Stokeley v. Gordon

Mason, J., delivered the following opinion: In what cases, and to what extent, parol testimony is admissible to explain ambiguities in wills, or to ascertain the intention of the testator dehors the will itself, are questions, the determination of which has ever been attended with the greatest difficulty. To this class of questions does the one presented upon this appeal belong. * . On the trial below it was admitted that Mrs. Craig, the testatrix, was seized of the real estate in controversy, and that ⁵⁰⁵ by her will, duly executed, she devised the same “to Anna Maria German, wife of Jonathan German,” and that Anna Maria was not in fact the wife, but the daughter of Jonathan German, but that his wife was named Catharine. In this condition of the case the question arose, whether parol testimony was admissible to enable a jury to ascertain whether the testatrix intended to devise the property to the daughter, or (he wife, or whether such parol evidence was to be excluded, and, from the will itself, arrive at the intention •of the testatrix?

Parol evidence was received, and the question of intention submitted to the jury, who found in favor of the daughter, and hence this appeal. In all cases it is necessary, in construing wills, that the court should be placed, by parol evidence, in possession of all the surrounding facts and circumstances connected with the testator, and which tend to show his situation in his relations to the persons and things to which his devise may refer. Therefore it would have been proper in this case to have shown, if the fact had not been admitted, that the name and description of the devisee did not concur. Properly speaking this is not that kind of evidence which is intended to explain written instruments, but is proof necessary to enable the court to understand the situation of the testatrix, and thus reach the meaning and application of the words employed in the will.

But the evidence which is sought here to be introduced, to show the intention of the testatrix, independent of the words of the will itself, and of such surrounding circumstances as have been alluded to, is a question of a very different nature. The inquiry then arises, in what cases extrinsic evidence of intention on the part of the testator is admissible: or, in other words, in what cases can ambiguities in written instruments be explained by parol proof? Patent ambiguities are those which appear upon the face of the writing itself: as for example, a will with the name of the devisee left iu blank. As a general rule such ambiguities cannot be explained, but if settled at all, must be from the face of the paper itself.

On the other hand a tatcfi.f, amMgiúhj is, where a writing is ⁵⁰⁶ perfect and intelligible upon its face, but from some circumstance admitted in proof, a doubt arises as to the applicability of the language employed to a particular person or thing; but, it is by no means an universal rule that general parol evidence is admissible to explain even latent ambiguities, or that such questions, in every instance, are.questions of fact for the jury. The present case presents an example of a latent ambiguity. Cases of latent ambiguity may be classed under three heads. The first is, when the description contained in a written instrument, of the person, thing or place intended, is applicable with equal certainty to each of several subjects, as a devise to “ my cousin John,” when the testator has two cousins John.

In cases belonging to this class, and in none other, (it would seem from the later authorities,) is general parol evidence of the intention admissible, such as the declarations of the testator at the time and before executing the will, the nature and character of his intercourse and relations with the different parties, and things intended to be described, and the like. This principle, in the broad language in which we have laid it down, has been recognised in a number of cases, but the rule upon the subject is perhaps no where so well and fully defined, as in the recent ease of Hiscocks vs. Hiscocks, 5 Mees. & Wels., 363, by Lord Abinger. He says: “Now, there is but one case in which it appears to us that this sort of evidence (the testator’s declarations, the instructions given for his will, and other circumstances of the like nature,) of intention can properly be admitted, and that is where the meaning of the testator’s words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but from some of the circumstances admitted in proof, an ambiguity arises, as to which of the two or more things, or which of the two or more persons, (each answering the words of the will,) the testator intended to express. Thus if the testator devise his manor of S to A, B, and has two manors of S,” &c. “ It appears to us, that in all other cases parol evidence of what was the testator’s intention ought to be excluded, upon this plain ground, that the will ought to be made in writing; and if his intention cannot be made to appear by the writing, explained by circumstances, there is no will.” ⁵⁰⁷ in a still later case, (1853,) Bernasconi vs. Atkinson, 23 Eng.

Law & Eq. Rep., 207, the same principle is thus broadly ■announced: “Now, I think it is quite plain, upon looking' through the authorities, that there is only one case in which any evidence can be introduced to show the intention of a testator, namely, where the description in the will is equally applicable to two different subject matters of devise, or to two different persons.” Again, in Wigram on Wills, (2 Lib. of Law & Eq.,) Prop, 7,page 101, it is said, “that courts of law, in certain special «ases, admit extrinsic evidence of intention to make certain the person or tiling intended, when the description in the will is insufficient for the purpose. These cases may be thus defined: — when the object of a testator’s bounty, or tire subject of disposition, (i. c., the person or thing intended,) is described in leans which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or tilings so described was intended by the testator.” To this class of cases belong those of Cheney, 5 Rep., 68; Couden vs. Clerke, Hobart, 32; Jones vs. Newman, 1 Wm. Black, 60; Doe vs. Westlake, 4 Barn, & Ald., 57; Fox vs. Collins, 2 Eden, 107; Brownfield vs. Brownfield, 12 Penn.

State Rep., 136, and others. In all those cases general parol evidence was properly admitted, including the declarations of the testator, to show his intention, or explain his meaning. And the reason of the rule is obvious, and it is because it would be impossible to form any general, sensible rule of interpretation, by which courts could settle such questions from the face of the will itself, and they would remain undetermined, if parol proof of intention were not permitted to go to the jury. In the case of Vernor vs. Henry, 3 Watts, 393 , Chief Justice Gibson says: “When the designation is by a name common to two or more, and without reference to circumstances of description, the question of identity is one purely of fact.” The second class of cases of ambiguity is, where the name, or description, or both, of the person or thing intended to be referred to, is in some respect so far incomplete or erroneous, as not to refer with precision to any particular person or thing, ⁵⁰⁸ and therefore the defect or omission has to be supplied by implication, as, for example, a. devise was to “Catharine Earnly,’-’ while no person of that name claimed the legacy, but one Gertrude Yardly did.

Beaumont vs. Fell, 2 Peere Wms., 140. The cases of Thomas vs. Thomas, 6 Term Rep., 671; Vansant vs. Roberts, 3 Md. Rep., 119 , and others, are also examples of cases of this character. It may be added that out of such cases have arisen the greatest difficulties and conflict of authorities, as to whether such questions were to be determined by the court or by the jury, and to what extent, if at all, extrinsic evidence was admissible to ascertain the testator’s intention. In many instances the same rule has been adopted as in cases falling under the first head, and the widest latitude has been allowed to the introduction of evidence to the jury, and the two English cases last cited are examples of the great extent to which courts have gone upon this point.

We have referred to them, not as authorities, (for they have not been sustained by later cases,) but as illustrations merely of our meaning. The case also of Camoys vs. Blundell, 1 House of Lords' Cases, 778, is one of this class, and the same case is also reported in 11 Simons, 467, and is more fully referred to hereafter. In modern decisions much less latitude is allowed in the admission of testimony of intention tiran was warranted by the earlier cases, and, if what we have said upon the first head be correct, the practice of submitting such questions as those which belong to cases arising under our second head to the jury at all, and especially upon the declarations of the testator, and other similar evidence, is not warranted by sound general principles, or by cases of later adjudication. All such questions are questions of construction for the court, and- must be determined from the face of the will itself, in connection only with such facts and circumstances as, in the language of Lord Coke, “stand well with the will.” In the case of Blundell vs. Gladstone, as reported in 11 Simon, 467, and which we have before said belongs to this class, the vice-chancellor says: “The sole question is, who was the person described as f Edward Weld, of Lulworth, in the county of Dorset, Esquire?’ That is the sole question, ⁵⁰⁹ and for the purpose of determining it I shall only advert to the evidence which 1ms been given, and very properly given, of the state of the Weld family, entirely rejecting from my consideration every thing else dehors the will, that can be at all said to bear upon what the testator’s intention was.

I look only at the facts of the case, namely, at those facts which show the state of the Weld family at the date of the will, and what the testator has said in his will.” See also 5 Pick., 512 , and particularly the case of Douglas vs. Fellows, 23 Eng. Law & Eq. Rep., 240. The case of Vansant vs. Roberts, 3 Md. Rep., 119 , was a case of this class, and there this court rejected parol evidence and decided the case from the face of the will, and the surrounding circumstances.

Then comes the third class of cases, as where tire name used applies perfectly to one person or thing, while a description employed applies as perfectly to another. To this class belongs the case we are now considering. Such also were the cases of Doe vs. Huthwaite, 3 Barn. & Ald., 632; Smith vs. Smith, 1 Edwards Chan. Rep., 189; Adams vs. Jones, 9 Eng.

Law & Eq. Rep., 269; Bradshaw vs. Bradshaw, 2 Younge & Col., 72; Vernor vs. Henry, 3 Watts, 385 ; Douglas vs. Blackford, 7 Md. Rep., 8, and others. The first matter to be determined, in a case like the present, is, whether the question is one of fact for the jury, or whether it is one of construction for the court? Upon principle it seems plain, that it must be one of construction, and should be settled by the court from the face of the will, in connection with the surrounding circumstances attending the transaction, although it is to he admitted, which it is to be regretted, that the authorities are very conflicting upon the subject, and any attempt to reconcile or harmonise them, would be a work of impossibility.

In speaking of wills being the subjects of construction for the court, of course it is only meant to embrace such cases whole the facts, which would be properly admissible in evidence, are admitted. In every instance when facts are denied, they must be found by the jury upon a hypothetical instruction from the court. Ch. J. Gibson, in Vernor vs. Henry, says, “that the ascertainment of intention from the will itself falls within the province of the court.” ⁵¹⁰ Here it may be remarked, if the principle laid down under our first head, upon the authority of Lord Abinger and others, be correct, then the present case is not one for the jury, or for the admissibility of parol evidence, because it does not fail within the rule there prescribed for the admission of such testimony.

Where, from the face of the will, in connection with the surrounding circumstances, a case is disclosed, upon which the judicial mind can take hold, and upon principles of reason or logic, arrive at a conclusion in regard to the testator’s intention, then the case is one of construction for the court, and not one of intention depending upon extrinsic evidence and to be found by a jury. The case before us is one of this character, while cases falling under our first head could never be determined upon any such principle, and must therefore be submitted to a jury upon general evidence of intention. And it may be added, that this question is a matter of construction for the court appears manifest from the circumstance, that as far back as Lord Bacon’s time, a rule of interpretation was adopted by which cases of this kind were to be determined, and that that rule, with certain qualifications, has been repealed and recognised down to the present period. If this therefore be a question purely of intention, to be governed by the peculiar facts of each case, as understood by different juries, does it not follow that the result would work a complete abrogation of the rule ?

In other words, where is the office of this or any other rule, if each case is to turn upon the intention of the testator independent of all rules? Lord Bacon states the maxim of law to be, “ventas nominis tollit errorem demoiistrationis;” which is, the truth of the name .takes away, or controls, the error of the description. As recently as 1849, Chief 3 ustice Gibson, in the case of Brownfield vs. Brownfield, already cited, adopts precisely the same rule., in this language: “Where a concurrent designation by name and description disagree, the rule is, that the former shall be taken to be more worthy in certainty.” And the same rule is commented upon in the still more recent English case of Camoys vs. Blundell, 1 House of Lords’ Cases, 778. •Of the rule Lord Brougham says, “I admit its authority as a general principle.”