(dissenting). In this ease it appears that Anton Kahoutek made a will by the express terms of which he left to his wife the S.W. of section 9, town 130, range 52, for the term for life. He did not own any part of that quarter section, hut he did own the S.W. ¼ of section 10 in the same town and range, and by some inadvertence it is clear that in the will section 9 was written for section 10. Manifestly the testator did not mean to mock his wife by an attempt to leave her a quarter section of land that he did not own. Now the statute is that: 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 omission must be corrected, if the error appears from the context of the will or from extrinsic evidence. § 5708. Now, from the will itself it does appear that the testator intended to leave to his wife a quarter section of land in the specified township and a quarter section that he owned, and from extrinsic evidence it appears that he owned the S.W. ¼ of section 10, and not the S.W. ¼ of 9. Hence, it is clear to a mathematical demonstration that the purpose of the testator was to bequeath to his wife the S. W. ¼ of section 10; and it is the plain duty of this court to give effect to the will, that is, to the testator’s purpose, when it is manifest from the will and from extrinsic evidence. That is in accord with plain common sense and the letter and spirit of the statute. Hence, the judgment of the district court should be affirmed.
On Reargument.
Bruce, Ch. J.A reargument has been had in the above-entitled case, but the majority of the court still adheres to its original opinion.
As we understand the law as declared by §§ 5686 and 5708, Comp. Laws of 1913, and as laid down by both the English and the American cases, including the case of Patch v. White, 117 U. S. 210, 29 L. ed. 860, 6 Sup. Ct. Rep. 617, 710, and on which counsel for respondent chiefly relies, it is that extrinsic evidence is not permissible to 'correct a mere mistake, but is only permissible where there is a latent ambiguity and where the false words or false description may be stricken out, and there still remains enough in the will to clearly evidence the intention of the testator, and to describe the legatee or the property sought to be devised.
No such a situation is before us. At the most the question is merely, Bid the testator intend that his wife should have a life estate in 80 or in *227160 acres of land ? Even if we strike out the false words “section 9” on the ground that the testator did not own the southwest quarter of that section, what is there in the will to prove that he intended to devise to his wife a life estate in the southwest quarter of section 10, and to thus limit the definite bequest of the same quarter to his son Adolph, burdened as it was by the bequest of $500 to his daughter Rosa ?
Perhaps the testator believed that he owned the southwest quarter of section 9. Even if he had been told upon his deathbed that he did not, are we sure that he would have changed the remainder of his will, and the bequest to his son Adolph, in the light of the fact that he had already deeded to his wife a life estate in the south half of the southeast quarter of section 9 ?
Perhaps the false words were not “section 9” at all, but the words “southwest quarter,” and it was the intention of the testator merely to confirm in his wife the life estate in the south half of the southeast quarter of section 9, which he had already deeded to her.
We are asked, indeed, not to correct a latent ambiguity in reference to a general description contained in the will with which a particular description is inconsistent, and this is usually the only case in which the courts can interfere, but to make a new will based on our belief as to what the testator should have done. This we cannot do. The right to devise property by will is not a natural, but a statutory, right. The statutes have placed certain restrictions upon the methods by which property can be devised, and we are bound thereby.
It may be well to suggest that in the case of Patch v. White, supra, not only did the court hold that there was a sufficient general description in the will to identify the property and to correct the mistake, but that the property in question was devised to no one else, and that it was the intention of the testator to devise all of his property. Here all of the testator’s property is devised and here is no general description to rely upon.