but
did own another, which he did not dispose of by his will. This does
not tend to show a latent ambiguity. It does not tend to impugn the
accuracy of the description contained in the devise. It only tends
to show a mistake on the part of the testator in drafting his will.
This cannot be cured by extrinsic evidence. For, as Mr. Jarman
says,
"As the law requires wills both of real and personal estate
(with an inconsiderable exception) to be in writing, it cannot,
consistently with this doctrine, permit parol evidence to be
adduced either to contradict, add to, or explain the contents of
such will, and the principle of this rule evidently demands an
inflexible adherence to it, even where the consequence is a partial
or total failure of the testator's intended disposition; for it
would have been of little avail to require that a will
ab
origine should be in writing, or to fence a testator around
with a guard of attesting witnesses if, when the written instrument
failed to make a full and explicit disclosure of his scheme of
disposition, its deficiencies might be supplied or its inaccuracies
corrected from extrinsic sources."
1 Jarman on Wills, 4th and 5th eds. 409.
If there is any proposition settled in the law of wills, it is
that extrinsic evidence is inadmissible to show the intention of
the testator, unless it be necessary to explain a latent ambiguity,
and a mere mistake is not a latent ambiguity. Where there is no
latent ambiguity, there no intrinsic evidence can be received. The
following cases support this proposition.
In
Miller v. Travers, 8 Bing. 244, Tindal, Chief
Justice of the common pleas, and Lyndhurst, Chief Varon of the
Exchequer, were called in to assist Brougham, Lord Chancellor.
Their joint opinion was delivered by Tindal, C.J. The case was
this: the testator devised all his freehold and real estate in the
County of Limerick and City of Limerick.
Page 117 U. S. 225
The testator had no real estate in the County of Limerick, but
his real estate consisted of lands in the County of Clare, which
was not mentioned in the will, and a small estate in the City of
Limerick, inadequate to meet the charges in the will. The devisee
offered to show by parol evidence that the estates in the County of
Clare were inserted in the devise to him in the first draft of the
will, which was sent to a conveyancer to make certain alterations
not affecting those estates; that by mistake, he erased the words
"County of Clare," and that the testator, after keeping the will by
him for some time, executed it without adverting to the alteration
as to that county. The case was considered on the assumption that
the extrinsic evidence, if admitted, would show that the County of
Clare was omitted by mistake, and that the land in that county was
intended to be included in the devise; but the evidence was held
inadmissible to show that the testator intended to devise property
which had been omitted by mistake.
So, in
Box v. Barrett, L.R. 3 Eq. 244, 249, Lord
Romilly, Master of the Rolls, said:
"Because the testator has made a mistake you cannot afterwards
remodel the will, and make it that which you suppose he intended
and as he would have drawn it if he had known the incorrectness of
his supposition."
In
Jackson v. Sill, 11 Johns. 201, which was an action
of ejectment, the defendant claimed under the following devise to
the testator's wife: "I also give to my said beloved wife the farm
which I now occupy, together with the whole crops," etc. In a
subsequent part of his will, the testator mentioned said premises
as his lands. It turned out that the premises in controversy were
at the time the will was made, and at the death of the testator, in
the possession of one Salisbury under a lease for seven years. The
plaintiff offered testimony to show that the testator intended to
devise the premises as a part of the farm which he occupied
himself, and of which he died possessed. Chief Justice Thompson,
afterwards a Justice of this Court, in delivering judgment,
said:
"I think it unnecessary to notice particularly the evidence
offered, for it is obvious that if it was competent, especially
that of Mr. Van Vechten, it would
Page 117 U. S. 226
have shown that the premises were intended by the testator to be
devised to the defendant Sill. The will was drawn, however, by Mr.
Van Vechten under a misapprehension of facts, and under a belief
that the testator was in the actual possession of the premises. It
is therefore a clear case of mistake, as I apprehend, and under
this belief I have industriously searched for some principle that
would bear me out in letting in the evidence offered, but I have
searched in vain, and am satisfied the testimony cannot be admitted
in a court of law without violating the wise and salutary
provisions of the statute of wills, and breaking down what have
been considered the great landmarks of the law on this
subject."
In
Turker v. Seaman's Aid Society, 7 Met. 188, the
testator gave a legacy to the "Seaman's Aid Society, in the City of
Boston," which was the correct name of the society. The legacy was
claimed, however, by another society called the "Seaman's Friend
Society." Chief Justice Shaw, in stating the case, said:
"It is also, we think, well proved by the circumstances which
preceded and attended the execution of the will, as shown by
extrinsic evidence, that it was the intention of the testator to
make the bequest in question to the Seaman's Friend Society, and at
the time of the execution of the will he believed he had done so; .
. . that the testator was led into this mistake by erroneous
information honestly given to him by Mr. Baker, who drew the will;
. . . that the testator acted on this erroneous information, and
made the bequest to the Seaman's Aid Society by their precise name
and designation."
The court therefore held that there was simply a mistake, and no
latent ambiguity and that extrinsic evidence was inadmissible.
It is unnecessary to extend this opinion by other extracts from
the adjudged cases. The quotations we have made are from masters of
the law. The following additional authorities will be found to
sustain the proposition we have stated:
Cheyney's Case, 5
Rep. 68;
Doe v. Oxenden, 3 Taunt. 147;
Smith v.
Maitland, 1 Ves.Jr. 363;
Chambers v. Minchin, 4 Ves.
675, and note:
Doe v. Westlake, 4 B. & Ald. 57;
Newburgh v. Newburgh,
Page 117 U. S. 227
5 Madd. 364;
Clementson v. Gandy, 1 Keen. 309;
Brown v. Saltonstall, 3 Met. 423, 426;
Mann v.
Mann, 1 Johns.Ch. 231;
Yates v. Cole, 1 Jones, Eq.
110;
Walston's Lessee v. White, 5 Md. 297;
Cesar v.
Chew, 7 G. & J. 127;
Fitzpatrick v. Fitzpatrick,
36 Ia. 674;
Kurtz v. Hibner, 55 Ill. 514.
Our conclusion is therefore that, as the evidence offered and
rejected was for the purpose of explaining a latent ambiguity when
there was no ambiguity, either latent or patent, it was properly
rejected.
The opinion of the court in this case allows what seems to us to
be an unambiguous devise to be amended by striking out a sufficient
description of the premises devised, and the blank thus made to be
filled by ingenious conjectures based on extrinsic evidence. This
is in the face of the statute of frauds in force in the District of
Columbia, where the premises in controversy are situate. Fifty
years after the unequivocal devise in question, as written and
executed by the testator, had, as required by law, been placed upon
the records of the District for the information of subsequent
purchasers and encumbrancers, it is allowed to be erased, and, by
argument and inference, a new one substituted in its place. This is
not construing the will of the testator; it is making a will for
him.
The decision of the court subjects the title of real estate to
all the chances, the uncertainty, and the fraud attending the
admission of parol testimony, in order to give effect to what the
court thinks was the intention of the testator, but which he failed
to express in the manner required by law.