Thomson v. Thomson
| Decision Date | 20 March 1893 |
| Parties | Thomson et al. v. Thomson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.
The plaintiffs, who are respectively the brother, sister and brother-in-law of the defendant, brought ejectment for an undivided two sevenths of this tract of land, to-wit: The southeast quarter of section 1, township 51, range 20, and also that portion of the northeast quarter of the southeast quarter of the same section, township and range that lies north of the public road; but as to this, all claim was abandoned at the trial.
The forty in controversy, for the purpose of ready designation has been marked on the subjoined plat "X," and the part sued for but disclaimed at the trial is marked "Y."
This litigation grows out of a controversy over the proper construction to be given to the following clause in the will of Robert Y. Thomson, the father and father-in-law of the respective litigants: "It is my will that my beloved wife, Lucy T. Thomson, shall have for her own proper use and benefit the tract of land on which I now reside, described as follows: Beginning in the center of the east end of the lane on the Glasgow and Lexington road, thence north to the center of section 31, township 52, range 19 west, south of Missouri river, thence west one half mile to the center of said section on the west side, thence south to the southwest corner of said section, and still south one quarter of a mile (thence west one quarter of a mile), 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 to the center of said road, thence east with said road in the center thereof to the beginning, during her natural life."
The will was executed in 1863, and the testator died the same year. To Zachary Taylor Thomson, the defendant, was devised the remainder in the home tract after the termination of the life estate of his mother, who died in 1889. The letters A B C D mark the boundaries of the home tract, and, so far as they go, there is no dispute. From D, southward, the dotted lines represent the calls as contained in the will, and the lines around the litigated forty marked D E F show the north and west lines of that forty, and the letter G shows the point where the Lexington and Glasgow road turns south, and is one quarter of a mile west from the dotted line, and one eighth of a mile from the southwest corner of the forty which corner is marked F. The lines designated by the letters D E F G show the lines claimed by defendant to be correct. There was no contention at the trial as to the correctness of the lines marked A B C D F G H A, or that they outlined and circumscribed the residence tract of the testator, as he regarded it when the will was drawn.
The part of the will already copied, inclusive of the words in parentheses, shows the description of the land as contained in an informal will made in 1860, and duly signed by the testator, on which is written just above the signature, as concluding words: "The above is my will, written by myself and my son Quincey, nobody else knowing anything about it." Removing the words in parentheses leaves the instrument just as it was formally executed in 1863.
There was testimony showing that the testator had used and regarded the "X" forty as part of his home tract and had fenced in that forty with that tract, and there was some testimony to the contrary.
There was evidence also showing that the widow of the testator had continuously occupied the "X" forty as part of the home tract, claiming it under the will ever since the death of the testator, and that since her death in 1889, her son the defendant, had been the occupant, and that some years after the testator died, Jenkins, one of the co-plaintiffs discovered, as he thought, a fault in the description of the land, which the heirs corrected by making a quitclaim to their mother; but this deed the plaintiffs, Thomson and Mr and Mrs. Jenkins, refused to sign.
One clause of the will contained a provision for the sale of the remainder of the land of the testator, after satisfying the different devises contained in the will, and it seems that something less than one hundred and forty acres of land lying remote from the home tract was sold. Some of the tracts marked on the plat by initials show tracts of land devised by the father to his sons, but the will shows that several tracts had theretofore been conveyed to different sons or children; but as such tracts are not described by numbers or otherwise, it is impossible to tell where they lie. Mrs. Fowler however testifies that her father owned the land that joined him on the west, south and east.
The answer set up a general denial and also an equitable defense based on the facts aforesaid; asserted that there was a mistake in the description of the land; claimed that it should be described as in the informal will; asked the court to supply the words in parentheses and correct the mistake. The statute was also pleaded in bar of the action.
After the evidence was all in the defendant asked for a declaration of law that plaintiffs were not entitled to recover, which the court refused, and thereupon gave judgment for the plaintiffs; hence this appeal.
[SEE PLAT IN ORIGINAL]
Reversed and remanded.
Shackelford & Montague for appellant.
(1) The first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of testator expressed in will shall prevail, provided it be consistent with rules of law. South v. Bell, 6 Pet. 75; Nichols v. Boswell, 103 Mo. 151. (2) It is respectfully submitted as to whether all distinctions between latent and patent ambiguities are not abolished by the statute and mistakes corrected to accord with manifest intention of testator, as in other equitable proceedings. Revised Statutes, 1879, sec. 4008. (3) There can be no doubt that the testator intended to include the forty acres in the general description of "The farm on which I reside." If this was his intention, as gathered from the whole instrument, the words "thence west three eighths mile," should be supplied in order to effectuate that intention. Nichols v. Boswell, supra; 1 Jarman, 456, and the authorities cited in first case; Small v. Field, 102 Mo. 104. (4) The evidence of a draft of a will made by the testator and proven to be in his handwriting, and in which the meandering was correct is clearly admissible to show his intention as to what he meant by his farm on which he resided. Thompson v. Ish, 99 Mo. 160. (5) Words evidently omitted may be supplied by intendment or by reference to co-relative parts of the will. In this case the latter description cannot be consistent without supplying the omitted course. 1 Redfield on Wills, 437; Willard's Equity, 490; Vanechen v. Keater, 63 N. Y.; Hammett v. Hammett, 43 M. D. 307; Cornter v. Stagg, 27 N.J.Eq. 305; 6 Wait's Actions & Defenses, 382, 383. (6) The attempted meanderings make an imperfect description, and is clearly a latent and not a patent ambiguity, and can be explained by parol evidence. 1 Strong on Equity Jurisdiction, 172. (7) A former draft of will is admissible in evidence to show intent of testator. Mueller v. Ass'n, 73 Mo. 242, affirming 5 Mo.App. 390; Langston v. Langston, book 8, p. 167. (8) The court may look beyond the face of the will when there is an ambiguity on its face, and words evidently omitted in description may be supplied by construction. 2 Black, 408; Rutherford v. Tracy, 48 Mo. 325; Hoffman v. Reihl, 27 Mo. 554. And when one part of description is false and impossible, the false part should be rejected and by rejecting that a perfect description remains; the false part should be rejected. 2 Wait's Actions & Defenses, 503; Kenny v. Kenny, 3 Sett. 302. (9) The term "farm on which I reside" is a definite description, and parol evidence may be had to show what testator meant by "farm on which he resided." 20 Ohio St. Rep. construing will of James Taylor. Taylor v. Boggs, 516. (10) When a general description of property devised is given, followed by a specific description, as in this case, facts can be found to establish a mistake in specific description. Pocock v. Reddingin, 9 N.E. 473.
John P. Strother for respondents.
(1) A will cannot be amended in matter of description by extrinsic evidence. Fitzpatrick v. Fitzpatrick, 36 Iowa 674; Abbott's Trial Evidence, sec. 88, p. 134; 1 Redfield on Wills, 497-8, secs. 3, 5, 6, 7, 8, 9, 10; also sec. 24, p 620-21; Bradly v. Bradly, 24 Mo. 311; Kurtz v. Hibner, 55 Ill. 514; Estate of Garraud, 35 Cal. 336. Isaac Grant Thompson deduces two rules from the authorities including Wigram's fifth, sixth and seventh propositions in the first of which he says, "No evidence of mere mistake on the part of the testator or the draughtsman is admissible," and in the second of which he says, "No words can be added to any description." Conclusion of note on page 673 of 8 Am. Rep; Davis v. Davis, 8 Mo. 56. Here defendant seeks to add the words, "thence west one quarter of a mile," whereby he endeavors to add forty acres of land to his possession. (2) There is no latent ambiguity in this will and parol evidence is not admissible to explain an ambiguity on the face of a will. Davis v. Davis, supra; Gregory v. Cowgill, 19 Mo. 415. The doctrine of this court is that a court of equity "has no jurisdiction to reform a will on the ground of a mistake in the draughtsman." Goode v. Goode, 22 Mo. 518. The great weight of authority is against parol evidence being admissible to vary or amend a will. Barnes v. Simms, 5 Ired. Eq., 392; Griscom v. Evans, 11 Vroom, 402; Sherwood v. Sherwood, 45 Wis. 357; Reynolds v....
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