Lee v. Shivers , 70 Ala. 288 ( 1881 )

SOMERVILLE, J.

This is a statutory action of ejectment, brought by the appellant against the appellee, for the recovery of land. The plaintiff claimed title under the will of her grandfather, David Lee. The material question presented for consideration is the construction of certain clauses of this instrument bearing on the title of the property in suit.

The testator, by the fourth item of his will, devises these lands to his son, Richard H. Lee, “ to have and to hold the said, described lands to him, the said R. IT. Lee, and to his heirs and assigns forever, together with all the appurtenances thereunto belonging.”

The tenth item of the will is in the following language: “ It is my will and desire that, if my sons, or either of them, named in this will, should die without children, or a child ; or if they, or either of them, should die leaning child/ren, or a child, and such children or child shoidd die without a child or children, then, and in that event, the real estate and the slaves given to my said sons by this will, or such of them as may die without children or a child, or having died leaving children or a child, and such children or child shall die without a child or children, shall go to the surviving brothers of said sons, or their children.”

The testator had three other sons, who are devisees under his will, besides Richard Ií. Lee. The plaintiff in ejectment, Mary Ella Lee, was the only child of her father, the said Richard II. Lee, who was deceased at the time this suit was instituted.

We are to consider whether the appellant, upon the death of her father, acquired any interest in these lands, under a proper construction of this will.

The principle is not to be denied, that extrinsic facts may be introduced in evidence, in many cases, and be made ancillary to the correct interpretation of the testator’s words, in like manner as can be done in the construction of contracts, so as the better to elucidate the intention of the author of the instrument. To this end, proof may frequently be made of all the surrounding circumstances which can legitimately throw light upon the ascertainment of such intention.—1 Greenl. Ev. §§ 287-8; 1 Jarman on Wills, 5th ed. Bigelow, pp. 429-30.

But the usual rule excludes the allowance of such evidence for the purpose of controlling or varying the terms of the will, except to explain a latent ambiguity, or to rebut a resulting trust.—Avery v. Chappell (6 Conn. 270), 16 Amer. Dec. 53; Mann v. Mann, 1 John. Ch. 231; Breckinridge v. Duncan (2 A. K. Marshall, 50), 12 Amer. Dec. 359; Jackson v. Sill (11 John. 201), 6 Amer. Dec. 363. And there are respectable authorities for the admission of parol evidence to explain patent ambiguities, or such as appear on the face of the will itself.;—1 Jarman on Wills (5th ed. Big.), 430, note (a).

What the correct rule in this regard may be, it is not necessary here to decide. But we take it as indisputable law, that if the words of a will, in which the testator has sought to express his intention, are clear, and have a definite meaning, however awkwardly expressed, no extrinsic evidence is admissible to show a different meaning, contradictory of that imported by the testamentary language. Parol evidence, in other words, is never admissible, to obtain a construction of a will which is not warranted by, or will defeat, its express terms.—1 Greenl. Ev. § 290 ; 1 Story’s Eq. Jur. § 181; Avery v. Chappell, 6 Amer. Dec. 53. And the importance of this rule “ demands an inflexible adherence to it, even where the consequence is the partial or total failure of the testator’s intended disposition.” —1 Jarman on Wills (Big. 5th ed.), 409-10.

It is clear that item four of David Lee’s will, taken alone, would create a fee-simple estate in Richard FI. Lee; for the devise is to him, “his heirs and assigns, forever.” The effect of item ten is, simply, to convert this interest into a qualified, or determinable fee, with a limitation over by way of executory devise. Such estates may continue forever, but are liable to be determined upon the happening of the contingency circumscribing their continuance or extent.—4 Kent’s Com. p. 9; Walker’s Amer. Law, p. 324, § 138. In the present case, no event lias happened, by reason of which it can be claimed that the remainder limited over has taken effect. The two contingencies specified were as follows: First, that the devisee should die without children, or child; secondly, that should he die leaving a child, such child should also die without child or children. It is plain that neither of these contengencies has yet transpired ; for Richard PI. Lee died leaving a child, and she still survives. Whether the executory devise, which is here sought to be cre.ated in favor of the surviving brothers of the first devisee, is void for remoteness, is a question not before us for our determination. It is sufficient to say, that the will creates no interest in the plaintiff, who claims under its terms as a child of Richard II. Lee.

Such being the case, the plaintiff was not entitled to recover in any event, and there wras no reversible error in any of the rulings of the court, either on the evidence excluded, or in reference to the charges given, or those refused.

Affirmed.