In Re Hoisington's Estate

This appeal is brought here by the beneficiary of the residuary clause of the last will and testament of Lizzie A. Hoisington, deceased, to test the propriety of the learned trial court's interpretation of a specific devise of real property.

Bryson's Addition in the City of Gettysburg is located just north of Platt's Addition in that City and there is no street or alley between the two additions. The lots along the south side of Bryson's Addition are of odd size, namely, 18 4/17 feet, and the lots along the north side of Platt's Addition are also of odd size, namely, 31 13/17 feet. The deceased owned a home facing west on main street in Gettysburg, and, the plot of ground upon which it is situated being 50x140 feet in dimensions, is made up of one of these irregular lots from each of the two additions. That is to say, the north 18 4/17 feet of said plot is Lot 6, Block 34 of Bryson's Addition, and the south 31 13/17 feet of the plot is described as Lot 6, Block 69 of Platt's Addition. On this plot of ground is located a dwelling, part of which is upon both lots, and an outside toilet, a tool house, a cistern, and a chicken house, which are all located on the lot forming the south part of the plot. The entrance ways at the front and back of the house are also located on the south lot. The division line between the two lots passes through the living room and dining room downstairs, and a bed room upstairs, leaving five feet of these rooms and five feet of the porch on the north lot. There are no other improvements on the north lot except a sidewalk and part of a fence which surrounds the entire property.

Lizzie Hoisington had purchased this property as a whole many years ago and had occupied the same as her home up until the time of her death on the 14th day of September, 1936.

The significant portions of the will under which the opposing parties claim, respectively, read as follows:

"Third — I give, devise and bequeath Lot Six (6) of Block Thirty-four (34) of Bryson's Addition to Gettysburg, Potter County, South Dakota, together with all improvements, hereditaments and appurtenances thereto attached or any wise appertaining, to Louisa A. Spencer, of Gettysburg, South Dakota, her heirs and assigns forever, it being my expressed intention to hereby transfer to the said Louisa A. Spencer a fee simple title in said described real estate.

"Fourth — All of the rest, residue and remainder of my property real or personal, of every kind or description and wherever situated, not hereinbefore disposed of, I give, devise and bequeath to my grandson, Wallace Hoisington, subject to the conditions that no deliverey shall be made him of any part thereof until he shall have attained his twenty-first birthday, provided, that any and all income therefrom may until then be annually appropriated to the use of said Wallace Hoisington, as the Executor hereof, may in his discretion deem for the best."

Appellant and respondent are unrelated to each other.

The learned circuit court interpreted the foregoing third clause of the will as expressing an intention to devise the home and plot of ground upon which it stood to Louisa Spencer, and entered findings, conclusions and judgment accordingly. The appeal is from the judgment and from an order overruling a motion for a new trial.

The first challenge of the assignments of error is directed at the admission of extrinsic evidence as an aid to interpretation. The extrinsic evidence heard by the court permits classification. In one class we place evidence which explained the situation of the property in question and tended to indicate the knowledge of the testatrix with reference to that property at the time she made her will. In the other class we deal with instructions of the testatrix to her counsel at the time her original will was drafted. We find no difficulty in dealing with either of these contentions.

[1] The first class of evidence was admissible for the purpose of placing the court in the situation of the testatrix at the time the will was made. Wigmore on Evidence, § 2470.

[2-4] The second class of evidence was as clearly inadmissible. The law is otherwise in some jurisdictions, but with us declarations of the testator dealing with his intentions are clearly proscribed by statute:

"56.0302 Will excludes all oral declarations. In case of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations."

"56.0324 Imperfect description corrected without evidence of declarations. When applying a will it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions must be corrected if the error appears from the context of the will, or from extrinsic evidence; but evidence of the declarations of the testator as to his intention cannot be received."

The command of these statutes is plain and should not be avoided by construction. Prejudice to appellant by the admission of these declarations of intention does not appear from the record. That the findings of the trial court were based thereon is not conclusively shown. For reasons frequently announced it is presumed that the court disregarded this inadmissible evidence. And see Rock et al. v. Zimmermann et al.,25 S.D. 237, 126 N.W. 265.

Thus we reach the real contention of the appellant. It may be stated thus: That under the guise of interpreting the will, the learned trial court actually reformed that instrument so as to conform its third paragraph to an intention which the testatrix did not express therein.

[5, 6] The general principle, which precludes a court from ascribing to a testator an intention his will does not express, will be conceded. Whether SDC 56.0324, supra, was intended to relax that general principle we think we need not now decide. That these sections and the common law charge a court with the duty to give effect to the intention of the testator as revealed by the expressions of the will when it is read in the light, and with the aid, of surrounding circumstances, is hardly open to debate. Wigmore on Evidence, supra; 94 A.L.R. 44. It is in the application of these accepted principles, rather than in their statement, that differences of opinion arise. Cf. annotation 94 A.L.R. 29. Appellant reads a precise and express devise of a single lot from the words of the third provision of this will. When light is limited to that afforded by the contents of the will, no reason can be discovered for questioning the conclusion thus reached. When so read, there appears what seems but an unduly expansive devise of a single improved lot or tract of real property. However, that which seems so certain when attention is confined to the will, becomes obscure, imperfect and insensible when applied to the external objects with which it purports to deal. Application of the provision brings to light not a single improved lot, but a plot of ground improved as a residence property with the lot described constituting but one of its integral parts. The heart of the unit, the dwelling house, straddles the line between the two lots. The appurtenances used in connection therewith, viz., the cistern, outside toilet, tool house, chicken house, and entrance walks, are all on the south lot of the plot. The entrances to the house are all on the south lot. The dividing line between the two lots cuts through the most vital parts of a home, viz., the living room, the dining room, bed room and porch, and leaves Lot 6, Block 34, Bryson's Addition, with but a five foot fragment of those rooms, and no appurtenances. The absurdity of a result which severs a home into two useless parts, and at the same time operates to transfer those respective parts to unrelated, disconnected persons, is manifest. Reason and authority demands that such a result should be avoided if the words used will support a different interpretation. Wigram's Third Proposition, Wigram's Extrinsic Evidence in Aid of the Interpretation of Wills, 5th edition.

[7] We have concluded that the admittedly imperfect expressions of the testatrix reveal a different intention. Her words reach beyond Lot 6, Block 34, Bryson's Addition. Attempt to confine them to that lot is repulsed by the fact that the testatrix has said that she intended to devise more than one improvement, more than one appurtenance, for she said "together with all improvements, hereditaments, and appurtenances thereto attached or any wise appertaining." Lot 6, Block 34, Bryson's Addition, includes no more than a fragment of a single improvement, and no appurtenances to that improvement. If the north lot constituted a separate and distinct piece of real property, under familiar principles the false portion of the description could be rejected. 69 C.J. 83. Such is not our case. The lot specifically described, and another lot, have been fused into a unit by a common set of improvements. The words of the testatrix lay hold of integral parts of that unit. We think they reveal and express an intention to devise the unit, viz., the home of the testatrix, and we so hold.

Under a similar set of facts, the Wisconsin Court included an entire apartment building within a devise which only described a portion of the plot it improved. In re Stack's Will (Mathiowetz v. Stack et al.), 214 Wis. 98, 251 N.W. 470, 92 A.L.R. 150.

Finding no prejudicial error in the record, the judgment and order of the trial court are affirmed.

POLLEY, ROBERTS, and RUDOLPH, JJ., concur.