Long, &C. v. Duvall & Wife

• Citation: 45 Ky. 219
• Parties: Long, &c. <I>vs</I> Duvall and wife.
• Decision Date: 16 October 1845
• Court: Court of Appeals of Kentucky

45 Ky. 219

Long, &c. vs Duvall and wife.

Court of Appeals of Kentucky.

October 16, 1845.

APPEAL FROM THE WOODFORD CIRCUIT.

JUDGE BRECK delivered the opinion of the Court.

THE last will and testament of Armistead Long, dec'd, has this provision:

"I do give and bequeath unto my beloved wife, Paulina Long, the following named negroes, which I now own, namely: Charles, Peter, Jim, Cæsar, Abraham, Rachel, Dinah, Easter, Lavina, Dilsey, America, Charles, Malinda, Martha and Mealey, for the term of my said wife's natural life, and at her death, to her heirs forever, except in the event of my said wife's marrying again, and in that case, the said negroes to devolve to the children of my brother Zachariah and their heirs forever — it is understood that the increase of said negroes are to be left as above."

The widow of the testator having intermarried with Duvall, the appellants, the children of Zachariah Long, exhibited their bill in chancery, asserting claim to the slaves thus devised, upon the ground that the estate in them devised to the widow, was forfeited by her second marriage, and upon that event, that they immediately devolved upon them, the complainants.

Duvall and wife resisted the claim thus set up, and insisted that they had an estate in the slaves for the life of the defendant, Paulina, and the Circuit Judge being of that opinion, dismissed the complainant's bill, without prejudice to another suit after the death of Mrs. Duvall, and they have appealed to this Court.

Before we notice the main question in the case, the construction of the devise, we will dispose of a preliminary one in regard to the rejection by the Court below, of testimony introduced and relied upon by the complainants.

The object of this testimony was to prove that it was the intention of the testator by the clause referred to in his will, that his wife should enjoy no interest in the slaves therein enumerated, after her intermarriage, but from that time they should vest absolutely in the children of his brother Zachariah. This testimony was properly rejected. There is no such ambiguity in the clause in question, which the law permits parol testimony to explain. Parol evidence may sometimes be introduced to explain the meaning of words or to connect them with the proper subject matter, but it is wholly inadmissible to prove that the intention of the testator was different from what the words or expressions import; and it has accordingly been held that the testimony of the attorney who drew the will, could not be received in explanation of an apparent repugnancy in it, and that parol evidence is not admissible to show that the will is drawn different from the instructions of the testator. (See Powell on Devises. Law Lib. vol. 21. ...