dissenting:
The decree directed to be entered defeats the manifest intention of the testator, takes from his children whom he intended to benefit the provision intended for them and awards the greater part of it to others. The opinion igñores the application of rules of testamentary construction made in numerous decisions of this court in the most recent cases. It concedes what, of course, cannot be reasonably disputed,—that the ambiguity arising from the description of the subjects of the devises by section numbers alone, without indicating the township, range, county or State, may be explained by extrinsic evidence, and that it is explained by evidence that the testator owned the farm lands described in the bill, and no other. This conclusion is reached by the application of the presumption that the testator intended by his will to dispose of his own property and that he did not attempt to dispose of property which he did not own. Though the only words descriptive of the location of the property were “section 12” and “section 9,” and those words were entirely indefinite because applicable to a very large number of tracts, yet by reason of the presumption just mentioned there was inherent in the description the idea of ownership by the testator. Since the tracts described in the. bill were the only tracts possessing that attribute of ownership, the will necessarily referred to them. The devise includes two particulars of description, viz., ownership by the testator and section number. When the tract is ascertained to which, alone, these two particulars attach, the devise acts upon that tract.
The question of the location of the tracts within the section is somewhat different. The testator owned a quarter of section 12 and a half of a quarter of section 9. Had he devised “the east half of the quarter of section 12, the west half of the quarter of section 12 and the half .quarter of section 9,” probably no question could arise as to the sufficiency of the description, for the court having ascertained, as the majority opinion does, what sections 12 and 9 were intended by ascertaining in what sections 12 and 9 the testator owned land, could also ascertain what quarter of section 12 and what half quarter of section 9 were intended by ascertaining what quarter and half quarter of the respective sections the testator» owned. Parol evidence is admissible of all the circumstances surrounding the testator and the state and description of his property for the purpose of applying the language used to the conditions existing, and a devise will not be avoided for any errors in the description of the devisee or the subject of the devise if enough remains, aftér rejecting the errors, to show with certainty what was intended when considered from the position of the testator. It is a recognized rule of construction of written instruments that a false particular in the description of the subject matter shall not vitiate the instrument, and we have quoted and approved the rule laid down in Page on Wills, (sec. 819, p. 376,) that if the testator “owns any real estate which corresponds, in part, to the description in the will, the court will reject the incorrect part of the description and will pass the realty conveyed by the correct description.” Collins v. Capps, 235 Ill. 560.
The principle has been applied in a great variety of cases. In Decker v. Decker, 121 Ill. 341, the will contained a devise of “twenty acres off the west half of the northeast quarter of the north-east quarter of section 33.” The testator never owned the no'rth-east quarter of the northeast quarter of the section but did own the north-west quarter of the north-east quarter. There was no other evidence affecting this question, and the court construed the will by rejecting the words “of the north-east quarter” where they first occurred in the description as a false circumstance of the description, applied the description to the property actually owned by the testator, and held that the devise was of the wrest half of the testator’s land in the northeast quarter of the section, which was situated in the northwest quarter of that quarter section instead of the northeast quarter, as stated in the will.
In Whitcomb v. Rodman, 156 Ill. 116, there was a controversy over two devises, one of forty acres-, being the north-west quarter of the south-east quarter of section 22, to the testator’s son Joseph, the other of forty acres, being the north-east quarter of the south-east quarter of the same section, to his son Edward. The testator owned no part of the north-east quarter of the south-east quarter and only the west three-fourths of the north-west quarter of the south-east quarter, which tract was itself devised by another description. The testator owned the south-west quarter of the north-east quarter and the south-east .quarter of the north-east quarter of section 22, which was not described in the will, and no other forty-acre, tract in section 22. The devises were construed by rejecting the words “north-west,” “south-west,” “north-east” and “southeast” as words of false. description, and each devise was read as “forty acres, being the * * * quarter of the * * * quarter of section 22.” The testator having two, and only two, tracts answering the description, it was held that he devised one of the tracts to each son and that they took and held the tracts undivided. A like conclusion was arrived at in the very similar case of Moreland v. Brady, 8 Ore. 303, where two devises of lots 1 and 2 in block 187, which the testator did not own, were held to apply to lots 3 and 4 in block 187, which he did own, the numbers “1” and “2” being rejected as false description.
In Huffman v. Young, 170 Ill. 290, the devise was of sixty-two and one-half acres off of the east side of the north-east quarter of section 20. This was a definite and certain description of a particular tract of land, but the testator did not own it. He did, however, own sixty-two and one-half acres off of the north, end of the east half of the north-east quarter of section 20 and no other lands in that quarter section. The words “off of the east side” were rejected as a false description, leaving “sixty-two and one-half acres of the north-east quarter of section 20,” which words alone described no land, but in connection with the fact that the testator owned that precise quantity of land in the section were held sufficiently definite to convey the land the testator owned.
In Vestal v. Garrett, 197 Ill. 398, a devise was made as follows: “Fifteen acres to David J. Garrett, fifteen acres to Douglas Garrett and fifty acres to Martha A. Vestal of the undivided south-west three-fourths of the south half of the south-west quarter and the west half of the south-east quarter of section 33,” etc. This description, in itself, is meaningless and no lands can be located from it. The testator, however, owned the undivided one-third of the southwest quarter and of the west half of the south-east quarter of section 33. The false words of description, “south-west three-fourths of the,” were rejected, and the devises held to convey eighty acres of the undivided south-west quarter and west half of the south-east quarter of section 33, being the quantity of land which the testator owned in said tracts.
In Douglas v. Bolinger, 228 Ill. 23, the devise was of the north half of the north-west quarter of section 12, one-half of which the testator did not own, and it was held to pass the west half of the north-west quarter, which he did own and which was the only part of the quarter section he did own. In Pelkel v. O’Brien, 231 Ill. 329, a devise of the north half of the south-east quarter of section 27, which the testator did not own, was held to pass the east half of the south-east quarter, which he did own. In Collins v. Capps, 235 Ill. 560, a devise of the west half of the northeast quarter of the section was held to pass the north half of the north-east quarter. In Gano v. Gano, 239 Ill. 539, the devise was of “the south-east quarter of the north-east quarter and the north-east quarter of the north-west quarter of section 14,” etc. The words “quarter of the northeast quarter” being stricken out, there remained “the south-east and the north-east quarter of the north-west quarter of section 14,” which tracts the testator owned and which were held to pass by the devise. So in Iowa a devise of the south half of the north-east, quarter was held in Stewart v. Stewart, 96 Iowa, 620, to convey the south half of the south-east quarter, and a devise of the south-east quarter was held to pass the south-west quarter in Bckford v. Bckford, 91 Iowa, 54. In Ohio the east half of the south-east quarter was held to convey the east half of the north-east quarter in Merrick v. Merrick, 3 7 Ohio St. 126. In Pate v. Bushong, 161 Ind. 533, a devise of the northwest quarter of section 29 was held to convey the northwest quarter of section 28 and a devise of the east half of the south quarter to convey the east half of the south-west quarter.
In Vestal v. Garrett it is stated that “if the words of the testator as to the donee and subject of the gift are unambiguous those words cannot be varied by evidence of extraneous facts, however clearly a different intention may appear,” and Kurts v. Hibner, 55 Ill. 514, Bishop v. Morgan, 82 id. 351, Bingel v. Vols, 142 id. 214, and Williams v. Williams, 189 id. 500, are cited in support of that proposition. In those cases, as well as in Lomax v. Lomax, 218 Ill. 629, this rule was applied, but in each of the cases cited supra, (Decker v. Decker, Whitcomb v. Rodman, Huffman v. Young, Douglas v. Bolinger, Belkel v. O’Brien, Collins v. Capps, and Gano v. Gano,) as well as in the cases cited from other States, the words of the testator as to the subject of the devise were unambiguous, yet evidence of the state and description of the testator’s property was received in each case for the purpose of identifying the subject of the devise by enabling the court to read the language of the will from the position of the testator. The cases in which the rule contained in the language quoted from Vestal v. Garrett, supra, has been disregarded by this court are more numerous than those in which it has been followed, and in that case the cases of Decker v. Decker, supra, Whitcomb v. Rodman, supra, and Huffman v. Young, supra, in which that rule was disregarded, are cited and not disapproved. It is stated in Vestal v. Garrett that when “there is a latent ambiguity in the description of the object or subject of the gift and such ambiguity can be removed by rejecting false words, leaving a complete, intelligible description, it is the duty of courts to do so, as where there are two .descriptions, one good and the other bad, the authorities are uniform to the effect that the latter may be rejected.” It is only by an application of the presumption that the testator intended to dispose of property which he owned that the court was enabled to apply the unambiguous words descriptive of the subject matter of the respective devises contained in the seven cases above cited from the decisions of this court, and in numerous cases in other courts, to the property actually intended to be disposed of. It is by the application of that presumption that the court, in the majority opinion, ascertains the section intended by the ambiguous description in the will, not by adding to the terms of the will, but by placing itself in the situation of the testator. The presumption mentioned prevails and is given effect .in that opinion. It must prevail in every case of construction of- a will. The existence of such legal presumption necessarily gives rise to a latent ambiguity in every case where the testator does not own the property described in the devise. In such case there are always at least two circumstances descriptive of the thing, viz., ownership by the testator and location or other descriptive fact mentioned in the devise. The fact that the two do not agree can only be made to appear by extrinsic evidence. The ambiguity is therefore latent and may be removed by extrinsic evidence. “It is settled doctrine that such an ambiguity may arise upon a will either when it names a person as the object of a gift or a thing as a subject of it and there are two persons or things that answer such name or description; or, secondly, it may arise when the will contains a misdescription of the object or subject, ¡ps where there is no such person or thing in existence, or, if in existence, the person is not the one intended or the thing does not belong to the testator. The first kind of ambiguity, when there are two persons or things equally answering the description, may be removed by any evidence that will have that effect,—either circumstances, or declarations of the testator, (i Jannan on Wills, 370; Hawkins on Wills, 9, 10.) When it consists of a misdescription, as before stated, if the misdescription can be struck out and enough remain in the will to identify the person or thing, the court will deal with it in that way; or, if it is an obvious mistake, will read it as if corrected.” Patch v. White, 117 U. S. 210.
The cases in which the rule has been applied by this court, not only in equity but also at law and not only in cases of wills but also of deeds, that a false particular in the description of the subject matter shall not vitiate the instrument, are of great frequency. Among them are Miller v. Beeler, 25 Ill. 163, Myers v. Ladd, 26 id. 415, Swift v. Lee, 65 id. 336, Emmert v. Hays, 89 id. 11, as well as cases cited in the principal opinion.
The devises are: To Charles, “all of west J4 of N. W. 34 of section 12;” to Mary J. MacKender, “east 34 of N. W. 34 of section 12;” to James, “all of the east half of the north-west 34 of section 9.” These devises must all be held to refer to property which the testator owned. If the letters “N. W.,” which constitute the false description, are stricken out of the first two devises and the word “north-west” out of the third, they will read, “all of the west half of 34 of section 12,” “all of east half of 34 of section 12” and “all of east half of 34 of section 9.” The testator owned “34 of section 12,” and only one. He owned “east half of 34 of section 9,” and only one. When he devised property that he owned, using that language, no doubt can exist as to his intention or his expression of it. Effect should be given to the intention so expressed. If the north half of the north-west quarter is held to convey the west half of the north-west quarter, as in Douglas v. Bolinger, supra, why should not the west half of the northwest quarter be held here, under precisely similar circumstances, to convey the west half of the north-east quarter? Why, under exactly the same conditions, should the north half of the south-east quarter be held in Felkel v. O’Brien, supra, to convey the east half of the south-east quarter, but the east half of the north-west quarter be not held here to convey the east half of the north-east quarter? And if the west half of the north-east quarter is construed in Collins v. Capps, supra, as conveying the north half of the northeast quarter, what is the reason that the same rule of construction does not apply here, and require the east half of the north-west quarter to be construed as conveying the east half of the south-tyest quarter ? There can be no certainty in the law unless the same rule is applied to the same facts under the same circumstances.