Hunter v. Hunter , 229 Pa. 349 ( 1911 )

Opinion by

Mr. Justice Brown,

The common source of title to the land which is the subject of this ejectment was in John Galloway, who died in 1883, seized of a farm in Mount Pleasant township, Westmoreland county, containing about 306 acres. It was divided by a public road running through it from north to south, and the present controversy grows out of the following testamentary disposition of it made by Galloway in his will, executed May 23, 1879: “I will and bequeath unto my nephew, James Hunter, all that portion of my farm, lying West of the road running through my farm from South to North except that portion which lies along the Brush Run all south of the old coal bank in the fiat. I will and bequeath to my nephew, William Hunter, all that portion of my farm, lying East of the road before mentioned, together with that portion lying South of the old coal bank before mentioned.” James Hunter is dead, and by his will, admitted to probate in June, 1902, his interest in the farm devised to him by his uncle passed to his widow, Mary A. Hunter, the plaintiff in this action. Her contention is that, at the time John Galloway executed his will and when he died, the old coal bank was on the flat or level land along Brush Run, and that she, as the devisee of her husband, is entitled to all that portion of the farm which lies north of that coal bank and west of the public road. The defendant, on the other hand, contends that at the time the will was executed there was no coal bank in the flat land near Brush Run, that the only coal bank on the farm was on the slope of a hill about a thousand feet north of Brush Run, and that he is entitled, as the devisee of his uncle, to all the land south of the coal bank on the slope of the hill and west of the public road. The case was submitted to the jury under instructions that if they found from the evidence that there was an old coal bank in the flat along Brush Run, the plaintiff’s contention should prevail, and from the judgment on the verdict returned in her favor we have this appeal.

The language of the testator in devising his farm to his two nephews is entirely free from ambiguity, and his intention as to how it was to be divided between them cannot be misunderstood. James was to take all west of the public road except that portion lying along Brush Run, south of an old coal bank in the flat. He was to take all north of that coal bank and west of the road. William, in addition to getting all east of the road, was to have all west of it, south of the old coal bank. The portion west of the road excepted from the devise to James and given to William was said by the testator to lie along Brush Run and to be south of the old coal bank in the flat or level land. If there was a coal bank some distance further north on the side of a hill, the intervening space consisting of more than seven acres, it does not answer to “the" old coal bank in the flat” which the testator had in mind when he executed his will. The case of the plaintiff depended upon her ability to show that, at the time the will of her husband’s uncle was executed, there was an old coal bank in the flat which the testator designated as the point from which James was to take all the land to the north, and William all to the south. The whole situation was summed up in the following closing words of the general charge of the learned trial judge to the jury: “If you find there was an old coal bank in the flat, your verdict undoubtedly ought to be in favor of the plaintiff. If there was no old coal bank in the flat, then the plaintiff’s contention falls and your verdict ought to be in favor of defendant.”

Parol testimony was admissible in this case only for the purpose of showing the existence in the flat of the monument of title fixed by the testator himself. It was not competent to show his alleged declarations fixing a different point as the dividing line, for such testimony would have raised a doubt as to his intention, which does not appear upon the face of the will. His intention as there expressed could not be clearer. It matters not that there might have been other coal banks on other portions of the farm — one, perhaps, on the hill above the flat— for the testator had himself declared that the bank in the “flat” should be the dividing line between the lands, and if the plaintiff showed that a coal bank was there, her case was made out. There was no other question of fact for the jury’s determination.

If the excluded offers which are the subjects of the first, second, third, fourth and fifth assignments of error had been allowed, the defendant might have established a will different from Galloway’s written one. This, of course, could not have been permitted. In a prior ejectment between these same parties, involving the same land, in which, however, the present defendant was the plaintiff, the trial judge permitted him to prove declarations of the testator as to how he had divided the farm between his nephews, and, in holding that this was error, the Superior Court, in reversing the judgment for the plaintiff, properly said what we now adopt in dismissing the first five assignments: “When the subject-matter of the devise contained in the will of John Galloway came to be ascertained there was, under the existing conditions of the testator’s property, but one question to be determined: the location of the old coal bank in the flat. If there was a coal bank in the flat, the wprds which the testator had set down in his will there fixed the location of the line between the lands of James Hunter and William Hunter. If, on the other hand, there was no coal bank in the flat, then the description could only apply to the coal bank in the side of the hill. It was not competent to show by declarations of the testator made at the execution of his will, or subsequently, that he intended the devise to include something that was excluded by the terms of the will as executed. 'The modern doctrine is, that where a subject exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity. Evidence is only admitted dehors the will, from necessity, to explain that which would otherwise have had no operation.’ This language was used by Justice Rogers in Wusthoff v. Dracourt, 3 Watts, 240, decided in 1834,- and has been recognized as authority to the present time. The testimony, admitted against the objection of the defendant, described a different line from that in the will. It was only because it did, that it was offered. The very difference, however, shows the error of the admission. The testator’s line, represented by the will, gives to William Hunter all the land south of the old coal bank in the flat.' The line proposed to be established by the parol evidence, as the line intended by the testator, ran from a tree up to the coal bank on the hillside. Thus to give effect to the testimony was to change the will of the testator, and make his oral declarations his will, instead of what he had executed and published according to the forms of law, as his will. That this testimony ought not to have been admitted is clearly established by authority: Best v. Hammond, 55 Pa. 409; Apple v. Byers, 98 Pa. 479; Willard’s App., 68 Pa. 327; Hancock’s App., 112 Pa. 532; Woelpper’s App., 126 Pa. 562; Myers v. Myers, 16 Pa. Superior Ct. 511. The sixth and seventh specifications of error are sustained:” Hunter v. Hunter, 37 Pa. Superior Ct. 311. The remaining six assignments complain of errors in a portion of the charge and in answers to points. We can discover no error in them, and the judgment is, therefore, affirmed.