Thomson v. Thomson

Sherwood, J.

I. The rule in regard to descriptions of land in a deed or will is that where general words are used in describing the property conveyed or devised, .and such general description is followed by one more particular, that in such case the general description shall prevail over the particular. Thus in Rutherford v. Tracy, 48 Mo. 325, a conveyance was made of a certain lot in a certain block, and superadded to that were words of a particular description, which actually embraced a less area than the lot mentioned; but .this court applying the familiar rule just stated rejected the particular description as repugnant to the general intention. As shown in that case by Wag-nek, J., this is the prevalent rule and not confined to any class of intruments.

In Greenleaf’s Cruise on Real Property, the point is thus expressed: “The modern rule is to give effect to the whole and every part of the instrument, whether it be a will or a deed, or other contract; to ascertain the general intention, and permit it, if agreeably to law, whether expressed first or last to overrule the particular ; and to transpose the words wherever it is necessary in order to carry the general intention plainly manifested into effect.” 4. Greenleaf’s Cruise on Real Property, ch. 12, sec. 26, note 1, and cases cited.

In Lodge’s Lessee v. Lee, 6 Cranch, 237, the description was “all that tract or upper island of land called ‘Eden,’ ” and then it was added, “beginning at a bounded maple,” and déscribing the land conveyed by bounds, courses and distances, but so as not to include all the island.' The court held that the whole island passed.

In Keith v. Reynolds, 3 Greenleaf, 393, the description was, “a certain tract of land or farm lying in Wins-low, it being included in that tract which was granted’ ’ to Esq. Pattee, and afterwards there was added a particular description of courses and distances, which did not include the whole farm. It was contended that the particular description should prevail in- preference to the other, which was more general and uncertain; but it was decided that the first description was certain enough, and that it was to be adopted rather than the description by courses and distances, which was more liable to errors and mistakes.

In Jackson v. Barringer, 15 Johns. 471, the grant was, “the farm on which J. J. D. now lives,” which was bounded on three sides, and “to contain eighty acres in one piece.” The farm contained one hundred and forty-nine acres, and the decision was that the whole farm passed.

Now in the present instance, the words of general description are: “The tract of land on which I now live,” followed by words of particular description. Under the rule stated, it would seem that there should be no difficulty if any conflict should arise between the general and the particular descriptions, to retain and uphold the former and reject the latter. 1 Jarman on Wills [6 Ed.] 481.

In this case there is evidence identifying the “X” forty as part and parcel of the home place or tract on which the testator resided at the time his will was executed and at his death. Fowler, a brother-in-law of Thomson, plaintiff, and of defendant, a disinterested witness, states that that forty was fenced in with the other land, i. <?., the home tract, by a fence which commenced at the Lexington road and ran around from that point on the west and north sides of the forty up to the southeast corner of Ham’s land, and was under the widow’s control all the time until her death; and Fowler was in a position to know, for he for some years had the place in cultivation, and there was other testimony of like import.

As before remarked, it was a conceded fact at the trial that the rest of the land except the “X” forty constituted the home tract, and parol evidence was obviously competent to identify the home tract, to show what were its boundaries and how the testator regarded the matter. Abbott’s Trial Evidence, 144; 1 Jarman on Wills [6 Ed.] 431, 432, 433, and cases cited; Wigram on Wills, 142; Taylor v. Boggs, 20 Ohio St. 516. This point is well illustrated in Sanford v. Raikes, 1 Mer. 646, where Sir William Grant in discussing the admissibility of extrinsic evidence in such cases observed: “I had always understood that, where the subject of a devise was described by reference to some extrinsic fact, it was not merely competent but necessary to admit extrinsic evidence to ascertain the fact and through that medium to ascertain the subject of the devise. * * * Here the question is not upon the devise but upon the subject of it. Nothing is offered in explanation of the will or in addition to it. The evidence is only to ascertain what is included in the description which the testator has given of the thing ■ devised. Where there is a devise of the estate purchased of A, or of the farm in the' occupation of B, nobody can tell what is given until it is shown by extrinsic evidence what estate it was that was purchased of A or what was ■ in the occupation of B. ” '

The fact that hundreds of acres of land were owned by the testator contiguous to his home tract, should not have the effect to destroy the probative force of evidence showing what the boundaries of the home tract were.

II. When the extrinsic evidence was introduced in this case to show the boundaries of the tract on which the testator resided, the controversy became centered alone on the“X” forty. The evidence thus properly introduced disclosed this state of facts: That by following the literal words of the will, and running the western boundary of the home tract as indicated by the dotted lines, the public road would not be reached by exactly one quarter of a mile, nor would such dotted line go south with that road as required by the exact words of the will; but that if the words in parentheses were added to the description so that on reaching the southeast corner of Ham’s land the course would be “thence west one quarter of a mile,” no difficulty would be experienced in following the west line of the disputed forty, “thence south one quarter of a mile, thence west •one half quarter of a mile to the Lexington and' Glasgow road, thence south with said road one quarter of a mile, ’ ’ etc. It is true the distance bf the last call is an error, but it is an error common to both descriptions, and it is true also that the dotted line could be extended west by legal implication one quarter of a mile in order to strike the Lexington and Glasgow road, but this would be the case even if that road were ten miles distant.

It would seem plain from the circumstances already set forth that an error in fact had occurred in the description of the lines in question; an error so palpable as to authorize the supplying by intendment of the evidently missing words, “thence west one quarter of a mile.” Supplying these words all difficulty vanishes and all discrepancy ceases, except the one call after the Lexington and Glasgow road is reached, to-wit, “thence south with said road one quarter of a mile;” but the extra half quarter of a mile can be exscinded by applying two legal principles, one the maxim of falsa demonstratio, etc.; the other in. regard to monuments controlling rather than distances.

In relation to supplying words where it is obvious that from the words used and the .general tenor and context of the instrument that certain words or their substance has been omitted, such words may be supplied by construction. This was so ruled by this court in regard to a deed. Hoffman v. Reihl, 27 Mo. 554. See also 4 Greenleaf’s Cruise on Real Property, ch. 20, sec. 29, and cases cited; Holden v. Raphael, 4 Adolph. and El. 228; Say and Seal’s Case, 10 Mod. 45; Flight v. Lord Lake, 2 New Ca. 72. A similar ruling was recently made by this court in regard to a will. Nichols v. Boswell, 103 Mo. 151, and eases cited.

Where it is clear on the face of a will that the testator has not accurately or completely expressed his meaning by the words he has employed, and it is also apparent what words or their substance have been omitted, these words may be supplied to effectuate the intention as collected from the context. 1 Jarman on Wills [6 Ed.] 487, et seq.; 6 Wait’s Actions & Defenses, 382, 383.

And it is conceived that the circumstances of this case do not affect the application of this principle, where the necessity of supplying the missing words is shown by applying the.words of the will to the locus in quo and then showing by parol evidence and by necessary and inevitable inference from that and the words of the will that a palpable omission has been made in the written description.-

III. The next point for discussion is whether the informal will executed in 1860 should have been admitted in evidence.

This instrument, as already stated, came from the proper custody and was duly signed by the testator, and the third clause, over which this litigation arose, was in the handwriting of the testator. Such instruments have heretofore been declared admissible by this court where the question was one of undue influence; and a will executed three years before was admitted in order to show an intention on the part of the testator in designating the objects of his bounty. Mueller v. Hospital Ass’n, 73 Mo. 242; Thompson v. Ish, 99 Mo. 160.

In the latter case just cited it was ruled that it was immaterial whether the former will was formally executed or not. In the present ease the genuineness of the instrument is indisputable, and by that instrument all doubt or question as to the description of the property intended to be devised is put at rest. Now it is clear that the declarations of a testator are receivable as to the subjects or objects of his bounty, where a latent ambiguity arises. 1 Redfield on Wills [3 Ed.] par. 7, et seq, p. 560. And it is difficult to see why for similar reasons a former will may not be received to identify the subject of the devise, as well as such declarations. Indeed it may be said that on this point a greater degree of reliability should be placed on the declarations contained in a written instrument, in reference to the description of property than where such declarations rest in the depository of slippery memory. And we find authorities holding that such former wills may be admitted in evidence to identify the object of the bequest. In re Feltham’s Trusts, 1 K. & J. 532; Re Gregory’s Settlement, 6 N. R. 282. Wharton says: “Wherever extrinsic facts are admissible, the testator’s writings may be included among such facts. Thus, where a testator directed in his will that all moneys which he had advanced or might advance to his children, 'as will appear in a statement in my handwriting,’ should be brought into hotchpot, the court, in addition to other extrinsic evidence of the nature and amount of the advances, admitted an unattested document, which, after the date of the will, had been drawn up by the testator with the apparent view of furnishing a guide to his trustees on the subject. On the same principle, proof of extrinsic facts will be admitted to identify an imperfectly executed testamentary paper, if the object be to incorporate that document with a duly attested codicil, which refers in general terms to the testator’s Oast will.”’ 2 Wharton on Evidence [3 Ed.] sec. 1003a; Whately v. Spooner, 3 K. & J. 542; Allen v. Maddock, 11 Mod. P. C. 427.

All these casos related to the object of the testator’s-bounty; but such cases are not distinguishable in principle from those where the purpose is to discover the-subject of the testator’s bounty.

In Doe dem. Beach v. Earl of Jersey, 3 B. & C. 870, an ambiguity was created by reason of the testatrix describing the subject of her devise as “all that my Briton Ferry Estate” with all the manors, etc., lying-in the county of: Glamorgan; but it was shown that there was “no manor of Briton Ferry.” A claim was made under this devise for lands which lay neither in the parish of Briton Perry, nor in the county of' Glamorgan; but in the county of Brecon, and it was ruled that certain old account books of the estate were-admissible in evidence in which was the following-entry: “Briton Perry Estate in the county of Brecon,” on proof that the lands and others had all gone by the-name of the “Briton Perry Estate.” On these authorities and for the reasons given, the unattested former-will should have, been admitted in evidence.

IV. ítelative to the prayer in the answer that the-mistake in the will be corrected, there is.no question but that a court of equity has jurisdiction to grant this sort of relief, upon a proper case made; .“but the-mistake, in order to lead to relief, must be a dear-mistake or a clear omission, demonstrable from the-structure and scope of the will.” 1 Story’s Equity Jur. [13 Ed.] 191, and cases cited; 1 Jarman on Wills [6 Ed.] 417, note 1, and cases cited.

The authorities show that the same degree of' certainty and strictness is requisite in correcting a mistake in a will as is necessary when words are to be supplied; otherwise the result would be to re-form the-will, which, of course, is not admissible. Goode v. Goode, 22 Mo. 518. But-in a case like this one, so plain in its facts, and so plain in its law, it' would seem that small need exists to invoke equitable interposition.

Y. The plea of the statute cannot avail the defendant, because his mother simply claimed under the will and not otherwise, and hence could not be said to hold adversely.

The result of our views is that the judgment is reversed and the cause remanded,

in which all concur, except Barclay, J., absent, and G-antt, J., dissenting.