Wright v. Wright , 122 Iowa 549 ( 1904 )

McClaiN, J.

At the time of the execution of the will in question, testator was the owner of three parcels of real estate described in the will, to wit, the northwest quarter of the southwest quarter of section 22, the south half of the southwest quarter of the northwest quarter of the same section, and a six-aere tract in section 21, all in township 82 north, range 14 west of the fifth P. 1VL The provision of the will, the construction of which is desired, is as follows: “I give and bequeath to my son Ansel K. Wright the following described premises to wit: The undivided West Plalf of the Northwest Quarter of tlie Southwest, and the South Half of the Southwest Quarter of the Northwest quarter of Section twenty-two (22) Township eighty-two (82) North Pange fourteen (14) West 5th P. M. and all of the following described property to wit: Commencing four rods North of the quarter stake between Sections twenty-one and twenty-twó (21 and ,22) of Township eighty-two Eange fourteen, Thence West sixteen (16) rods, thence South sixty-five (65) rods, tbence East sixteen. (16) rods, thence North sixty-five (65) rods to the place of beginning, containing six and one-half acres more or less, all the above premises being situated in the County of Tama and State of Iowa.” By other provisions of the will the plaintiffs in the action are devisees of “all the balance of my real estate, to be equally divided between them.”

The contention of plaintiffs is that, in addition to the six-acre tract, as to which there is no controversy, Ansel K. Wright was to take only an undivided half of the west half 1. devise of real estate: construction. of the northwest quarter of the southwest quarter, and an undivided half of the south half of the southwest quarter of the northwest quarter; that is (counting the undivided half of the west half of the forty acre tract as ten acres), he was to have twenty-six acres in all, or, if the word “undivided,” preceding the description of the west half of the forty acre tract, and which they seek to have construed as meaning the undivided half of the west half of that tract, does not apply to the twenty-acre tract, the description of which immediately follows, then they still contend that he was only to have an undivided half of the west half of the forty-acre tract, which, being computed at ten acres, as before, would give him thirty-six acres in all; while the contention for defendants in that the word “undivided,” preceding the description “West Half of the Norf« west Quarter of the Southwest Quarter,” is without meaning as limiting the devise to an undivided part only of the west half of the forty-acre tract, and that the entire west half of that tract passed to them by the devise, so that they are entitled, in all, to forty-six acres. Without any other guide to the intention of the testator than that furnished by the language of the will, we are unable to see how we would be justified in limiting the devise to any share in the west half of the forty-acre tract less than the entire and undivided interest therein. The will simply describes the west half of the forty-acre tract as “undivided.” It is true that such use of the term “undivided” is unusual, but it may Have been used by tbe testator as indicating tbe fact that the forty-acre tract, of which the west half was being devised, was in fact not yet divided or set off from the east half, which was to go to the plaintiffs. But with whatever conjectural meaning the word may have been used, it certainly does not in itself indicate an intention that only an undivided half of the west half was being devised. There is. nothing in the will to suggest an undivided half rather than an undivided-quarter, or any other undivided interest. If the word were to be given any such significance as contended for by plaintiffs, then the will would be indefinite with reference to this tract, for it would not indicate what undivided interest was to pass. But there is no occasion for giving the word any such meaning. To treat it as an adjective qualifying the words “West Half” does not create any ambiguity nor uncertainty. The will is perfectly intelligible, although the use of the word is without effect as to the meaning.

Evidence was offered on the trial, and received over objection, which it was claimed by plaintiffs tended to show that the real intention of the testator was to give to Ansel 2. variance: evidence. K. Wright only an undivided half interest in -¿he weg.|. kaif forty.acre tract, and also in the twenty-acre tract, in addition to the six-acre tract, as to. which there is no controversy. The testimony thus relied on was that of one Smith, who in 1891 drew for testator the will in question. Without stopping for a discussion as to whether h'is testimony was competent, it is enough to say that it was wholly insufficient to give to the will any different meaning than that embodied in the language used. He says he drew the will from testator’s dictation, and thinks that Ansel K. Wright was to have half of the land, and got the impression that he was to have twenty-six acres, 'but he is unable to give even the purport of any conversation with testator on which such an impression could have been based. Whether his impression was derived from conversation with testator, or - from his own construction of the language of the will, he is entirely unable to say; and he is unable, as he admits, to testify that he omitted any word dictated by the testator, or that any other language was used by the testator in expressing his intention than that written. Iiis impression is unquestionably to some extent erroneous, for under no construction does the will give half of the land described to Ansel K. Wright. We certainly would not be justified in varying the language of the will bn the strength of the indefinite and uncertain recollections of this witness.

Appellants cite cases in this court in which words have been supplied, or changes of description have been made, in order to carry out the evident intention of the testator, but those eases need not be discussed. Until we can find fr^m the language of the will, or from extraneous circumstanses some different intention than that expressed by the language itself, we certainly would' not be justified in giving an. interpretation different from that plainly indicated by the language used. The will is/ in fact, not ambiguous, but plain and certain, in its provisions; and the decree of the lower court, by which defendants taking the entire devise to Ansel K. Wright are given the entire west half- of the forty-acre tract, the entire twenty-acre tract, and the six-acre tract, ÍS AFFIRMED.