Armistead v. Armistead , 32 Ga. 597 ( 1861 )

By the Court.

Lumpkin, J.,

delivering the opinion.

What is a share of the testator’s estate ? Does the residuum have to be divided into three parts, and are the legatees mentioned in the third, fifth and eleventh items of the will alone entitled to it; or is his remaining property, real and personal, after deducting the eight specific legacies, to be divided into eleven parts; and are all entitled to participate ?

It is impossible to solve this question with any certainty. We guess and conjecture, this is all. One of the Court adopted the former opinion—the other two Judges the latter— though all admitted that there was too much doubt and uncertainty attending the matter to arrive at any satisfactory conclusion. The same decision would characterize the common, as well as the legal mind, upon this point.

Is parol testimony admissible to aid the construction? We think not—most clearly. The word share is not equivocal in its meaning—something must be added to the testimony to solve the question—and such was the purpose of the parol proof offered. But this is inadmissible. Parol evidence cannot be received to add to a will; and although the distinction between latent and patent ambiquities, when examined, is wholly unphilosophical, and founded upon a scholastic quibble of Lord Bacon, yet in no event can this will be helped by parol proof. What I have said of ambiquities is not judicial; I speak as a man. But to justify myself, take the familiar example in the books, of a latent ambiquity; a testator bequeaths a legacy to John Smith, of Athens. There are two John Smiths, and parol proof is allowed to show which was intended. That very proof makes the will of a testator pro tanto. And yet if the same testator gives a specific legacy to his wife and neice, and says, in addition to what I have given her, I bequeath to her the rest of my property remaining at my death, you can not, by parol, prove which her was meant, whether the wife or the neice.

Our conclusion is, to direct the specific legacies to bo paid, and to declare the rest of the will, which attempts to dispose of the residue of his estate, void, for uncertainty, and to declare an intestacy as to that; and under our statute, the executor holds it as trustee for the next of kin.

Let the judgment be reversed.