Chambers v. Watson

Rothrock, J.

— The defendants filed a cross-petition with their original answer, in which they asked that the will be reformed and the description of the land in the will be corrected, so as to cover the land in controversy. The plaintiffs demurred to the cross-petition and the demurrer was sustained. Upon appeal to this court the ruling of the court be-tow was affirmed. See 56 Iowa, 676.

*340The body of the will in question is as follows:

First.—I hereby constitute and appoint Wm. Watson to be the sole executor of this nay last will, directing my said executor to pay all my just debts and funeral expenses and the legacies hereinafter given, out of my estate.

After the payment of my debts, except what is against the real estate, I give to John Chambers the sum of two dollars; to Catharine Spain the sum of two dollars; and the balance of my personal property to my step-father, Osborn Chambers; and all the interest in the following described real estate to William Watson:

Sixty acres Se 25, toon 7, Forty acres Se 24, toon6,

Jasper County State of Iowa.

Petek Chambees. T. D. Bowman, John S. Sproul, Witnesses.

After the cause was remanded, a trial was had to the court at which the defendants introduced parol evidence, from which it was shown that the testator dictated the will and executed it on the day before his death. That he gave the numbers of the land as sixty acres in Section 25, and forty acres in Section 24, and stated that he could not remember the range of the land, but that it was one hundred acres, and all the land he owned in Jasper county. It further appeared that the testator did, in fact, own the land in controversy, and that sixty acres of it is in section 25, and forty acres in section 24, Township 78 N. of Range 17 West. It further appears that there was a mortgage for $600 upon the sixty acres in Section 25, and that, at the time the testator dictated the will, he said he wished to give his property to William Watson, the defendant, and that there was some incumbrance on it, amounting to about $600, and he expected Watson to pay that. This evidence was taken and submitted, subject to the objection of the plaintiffs that the omissions in a will cannot be supplied by parol evidence. Upon the. final consideration of the case the court excluded the evidence, and held that the will did not pass the land to Watson.

*341Much has been written upon the subject of how far ambiguities in written instruments may be explained by parol. All the authorities are agreed that a :patent ambiguity cannot be aided by averment or extrinsic evidence. The difficulty is to determine from the language of the defective instrument whether it belongs to the class of ambiguities which may be explained. Counsel for the respective parties have been diligent in the presentation of many cases involving questions arising upon the uncertainty and defectiveness in written instruments, which cases we need not here cite. As is said in Vol. 2, p. 383, of Redfield on Wills, “this is one of those subjects where the decisions are so much affected by peculiar circumstances that one case will afford very little aid in determining another, not very similar in its state of facts.” We have lately examined and discussed . the distinction between latent and patent ambiguities-in written instruments, and a majority of us held that a subscription to a church enterprise of “20 acres of land,” without other description by county, State, town, section or range, was void for uncertainty. Palmer v. Albee, 50 Iowa, 429.

But we do not think the case before us presents a question of the explanation of an ambiguity in description, but rather one of imperfect description; the defect being in the omission to state the township and range, without which the description is not definite. It is like the example given in 1 Greenleaf on Ev., section 287, of a devise of an estate purchased of A., or of a farm in occupation of B. The description is incomplete, and cannot be applied to its subject without parol proof of what estate was purchased of A., or what farm was in occupation of B. As is said in this section, “evidence is admissible of all the circumstances surrounding the author of the instrument.” Hence it was competent, in this case, for the puspose of applying the devise to its subject-matter, to provein what township and range in Jasper county the testator owned 6Q acres of land in section 25, and in what township and ran£re he owned 40 acres in section 24, and that he *342owned no other lands in J asper county. This done, the description is rendered as certain as though the township and range had been inserted in the will. It is surely doing no violence to any usage as to the abbreviation of words to hold that the testator meant section by the contraction Se, and when it is ascertained that the testator owned lands in sections 24 and 25 in a certain township and range, and owned no land in any- other corresponding sections in Jasper county, the language of the will points unerringly to the lands in controversy. This is not engrafting any provision upon the will which is not already there, nor is it in any manner changing it. As is said in the former opinion in this case — “It is always competent to supplement the language of the will by evidence, so far as is necessary to apply the language of the will to the object or person intended.”

We think the parol evidence should not have been excluded, and that the judgment should have been for the defendant, Watson.

Reversed.