Riggs v. Myers

1. A will described land devised as the “ south-east and south-west quarters of section 4. in township 60, range 38, in Holt county, Missouri.” The devisee of the south-west quarter was to have access to the “ Big Spring.” Held, parol evidence that the corresponding quarter sections of township fifty-nine, in the same range and county, were intended to he devised, was admissible, it appearing that the “Big Spring” was upon the south-east quarter of section 4, in township fifty-nine, and that the testator never owned or claimed any land in section 4 of township 60.

•Appeal from Holl Circuit Court. This was a suit brought by a portion of the heirs at law orT George Stewart, deceased, for a partition of the south-east andi south-west quarters of section four, in township fifty-nineJ range thirty-eight, in Holt county, Missouri,^ to which the said George Stewart was alleged to have died intestate. The defendantsftlaimed that George Stewart, by his last will, devised the whojn of said land to Mary, James and George W. Stewart, from whom they had purchased. The only provisions in the will of George Stewart material to this case are the following : 1. It is n3^ will and, desire that all my just debts and the expenses of my last illness bo first promptly paid, and the residue of my estate be divided as hereinafter mentioned. 2. To my wife, Mary Stewart, I give the entire use and enjoyment of the south-west Quarter of section four and the south-east quarter of section four, in township sixty, of range thirty-eight, lying in Holt county, Missouri, during her natural life, to have and to hold the same, and at her decease, to pass as hereinafter mentioned. 11. To my son, George W. Stewart, I give, at the decease of my wife, Mary Stewart, the south-west quarter of section four, in township sixty, of range thirty-eight, in Holt county, Missouri, with the privilege of using the water of the “ BigA Spring,” having free access to and from it, as he may wishi* 12. To James Stewart, I give the south-east quarter of section four, in township sixty, of range thirty-eight, in Holt county, Missouri, to have the same at the decease of my wife, Mary. In addition to the above, there was a devise to Robert S. Stev/art, of a quarter section of land upon which he lived, and a small pecuniary legacy to several of the testator’s children and grand children. These were all the provisions of the will. The defendants in their answer alleged that the draftsman of the will used the word “sixty” by mistake, instead of “ fifty - nine,” in the number of the township. At the trial, the de.fendants offered to prove that George Stewart, at the time of "his death, owned no other land than the two quarter sections described in the petition and the quarter section devised to Robert S. Stewart; that he never owned or claimed any land •in section fouiüf township sixty ; that there was no such land as the south-east and south-west quarters of section four, in township sixty, it being a fractional section, coiftaining less than one hundred acres, and not subdivided injg> quarter sec-, tions ; that the spring, commonly known as the •“ Big Spring,”! was located upon the south-east quarter of section four, in] township fifty-nine, range thirty-eight; that George Stewart -died upon said last named section ; that his soiH, George W. and James Stewart, always resided with him, and that his other ■children lived apart from him for many years before his death ; and that the two quarter sections of land in controversy composed at least three-fourths in v*alue of his whole estate. All this evidence was excluded, and after a judgment of partition, the defendants appealed to this court. The court erred in excluding the evidence offered by the defendants. In order to ascertain ¡the testator’s intention, we must look at the whole will, and .must also inquire into all the circumstances which surrounded him when he made his will. Parol evidence as to the nature, #marks, qualities, &c., of the subject devised is always admissible. (1 Greenl. Ev. §286-T, 289. Smith v. Bell, 6 Pet. 74. 13 Pet. 89. 7 Met. 205, 208, 209. 7 Met. 418. 2 Starkie’s Ev. 758, 768-9, 770, 1268. Wigram on Ev. §9,17, 61, 62, 64, 67, 70, 76,105, 180.) The evidence was admissible under tbe rule, “falsa descriptio non nocet, cum de corpore con-stat.” After rejecting the name of the township, enough remains in the will to show the property intended to be devised. ' (2 Yernon, 593. 1 Yesey, sr., 254. 1 Yesey, jr., 259. 3 Yesey, jr., 306. 3 Watts, 391. 2 Greenleaf’s Rep. 325. 9 N. Hamp. 58. 4 Mass. 205. 6 Johns. Ch. R. 607. 2 Dana, 49. 22 Wend. 150. 21 Wend. 653. 19 Johns. 449. 1 Wend. 548. 1 Richardson, 140. 2 Story, 286. 5 Greenl. Rep. 325. 2 N. Hamp. 285. 7 Yermont, 511. 13 Maine, 114. 8 East, 160. 1 Greenl. Ev. §301. 5 N. Hamp. 58.< 22 Pick. 410. 4 Metcalf, 84. 2 Starkie’s Ev. 770.) The evidence was admissible under the rule that parol evidence is admissible to explain a latent ambiguity. Tfee description in the will applies to no object in every particular, but in some particulars it applies to one object, and in some to another. (1 Phill. Ev. 531, 532, 533'. 6 Peters, 345. 9 Howard, 484. 5 Mees. & Weis. 363, 867. 5 Eng. Com. Law Rep. 408. 1 Johns. Oh. Rep. 190. 3 Taunton, 155. 2 Russ. & Mylne, 232. 3 Halstead, 72. Wigram on Ev. §184,186.) The evidence offered by the defendants was properly excluded. The intention of the testator is to govern, but it must be gathered from the words used by him in his will, and effect must be given to every clause and word in the will. Parol evidence is never admissible to show that he intended to devise a particular thing, and by mistake devised a different thing. This would be to repeal the statute concerning wills. (1 Johns. Oh. Rep. 231. 7 Monroe, 629. 2 A. K. Marsh. 51. Davis v. Davis, 8 Mo. Rep. 56. 4 Dessaus. 215. 7 Metcalf, 188. 1 Paige’s Oh. Rep. 291. Roberts on Frauds, 15.) Parol evidence is only admissible in the case of a latent ambiguity or a false description. In the first case, it neither takes from nor adds to the words of the will, but points out the person or thing to which those words apply. (11 Johns. Rep. 215. 7 Metcalf, 185. 4 Yesey Ch. Rep. 675. 1 Story’s Eq. §179. 10 Bacon’s Abridg. (Wills, G.) Talbot’s Cases, 240. 1 Greenl. Ev. §290. Carson v. Gheio, 7 Gill & J. 127.) The second case is where the ol^eet of the devise has been once sufficiently described without the description which is false. In this case, the false description is rejected, and the will stands, if the description left is sufficiently certain. If not, the will is void for uncertainty. (11 Johns. Rep. 218. Wigram on Wills, 17.) The defendants in their answer ask to show, not a latent ambiguity or a false description, but a mistake, which is never allowed. (6 Conn. Rep. 270.)