Hawman v. Thomas

Construction of a, clause in a Will — Extrinsic evidence Inadmissible to show what property toas Intended to be embraced in the clause of a Will — Clause of a Will defective, but not wholly Void — When words may be Supplied in a Will. A will contained the following clause: “Second. — I give and bequeath unto Geo. W. Cromwell, Rachel O. Suman, and the children of Mary Dutrow (dec’d.) late (her share to be equally divided) wife — Joseph L. Dutrow, and Mrs. Margaret E. Dutrow, now of Baltimore, all children of my beloved wife (dec’d.,) the three first named, viz., Mr. Geo. W. Cromwell, Mrs. Rachel O. Suman, and the children of Mr.-Mary Dutrow (dec’d.,) they to have their mother’s share equally divided. The three shares to be equal, and Mrs. Margaret E. Dutrow, wife of George W. Dutrow, to have half as much as either of the three first (named children of my beloved wife, dec’d.,) including all money due me by note or otherwise, by either of the above named parties or their husbands, which — to be deducted from their respective shares. Mrs. Margaret E. Dutrow’s legacy to be held in trust for the use of the aforesaid Margaret E. Dutrow, by the trustee hereinafter named for that purpose, the said Margaret E. Dutrow to receive annually from said trustee the interest thereon at six per cent, per an-um during her natural life, after her death this legacy to pass to her children, equally distributed.” Held : 1st. That the foregoing clause was defective by reason of the failure or omission to state therein any property upon-which the bequest could operate, and there were no words or expressions elsewhere in the will by which the omission could be cured. 2nd. That extrinsic evidence was not admissible for the purpose of showing what property was intended to be embraced in said clause. 3rd. That the clause was not wholly void; but was valid and operative to give to the parties therein named the amounts of the debts due by them respectively to the testator. Words can never be supplied in a will, except when it is certain beyond reasonable doubt, what particular words were omitted; and this certainty must be reached by a construction of the terms of the will.

Appeal from the Circuit Court for Frederick County, in Equity. This appeal was taken from the decree of the Court below, refusing the injunction prayed for by the complainants, and dismissing their bill. The case is stated in the opinion of this Court. The simple and only inquiry here is, whether from an examination and construction of the instrument itself, aside from parol evidence of intention, it manifestly appears that the testator has in said will unmistakably indicated and substantially expressed the intention to bequeath all the residue of his property, beyond that disposed of in the first, third and fourth items to the appellees; that all this is so apparent, that the introduction of the words, “balance of my personal estate,” in the second clause, would be inserting only what is in effect already there by necessary implication ; that no other subject of disposition could have possibly been intended, and that the Court is constrained so to declare, to the disinherison of the heirs-at-law? Allen’s Ex’rs vs. Allen, et al., 18 Howard, 393 ; Smith vs. Bell, 6 Peters, 75 ; 1 Redf. on Wills, 466-7-9 and notes; Wigram & O’Hare, 2nd part, page 40 ; 1 Redfield on Wills, 453, 454; 1 Redfield on Wills, 454-463-5-6; Creswell vs. Lawson, 7 G. & J., 227; McKeehan vs. Wilson, 53 Penn. St., 74. Extrinsic evidence is permissible only to explain a latent ambiguity, which arises from facts de hors the instrument. Roberts on Frauds, 16, 19; 1 Greenleaf on Ev., 287-8-9, 90; Wigram’s Prop., VII; 1 Jarman on Wills, 316-17-18, 330, 346-7-8; 2 Wms. on Ex’rs, 989, 990, et seq., 1032, 1034; Wigram & O’Hara, Part 1, 205, 220, Part II, 57, 58; Negro Cœsar vs. Chew, 7 G. & J., 127. The difficulty in the second clause of the will in controversy, does not spring from an ambiguous expression, a misdescription, an equivocation, or in finding a proper subject-matter for language in itself intelligible, or from any of those circumstances de hors the instrument which sometimes embarrass the application of a testamentary intention, proper and effectual in form ; but the clause is absolutely null and ineffectual, because of a bald, unqualified omission to mention any property whatever, directly or indirectly, as the subject of its disposition. It is such an instance of omission, as the overwhelming weight of authority, both in England and in this country treats as incurable, and to remedy which parol evidence is pronounced inadmissible. 1 Jarman on Wills, 347 ; Fawcett vs. Jones, 3 Phil., 488. In the case of the Earl of Eewburg, in copying the will, the word “ Gloucester ” was left out by mistake. Parol evidence was offered to supply the omission, but refused with the remark, “to assume such jurisdiction would be to repeal the Statute of Frauds, and encourage the evil it was designed to prevent.” 5 Maddock’s Rep., 364. In Hunt vs. Hort, 3 Brown Ch., 311, it was ruled that ‘‘a gift by will, of pictures to Lady-is absolutely void, and shall not go to the master, or be supplied by parol evidence.” In Mohun vs. Mohun, 1 Swanston, 201, the words in question were, “I leave and bequeath to all my grandchildren, and share and share alike.” The bequest was declared void for uncertainty. Parol evidence was offered to show what was intended, and the Court was asked to transpose the words, “to all,” by simply reversing their order; but the. Court held it was a case in which there could be neither transposition, nor supplying of words to make the will effective. See also Hay vs. Earl of Coventry, 3 Durnford & East., 85 ; Hiscocks vs. Hiscocks, 5 M. & Welsby, 362 ; Flint vs. Hughes, 6 Beavan, 342 ; Miller vs. Travers, 8 Bingham, 244; Adams vs. Jones, 9 E. L. & Eg., 269; Douglas vs. Fellows, 23 Eng. L. & Eq., 240 ; Tucker vs. Seaman’s Aid Society, 7 Metcalf, 205, 206, 207, 208; Mann vs. Mann, 1 Johns. Ch., 231; Crocker vs. Crocker, 11 Pick., 257; Brown vs. Thorndike, 15 Pick., 400; Worman vs. Teagarden, 2 Ohio St., 381; Kinsey vs. Rhem, 2 Iredell, 192; Jackson, ex dem. Van Vichlen vs. Sill, 11 Johnson, N. Y., 201 ; Mann vs. Mann, 14 Johnson, 1; Hyatt vs. Pugsley, 23 Barbour, 291 ; Abercrombie vs. Abercrombie, 27 Ala. N. S.,495 ; Wootton vs. Redd’s Ex’r, 12 Grattan, (Va.,) 206-7-8; Kelley vs. Kelley, 25 Penn., 460; Beall vs. Holmes, 6 H. & J., 224, 228; Bowly’s Lessee vs. Lammot, 3 H. & J., 4; Fouke vs. Kemp’s Lessee, 5 H. & J., 135 ; Trippe vs. Frazier, 4 H. & J., 446; Dougherty vs. Monett’s Lessee, 5 G. & J., 459. In Marshall vs. Haney, 4 Md., 506, the Court defines what constitutes a patent and a latent ambiguity, respectively, and the office of parol evidence in connection therewith. The second clause in Peter Thomas’ will, if it presents an ambiguity, and is not an absolute blank, is clearly an instance of patent, as contradistinguished from latent ambiguity, as the difficulty is presented on the face or structure itself of the will. It is laid down in Marshall vs. Haney, that patent ambiguities appear on the face of the writing itself, and as a general rule cannot he explained or removed by extrinsic evidence. In such a case, the Court is to ascertain the meaning of the toords actually employed, not the secret intention of the party as contra-distinguished from what his toords import. Latent ambiguities are first created by extrinsic evidence, which afterwards renders extrinsic evidence necessary to explain or reconcile them. See also Walston’s Lessee vs. White, 5 Md., 304-5. The case of Harris vs. Pue, Adm’r, &c., 39 Md., 548, has resemblance to the case at bar. In that case, the rest of the will was sustained, notwithstanding some unfilled clauses of bequests, which were blank as to the subject of the gifts. The Court says : “In such case, the existence of the blank does not defeat the will, but the particular bequests to Father Griffin, Father Chappel and Hettie Shields, being in blanh, must.fail for uncertainty ; the other bequests being clearly expressed, and being in no manner connected with or dependent upon those in blank, must have effect. This rule is clearly stated by all the Judges in Tilghman vs. Stewart, 4 H. & J., 156.” Looking to the will itself of Peter Thomas, can the Court positively declare, that from the face of that instrument it manifestly appears, that the will of the testator was to bequeath to the appellees the property they claimed, to the disinherison of the heirs ; that the testator has used words apt and adequate to express that intention ; that the second item embracing the alleged bequest was designed to operate as a residuary clause; that the omission of a subject of disposition therein, is not a substantial defect, but a mere verbal slip; that the only words that .correspond to the plainly disclosed intention of the testator are, “the balance of my personal estate;” that it is impossible he could have contemplated any gift or bequest other than these words import, and that therefore they should be inserted in the will ? Of course, if the Court shall deem that the omission in the will, in the present instance, is of such a character, and relates to such a subject-matter that it cannot be supplied at all — as we respectfully submit is the rule— that will be conclusive of the appellees’ case. And further, if the testator has not manifested his intention to give something to the appellees, in the will itself, no mgtter what his actual intention and desire may have been, the clause mast fail. Or if the Court shall believe that something else than “the balance of my personal estate,” are the proper words to fill up the omission, or shall be in doubt whether some other kind or amount of property might not have been in the testator’s contemplation, or shall not be absolutely convinced that the words mentioned are the true and intended ones to the exclusion of all others, the judgment below cannot be sustained. That Peter Thomas intended, so far as mental purpose is implied, and as that term is understood in its popular signification, to leave a portion of his property to the appellees, there can be no reasonable question, but that he has duly manifested and effectuated such intent in his written will, or that it can be unequivocally gathered from a legitimate construction of the will itself what part of his estate he intended they should have, is confidently denied. Prom an inspection of the face of the will itself, nowhere is it manifested, and by no construction can it be gathered, what was the subject of disposition omitted from the second clause. The clauses of the will are independent of each other, and relate to different subject-matters. If the clause in question be uncertain, it can only be so . in regard either to the persons intended to take under it, or the thing or subject-matter intended to be given. The legatees, the persons intended to take, are named and described in the clause in question ; they are the children and grandchildren of the testator’s wife; there is no uncertainty in reference then to the persons intended to take. If an uncertainty exist at all, (supposing there was an intention on the part of the testator to give something by this clause,) it must be an uncertainty in respect to the subject-matter which the testator meant to dispose of — in respect therefore to his intention. The inquiry then is, what was the testamentary intention of Peter Thomas, of G., not as an independent fact,' hut as appearing on the face of the will, in respect to the property designed to he disposed of by the second clause of the will? If absolute certainty were required, there never could he a question in regard to the true construction of a will, because the mere suggestion of a doubt with respect to its meaning would exclude an absolute certainty in the premises, and consequently, avoid the will on the ground of uncertainty. But, as doubts do frequently arise, and as uncertainties are often encountered, which Courts are constantly obliged to solve, and in doing so, to ascertain the meaning and intention of the testator, it is proper to inquire: 1st. What are the rules resorted to by the Courts in the construction of wills, and therefore in the ascertainment of the testator’.s intention ? 2nd. What is the effect of that intention when discovered? 3rd. What is the intention to be gathered from the will in this case, either from the face of it alone, or from the face of 'it. viewed in the light of surrounding circumstances ? 4th. What, when the intention is discovered, the Court will do to carry it into effect ? 1st. Intention is a mere act of the will, and its existence is manifested only by its results. Exteriora acta indicant interiora animi secreta. Consequently, the intention of a testator is to he ascertained from the whole will taken together. Iglehart vs. Kirwan, 10 Md., 563 ; Bowly’s Lessee vs. Lammot, 3 H. & J., 7. The intention is also to he gathered from all the provisions of the will developed by the light of surrounding circumstances. Taylor vs. Watson, et al., 35 Md., 524; 1 Phillip’s Ev., 543, 544, 545. The Court must put itself in the place of the testator to see how the terms of the instrument affect the property or subject-matter. 1 Greenleaf’s Ev., sec. 287. Therefore, if the will on its face does not display with sufficient certainty the testator’s intention, it is competent to inquire into the surrounding circumstances to aid the Court. Smith vs. Bell, 6 Peters, 75 ; Wigram, Prop. V, side page 51; Ib., side page 57, placitum 71. 2nd. The intention when found, will control the construction of the testament. Smith vs. Bell, 6 Pet., 68 ; Dashiel vs. Dashiel, 2 H. & G., 127; Swinb. on Wills, 10; Saunders vs. Mathewson, 11 Conn., 149. 3rd. What was the testamentary intention of Peter Thomas, of G.? What did ho intend, as indicated by the will itself, to bequeath to the children and grandchildren of his deceased wife ? What has he bequeathed to them according to the construction of his will ? The demurrer admits that the decedent stood towards the legatees named in the second clause of his will, in loco parentis, and was almost a stranger to the complainants. That he had no children of his own, and that the persons nearest and dearest to him, were the offspring of his wife. This is clear from the bill of complaint and the will, without regard to the answer. It is shown by the answer, that the testator had real estate, and a large amount of personal property, consisting of mortgages, bonds, stocks and other securities. It is manifest from the will, that of this real and personal property, he has only specifically given (1,) 66 shares of bank stock to his niece, Catharine Thomas, who lived with him, but is now dead; (2,) all his real estate to his wife’s grandson, Joseph Dutrow, (3,) and certain bed-clothing, &c., without declaring to whom. Consequently, the great bulk, and far the largest and most valuable portion of his estate, consisting wholly of personal property, remains after deducting these, the only specific dispositions. But aside from and independent of these circumstances, it is morally certain, from the face of the will, that he intended to give the parties named in the second clause of his will something; otherwise they would not have been named therein, and a fortiori not in the manner they are named. He certainly then intended to give them something. What was it ? In the will itself, he has imperfectly, though sufficiently described it, because he has said: That it was to he greater than the debts due by the legatees to him — those debts were to he deducted from the shares of each ; which could only he done where the thing deducted is less than that from which it is subtracted. That that which he gave, in the second clause was something hearing interest — ivas personal property — because, he says, that the share of Margaret E. Dutrow shall he held in trust by his executor, and that she shall he paid six per cent, interest thereon during her life, &c.; and the same terms of description with reference to quality that are used to designate this one share, are in the same clause applied to the shares of the other legatees. If these terms indicate that the one share is personal property, treating in the same connection of the other shares, and coupling them all together, the others must he of the same quality. Noscitur a sociis. That it was to he something divided into four shares, the one of which should he half as much as either of the other three, and the three others to he equal. When devising, in the third clause, his real estate, he uses different language, showing thereby, that in the two clauses, he was not dealing with the same character of property. It was something, one share of which, that is to say, one of the four shares into which the whole was divided in the proportion above stated, was to be held in trust for the period of a life, and then equally distributed to the children of the cestui que trust. That it was something, one share of which he called a legacy, and that one share being a part of the whole, and designating by the description used, and the difference between the one used and that employed when disposing of his real estate, only personal property, the whole, of which the legacy was a part, must be personal property. That it was to be something not specifically given to others. But he had nothing left to give, after satisfying the specific legacy of 66 shares of bank stock, and the devise of the real estate, except the personal property, of which lie was possessed. He must have intended to give something that he had, because nemo dat qui non habet. How, if he intended to. give anything, (and that he did, is manifest from the fact of his naming the parties and making his will,) and if that intention is to be regarded, (and that it is, is apparent from the authorities before quoted,) then it is clear the balance of his property beyond that mentioned in the first, third and fourth clauses of his will, is that which he intended to dispose of, and did dispose of by the second clause, because there is nothing else upon which the will can operate. By operating on that balance it can prevail. Siemer vs. Siemer, et ux., 2 G. & J., 100; Broom’s Leg. Max., 238, side page. Any other construction would cause the testator to die intestate of the bulk of his estate, in spite of liis plain and unmistakable intention not to do so ; and would, therefore, absolutely ignore and set at naught the justly controlling influence of that intention. Creswell vs. Lawson, 7 G. & J., 245 ; Chelton vs. Henderson’s Lessee, 9 Gill, 437. 4th. ‘To effectuate therefore the clear intention as apparent upon the whole will, words and limitations may be transposed, supplied or rejected.” 2 Williams on Ex’rs, 1084, and authorities there cited; recognized and adopted in Janney vs. Sprigg, 7 Gill, 202, 210 ; Hawkins on Wills, page 4, pro. 4, and cases in note 2 : Clark vs. Tennyson, 33 Md., 82 ; Redfield on Wills, 454, 464, (Edition of 1864; Hone vs. Van Schaick, 3 Barb. Ch., 488; Parker vs. Tootal, 11 House of L. Cases, 143. Where the words used were “all my personal property,” and it was clear beyond all doubt upon the face of the will, that the testator meant by those words, the real property over which he had an absolute present power of disposition, it was held that the freehold passed by this description. Doe, dem. Tofield vs. Tofield, 11 East., 246; 2 Williams on Ex’rs, side page 709. The rule does not prescribe what words may be supplied, it merely provides that words which are necessary to effectuate the testator’s intention will be supplied. The Court may also transpose words in a will. Linstead vs. Green, 2 Md., 82. With so clear an expression of the testator’s intention, it is easy to supply the words necessary to make the clause in question what the decedent intended'it to be, viz., a residuary clause. By supplying the words “balance of my personal estate,” the whole will is made harmonious and the object of the testator gratified. As sustaining this construction see Eatherly, et al. vs. Eatherly, et al., 1 Coldwell, (Tenn.,) 462, a case strongly resembling the one at bar; also, Hawkins on Wills, page 7, and cases cited; Towns vs. Wentworth, 11 Moore’s P. C. C. 526 ; Townsend vs. Downer, 23 Vermont, 225 ; Kellogg vs. Mix, 37 Conn., 243.