Doe v. Roe , 1 Wend. 541 ( 1828 )

By the Court,

Savage, Ch. J.

The plaintiff avers that there is a latent ambiguity in the will of the testator, which must be explained by parol proof; while it-is contended by the defendant, that the will is free from ambiguity, and at all events, that the testimony of the scrivener who drew the will, cannot be admitted.

The numerous cases found in the books, many of which were cited upon the argument, are not easily reconcileable. An attempt to reconcile them does not, however, appear to me necessary to a satisfactory decision of this cause. The rule itself is not controverted, that if there exists a latent ambiguity, parol evidence is admissible; for as it is produced by parol proof, it must be dissolved in the same way. (1 Johns, Ch. R. 234.)

Latent ambiguities, says Mr. Justice Story, may be removed paro| evidence, for they arise from the proof of facts aliunde; and when the doubt is created by parol evidence, it is reasonable that it should be removed in the same manner. But if the ambiguity appears upon the face of a will, or any written instrument, extrinsic evidence cannot remove the difficulty without making a new instrument. Mr. Roberts, in his Treatise on Wills, (2d vol. 267,) says : “ There is no rule which stands on a surer principle than this: that parol evidence is never to be admitted where there is no ambiguity to call for explanation, and where the will may operate, according to the words, without any'foreign help.”

The extent of the rule, as found in the books, is clearly stated by the late chancellor Kent, (1 Johns. Ch. R. 234,) that parol proof cannot be admitted to explain the intention of the testator, except in two specified cases: 1. Where there is a latent ambiguity arising dehors the will as to the person or subject meant to be described ; and 2. To rebut a resulting trust. The ambiguity in this case exists, if at all, in the subject matter of the devise. The testator devises all the land he owns which lies along the Schoharie creek, which is connected or belonging to the old farm, and known by the name of Ten Eyck’s patent. In proof, it appears that he owned a lot of land adjoining the old farm, in Ten Eyck’s patent, but it does not answer the rest of the description: all the land I own which lies along the Schoharie creek. The Ten Eyck’s patent lot was not originally any part of the old farm, and is but a small part of the estate in the occupancy of the testator at his death. If the old farm itself is not disposed of by this devise, it is not disposed of at all. A question arises, therefore, whether it was not the testator’s intention to devise the whole of the old farm to his nephew, J. J. Sidney. The fact that the testator left no property corresponding with rhe property described in the will, appears from proof aliunde. It is reasonable, therefore, that parol proof should be resorted to by way of explanation. The parol testimony given by M’Carthy, who drew the will, shews clearly that the testator’s intention was to devise the whole farm to J. J. Sidney; but the ambiguity arose from his misapprehension. This testimony is objected to. In cases of latent ambiguity, I do not observe in the books any exclusion of this kind of proof, (the declarations of the testator.) The cases where such declarations or instructions have been excluded, are cases where there was no ambiguity at all; but an attempt was made to shew a mistake in drawing the will. Brown v. Selwin, (Talbot's Cases, 240,) is one instance of this class of cases. Independent of the testimony of M’Carthy, it must have been the testator’s intention to devise his whole farm to J. J. Sidney. He professes to dispose of that worldly estate wherewith God had blessed him. He gives all the land he owns lying along the Schoharie creek ; and that creek runs directly through lot No. 136, called the old farm : all which is connected or belonging to the old farm. The Ten Eyck lot was a mere appurtenance to the old farm, and does not satisfy the terms, all which belongs to the old farm. The words used convey to the mind an intention to devise the old farm itself. This construction is confirmed by all the extraneous circumstances of the relationship existing; by the fact that the testator and devisee had always lived as father and son, in the same family; that the devisee was a favorite nephew, and that the testator gave him all his farming utensils and farming stock.

Without reference to the latter part of the description in this devise, there could be no difficulty in locating the subject matter of the devise; and in such cases it is well settled, that the latter words of description may be rejected. Not so, however, if they are words of restriction.

In Goodtitle v. Paul, (2 Burr. 1089,) the testator says : “I give to my wife my farm at Bovingdon, in the tenure of John Smith.” The fact was, that about six acres of the farm were in possession of the testator, and the residue in the possession of John Smith. Lord Mansfield says, that the words “ in the tenure of John Smith,” could not be understood as a restriction; they where an additional description, which does not vitiate, if false. In Goodright v. Pears, (11 East, 58,) the testator devised to his wife “all his copyhold, cottage and premises then in his own possession.” Part of the premises were not in his own possession ; but the court held that the previous words were sufficient to convey the “ copy-hold, cottage and premises.” The case of Wilson v. Mount, (3 Vesey, 191,) seems to me somewhat similar, and yet the decision was the other way. The testator devised several estates, freehold and copyhold, whereof he should die possessed, and added in a parenthesis, (the copyhold part whereof I have surrendered to the use of my will.) The master of the rolls considered these words restrictive. Gascoigne v. Barker, (3 Mkyns, 8,) was like this case, and supports the decision. The case of Gootitle v. Southern, (1 Maule & Selwyn, 299,) is more like the case under consideration. The devise was thus : “ I give and devise all that my farm, lands and hereditaments, called Brogue's farm, situate, &c. now in the occupation of A. Clay.” The farm called Trogue’s farm was in the occupation of A. Clay, but the closes in question were in possession of one Marsden. Lord Eilenborough says, it is clear that he (the testator) meant to pass all which was called Tragueas farm, which is a plain and certain description, and the defective description of the occupation will not alter the devise.

There are some cases in our own court which establish the same doctrine. In Jackson v. Clark, (7 Johns. R. 228,) Spencer, justice, speaking of the rules of construction of deeds, lays down this proposition : “ If there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant.” And the court, in that case, held a deed good, although the lot was described as being in the 12tb, instead of the 21st general allotment of the Kayaderosseras patent. In Jackson v. Sill, (11 Johns. R. 212,) the subject was much discussed by Chief Justice Thompson, who delivered the opinion of the court. The devise there was this : “ I give, devise and bequeath unto my beloved wife, for and during her widowhood, the farm which I now occupy. The premises claimed had been parcel of the farm of the testator; but when the will was made, and when the testator died, (hey were in the occupancy of one Salisbury, under a lease for seven years, and comprised ninety acres of land, with house, barn and necessary improvements, for a farm by itself, It was held the premises did not pass by the devise. The occupancy by the testator being matter of description, without the'words, which I now occupy, the subject matter of the devise could not be located ; there was no ambiguity which required extrinsic aid to explain it. The cases to which I have referred are in that case cited and commented upon at length. The chief justice, in conclusion, adopts the rules which I have already stated : that a latent ambiguity may be explained by extrinsic evidence; and that if there is a certain description of the person or thing devised, and a further description is added, it is immaterial whether the superadded description be true or false. The same point was again decided in Jackson v. Loomis, (18 Johns. R. 84, and 19 id. 450, S. C. in error.)

íf I am correct, therefore, in assuming that the subject of the devise in question was sufficiently described without the superadded description, K and known by the name of Ten Eyck’s patent,” then clearly the plaintiff is entitled to recover.

Judgment for plaintiff.