Schlottman v. Hoffman , 73 Miss. 188 ( 1895 )

Cooper, C. J.,

delivered the opinion of the court.

The appellees, Jerry and Rufus Hoffman, exhibited their bill in this cause against John Schlottman, executor of the will of their mother, Martha Hoffman, and against Ella Hoffman, the devisee of the general estate of the said Martha, to enforce certain legacies given to them by the testatrix, and which complainants aver are charged by the will upon the property devised to said Ella.

By her will, dated December 18, 1885, Mrs. Hoffman devised and bequeathed her whole estate to her daughter, Ella, for life, with remainder over to such of the children of her daughter, Emma Schlottman, as should survive Ella, and if none of the such children should survive the said Ella, then the remainder was given to the said Emma Schlottman. On the — day of May, 1886, the testatrix executed the following codicil, viz.: Confirming and not revoking any of the provisions of the foregoing will, I direct that there shall be paid by her, out of the estate bequeathed by me to my said daughter, Ella Hoffman, to my son, Jerry Hoffman, the sum of $5 00 dollars, and to my son, Rufus Hoffman, the sum of $5 00 dollars, as mementoes of my affection for them, the same to be in full of all claims and demands by them against my estate. ’ ’

The will of Mrs. Hoffman was probated in August, 1886, and this bill was exhibited on June 21, 1891.

The executor, Schlottman, and the devisee, Ella Hoffman, answered the bill, and made their answer a cross bill against the complainants. By the answer and cross bill it is averred that the testatrix owned at her death no personal estate, except a small quantity of household and kitchen furniture of little value, and that her real estate consisted of her home; that for a long time before her death the testatrix was an invalid, dependent for her support upon the exertions of the defendant, Ella, who, in the residence of the testatrix, kept a boarding house, and supported not only her mother, but the complainants in this suit; that after the death of the testatrix, the said Ella has supported an afflicted brother, and that complainants, from that time up to within six months of the institution of this suit, boarded with said Ella, the complainant, Jerry, having a family of three persons; and that during all this time neither of complainants has contributed anything to the support of themselves, the family of Jerry or said afflicted brother. The cross complainant, Ella, charges that, if in fact a charge was fixed by the testatrix on the property for the . payment of the legacies claimed by the complainants, that the sum due has been more than paid by her in supplying them and the family of Jerry with board and lodging, and she prays an account of the amount due her before and since the death of the testatrix, and that the same may be applied to the payment of the legacies claimed.

The cross bill further charges that, “at the time when the said will and codicil thereto was made, said Martha could neither read nor write, and was wholly dependent upon others, who read to her said will and codicil, and that all of the contents thereof were read to her when they were severally executed; that it was the intent and- purpose that the sum of five dollars should be given to each of the complainants, and that when said codicil was read to her and executed by her, the sum mentioned as bequeathed to them was read as five, and not five hundred dollars, and it was the intent and purpose of the person who wrote the words [figures] alleged to be five hundred dollars to write five dollars, and, in truth and in fact he did so write, and if it appears otherwise, it is a mere clerical error of the person who wrote the same. ’ ’

The plaintiffs prayed that the court would construe the will ‘ ‘ according to the true intent and purpose of the testatrix, ’ ’ but if the court should be of opinion that the will as written, by clerical error of the scrivener, was made to express a different purpose than that intended by the testatrix, then, that the same should be by proper decree corrected and reformed so as to express her true purpose; and, finally, that if it should be decreed that complainants were entitled to a legacy of $500 each, then, that the court would direct an account to be stated, showing the amount due by each of them to the plaintiff, Ella, and the sums so found due be applied to the discharge of the legacies. The complainants answered the cross bill, denying the averments thereof.

On final hearing the chancellor suppressed the evidence taken by the plaintiffs, which will be alluded to hereinafter, and rendered a final decree directing the sale of the real estate of the testatrix for the payment of a legacy of $500 to each of the complainants, with interest thereon from August, 1887 — one year from the probate of the will — and from this decree all parties appeal.

The executor and Ella Hoffman assign for error the action of the court in decreeing the amount of the legacies to be five hundred instead of five dollars, and the complainants assign for error his refusal to allow interest on the legacies from the probate of the will.

The original will is certified to us for inspection, and, from such inspection, it is manifest that the Christian name of the legatee, Rufus, and the characters and figures |5 00 in the codicil are in a different handwriting from the body of the codicil. The real controversy in the case is whether these characters and figures express the sums of five or five hundred dollars.

It is well settled that no court can decree the reformation and correction of a will to make it conform to the purpose and intention of the testator not expressed in the instrument as executed by him:

1. Because the testator has passed beyond the jurisdiction of all earthly courts.

2. Because a will is a voluntary conveyance, and, if the court had jurisdiction of the testator, it could not compel him to make a will of any sort.

3. Because the statute of wills provides for the devolution of property by wills actually made, and not by those parties intend, however definitely, to make but do not make. Rhodes v. Rhodes, L. R., 7 App. Cas., 198; Schouler on Wills, § 220; Ehrman v. Hoskins, 67 Miss., 192; 2 Pom. Eq., §871; Bingel v. Volz (Illinois), 10 L. R. A., 321, and note.

If, when the will was presented for probate, or within two years thereafter (code of 1880, § 1961), the validity of the codicil had been contested, it would have been competent, under the issue of devismit ml non, to challenge the codicil as not in fact a part of the will of the testatrix. In this contest it might have been shown that the testatrix was unlearned and unable to read or write; that the codicil was read to her as one giving five dollars - instead of five hundred to the complainants, and, because of such fact, that she did not, in fact, execute under - standingly a codicil giving them the larger sum. In short, anything might have been proved the legal effect of which would show that the paper offered for probate was not, in whole or in part, her will.

But our statute declares that £ £ if no party shall appear within two years to contest the will, the probate shall. be final and forever binding, saving to infants and to persons non compos mentis the period of two years to contest the will after the removal of their respective disabilities.” Code of 1880, § 1961.

Nearly eight years intervened after the will of Mrs. Hoffman was admitted to probate before the bill in this cause was exhibited, and, as to the parties to this controversy, the probate is ‘ ‘ final and forever binding, ’ ’ conclusively establishing that the particular instrument, as written, was and is the legal will of the testatrix. The single question left open for consideration and decision by the courts is the true construction of the instrument thus adjudicated to be the last will of Mrs. Hoffman. 1 Jarman on Wills, 33.

The first inquiry, when we come to the construction of the will, is whether the court is shut up to a mere inspection of the instrument, or may look to extraneous evidence for the purpose of discovering the meaning of the testatrix as found in the language she has employed. Counsel for complainants contend that, parol evidence is inadmissible, because the will is an unambiguous instrument; that no parol testimony can elucidate its plain language, and that to create an ambiguity by resorting to other evidence, and then to solve it by giving controlling effect to such evidence, would be to substitute for the will actually made by the testatrix one which the court thinks she intended to make.

Our examination of the authorities cited by counsel, and of many others, has failed to discover a case which in its concrete facts is analogous to the one before us. But cases are not of great value so long as well-settled principles light our way.

It is a well-settled canon for the construction of wills that the court will take into consideration the attending circumstances of the testator, the quantity and character of his estate, the state of his family, and all facts known to him which may reasonably be supposed to have influenced him in the disposition of his property; but that, when viewed in this light, and from the standpoint of the testator, if the language of the will cannot reasonably be so construed as to carry out his discovered purpose, the will and not the intent of the testator must control. In other words, if the will as made may, without violence to its terms, be so construed as do effectuate the purpose of the testator, as disclosed by the will and attending circumstances, the courts will so construe it, but no circumstances are sufficient to control the clear and unambiguous language of the will. 1 Jarman on Wills, 428; 1 Redfield on Wills, 418 — 443.

Keeping in view the distinction between the interpretation of the written words and the direct evidence of intention independent of the instrument, let us recur to the written will viewed in the light of the circumstances of the testatrix. It appears from the evidence that the estáte of the testatrix consisted of an insignificant quantity of personal property and her home, which was worth about three thousand five hundred dollars. The family consisted of the testatrix, who for some months before her death was an invalid, of an invalid son, of two adult sons (the complainants), and of a daughter, who was the support of the family. Besides these members of the household, there was a married daughter, Mrs. Schlottman, who resided with her husband.

By the will Mrs. Hoffman gave her entire estate to the daughter, Ella, for life, with remainder to the children of Mrs. Schlottman. After the execution of the will, an officious neighbor, who pretended to know the law, advised Mrs. Hoffman that her will would be subject to attack unless she gave to each of her sons as much as five dollars each, and though advised correctly by her attorney that this was unnecessary, she persisted in executing a codicil whereby they would be given these sums. The attorney drew the codicil, leaving blanks for the insertion of the Christian names of the sons, and the amount to be given.

Mrs. Hoffman, desiring to execute the codicil, called in one Speiler, a machinist, and requested him to fill in the blank amounts by writing in each the sum of five dollars, and Speiler, in executing her directions, wrote the character $, the figure 5 and two ciphers in the manner hereinafter set out. Speiler is now dead, but the other subscribing witness to the codicil, Sproule, was examined as a witness, and testified that he remembered the instructions given by Mrs. Hoffman, and that Speiler, attempting to write the' sum of five dollars, wrote the character and figures, as above stated. This witness thinks Speiler read the codicil to Mrs. Hoffman, reading the sums inserted as five dollars, but his memory is not clear as to this.

It is difficult to express in words the precise manner in which the figures are written. We trace them as best we can, and the words and figures appear thus: “To my son, Jerry Hoffman, the sum of $5 oo dollars, and to my son, Rufus Hoffman, the sum of $5 00 dollars, as mementoes of my affection for them,” etc. Now, these figures, if written in one way, would express the sum of five hundred dollars; if written with the decimal mark ($5.00) would mean five dollars, and, so also, if written alone, without the decimal mark, either with the ciphers in the position of a numerator ($5 oo) or distinctly and unequivocally removed by sufficient space from the figure five. An inspection of the original codicil shows the ciphers in each case connected together, removed by a distinct space from the five, in the one instance somewhat above, and in the other distinctly above the line.

Where different sums may be expressed by the use of the same characters or figures according to their collocation, and, as arranged, an uncertainty as to their meaning is suggested, an ambiguity appears upon the face of the instrument; and such, we think, is disclosed by the codicil in this case. We cannot say whether the sum given to the legatees is five dollars or five hundred dollars. There is an absence of the decimal mark, but the ciphers are linked together, removed by an unusual space from the figure they qualify, and written not on the line, but somewhat above it. Now, this ambiguity, being a patent one, it is contended by counsel for complainants, cannot be explained by parol testimony. This argument is made to keep out the parol testimony, for he perceives, of course, that when that is looked to a flood of light fatal to the complainants’ cause is let in. But if, as we have said, there exists an ambiguity on the face of the codicil, then, unless parol evidence may be received, the codicil is inoperative (except under the rule of election), because the court would not know what sum to decree to be paid. The rule against the introduction of parol testimony in cases of patent ambiguity is very generally stated too broadly — frequently for the reason that, with reference to the case before the court, the rule, however broadly stated, is correct in its application. But it is not true that an ambiguity appearing on the face of the paper, if that alone be looked to, cannot be explained by parol, nor that all latent ambiguities may be. When the parol evidence is for the purpose of adding a material term to an instrument, or when the court, having looked to the circumstances of the parties, the subject-matter of the instrument, and all proper collateral facts, remains uncertain as to what the meaning of the written words is, a patent ambiguity appears, which parol evidence cannot aid. 1 Greenl. on Ev., §§ 299, 300.

The difficulty of distinguishing between patent and latent ambiguities led Judge Story to suggest that there was an intermediate class, partaking of the nature of both patent and latent ambiguities — i. e., “when the words are all sensible and have a settled meaning, but at the same time consistently admit of two interpretations, according to the subject-matter in the contemplation of the parties.” The subject is fully discussed in the notes by Cowen & Hill, and Edwards to 2 Phillips on Evidence, § 3, ch. 8. The solution of the difficulty by Prof. Green-leaf in assigning ambiguities of this character to the class of latent ambiguities, is perhaps as satisfactory as can be suggested, and reconciles many apparently conflicting statements of the rule.

Looking in the case before us to the situation of the testatrix, the condition of her family, the character and quantity of her estate and the res gestee of the execution of the will, we see clearly what she meant and intended to do, and no violence is done to the words she has employed, nor is anything added thereto, by accepting the figures of the codicil as meaning five instead of five hundred dollars, for they may mean indifferently the one or the other.

Let the decree he reversed and ca/use remanded.