McAlister v. Butterfield

Elliott, O. J.

The error assigned is, that the court erred in sustaining the demurrer to the complaint.

The question presented in the case arises on the fifth clause of the will, in which the testator charges his daughter Ereelove with twenty-one hundred dollars, and his daughter Joanna with sixteen hundred dollars, as having-been received by them from him prior to the execution of the will. It is alleged in the complaint, that Ereelove had ■ only received the sum of three hundred dollars, and that Joanna had received no advancement whatever. The object of the complaint is to reform the will, by correcting the alleged mistake, and to thereby exclude the advancement charged to Joanna, entirely, and reduce that charged to Ereelove to three hundred dollars, in making the distribution under the will.

The alleged mistake is not apparent on the face of the *28 will, nor is there anything obscure or ambiguous in its language in reference to the several amounts so advanced; on the contrary, it is clear and positive. Hence the mistake, if any, must be proved by parol and extrinsic evidence, dehors the will; which is clearly inadmissible.

In the case of Mann v. Mann’s Executors, 1 Johns. Ch. 231 , Chancellor Rest, in delivering the opinion, said: “It is a well settled rule, that seems not to stand in need of much proof or illustration, for it runs through all the books from Cheyney’s Case down to this day, that parol evidence cannot be admitted to supply or ■ contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases: 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described; and, 2. To rebut a resulting trust. All the cases profess to proceed on one or the other of those grounds.”

The whole question is quite fully discussed in the 10th chapter of Redfield on Wills (p. 498), in which many of the adjudicated cases, both English and American, are referred to, and the rule is stated thus: “It seems perfectly agreed, that parol evidence is not admissible, to supply any omission or defect in a will, which may have occurred through mistake or inadvertence.” See, also, 2 Phillipps Ev. 637.

The case of Jackson v. Payne’s Executors, 2 Met. Ky. 567, was very similar to the case at bar, and involved precisely the same question. There the residuary clause of the will was as follows: “It shall be equally divided between my son Remus, and my daughters Eliza Estill, Anna Jackson, and Lydia Taylor, subject to the limitations, conditions, and trusts hereinafter provided.” The will contained this further clause: “I have made advances to those four children, which advances I deem about equal.” Jackson purchased a tract of land, at a sale thereof by the executors of the testator, and, when sued for an instalment of the purchase money, set up in his answer, that the testator by *29 his will “ contemplated and intended an equal distribution of his estate among all his children, but through inadvertence and mistake in estimates of amounts advanced, his will, if literally carried out, would leave defendant’s wife, Anna, who is one of the testator’s children, with less than any of his other children to the amount of at least seven thousand five hundred dollars.” Other facts were alleged to show how the error had occurred, &e. It was held, that the express terms of the will could not be contradicted or explained by parol testimony, and that a court of equity had no power to alter or modify it. In discussing the question it is said, in the opinion of the court, that “the general rule is, that parol evidence of the intention of a testator is inadmissible for the purpose of explaining, contradicting, or adding to the contents of a will; but that its language must be iutei’preted according to its proper signification, or with as near an approach thereto as the body of the instrument, and the state of the circumstances existing at the time of its execution, will admit of. The doctrine is, that courts of equity have jurisdiction to correct mistakes when they are apparent upon the face of the will, but the mistake must be apparent on the face of the will, or must he one that may be made out by a proper construction of its terms, otherwise there can be no relief. Parol evidence, or evidence dehors the will, is not admissible to vary or control the terms of the will, although it is admissible to remove a latent ambiguity.” See, also, Brown v. Thorndike, 15 Pick. 388 ; Bond’s Appeal, 31 Conn. 183 ; Hiscocks v. Hiscocks, 5 M. & W. 362; Newburgh v. Newburgh, 5 Madd. 364; Miller v. Travers, 8 Bing. 244; Walston’s Lessee v. White, 5 Md. 297 ; Judy v. Williams, 2 Ind. 449 .

But it is claimed, that the statement in the will, of the amounts received by the appellants, can only be regarded as the recital of a fact, and that such a recital is only prima facie evidence of the fact recited, and may be disproved by evidence aliunde. If the charge in the will of advancements to the appellants were merely the recital of a fact, as *30 it is claimed, still, as the appellants claim under the will, they would, it seems, be estopped from denying the truth of the recital.

In Denn v. Cornell, 3 Johns. Cas. 174 , the will of the testator contained the following clause: “And whereas I have conveyed to my son Cadwallader my lands in Coldenham, and to my son David, my lands in the township of Flushing, I give and devise all my remaining lands to my sons Cadwallader and David, and to my daughter,” &e. It was held by Chancellor Kent, that the heir of the testator was estopped to deny that the premises referred to in the recital were conveyed to David; that it was an act of the ancestor to whom the heir was a privy, and he was therefore es-topped to deny its truth. See, also, Washb. Real Prop. b. 3. ch. 2, § 6, 29.

But here the matter sought to be contradicted cannot be regarded simply as the recital of an independent fact. It is more; it charges the appellants with certain sums received by them from the testator, and thereby limits the interest in the estate devised to them, and lessens the amount that would otherwise have been given to and received by them on distribution. It is a limitation upon the interest of the appellants in the estate devised.

This they seek to remove by 'evidence dehors the will, to' thereby increase their interest in the estate devised. Such evidence would be a clear violation of the rules already-stated.

In argument, much stress is placed on the concluding words of the clause, viz: “I want my heirs to be made equal, and the remainder of my estate to be equally divided between my heirs.” Construing the whole clause together, it is clear that it was the intention of the testator that, in the distribution of his estate, the advancements charged should bo taken into the account, and the fund arising from the sale of the lands should be so distributed as, when taken in connection with the amounts charged as having been advanced to a part of the heirs, would make them all *31 equal. A preceding part of the clause, after providing for the sale of the lands, directs that the “proceeds of said sale be equally divided between my lawful heirs, after deducting the amount that the following named heirs have received.” This language, if literally construed, would not make the heirs equal, which was the evident intention of the testator, but the language used did not clearly express that intention; and hence the concluding words, which were, doubtless, intended to explain what was meant by the words previously used, “ after deducting the amount that the following named heirs have received;” and such is clearly the effect of the concluding words of the clause.

O. F. McNutt and A. Ennis, for appellants. S. Glaypool and F. P. A. Fhelps, for appellees.

The court did right in sustaining the demurrer to the complaint.

The judgment is affirmed, with costs.