Alford v. Bennett

• Decision Date: 21 June 1917
• Docket Number: No. 11320.,11320.
• Parties: ALFORD et al. v. BENNETT et al.
• Court: Illinois Supreme Court

279 Ill. 375

117 N.E. 89

ALFORD et al.

v.BENNETT et al.

No. 11320.

Supreme Court of Illinois.

June 21, 1917.

Appeal from Circuit Court, Livingston County; G. W. Patton, Judge.

Suit by Mira A. Alford and others against Jennie Bennett and others. From a decree, defendants appeal. Affirmed.Joseph A. Jenkins, of Danville, for appellants.

Stevens R. Baker, of Pontiac, for appellee McDonald.

Bert W. Adsit, of Pontiac, for appellee Alford.

E. A. Agard, of Fairbury, for appellee Bennett.

CARTER, C. J.

A bill was filed by some of the appellees herein in the circuit court of Livingston county, praying for the coustruction of the will and codicil of David S. Crum, deceased, and for the ascertaining and determination of the interests of certain parties thereunder in the estate of the testator, and for the construction and determination of the provisions and conditions of certain trust estates created thereby. After a hearing the circuit court entered a decree construing said will and codicil. This appeal is prosecuted from that decree.

It is first insisted by appellants that the trial court erred in construing that portion of the eighth paragraph of the will which reads:

‘I give, devise and bequeath to my daughter Mira A. Alford the north twenty-five acres of the northeast quarter of section 17, in Belle Prairie township, Livingston county, Illinois,’ also certain lands in Indiana.

The testator, at the time of making his will in 1905, was the owner of the N. W. 1/4, the E. 1/2 of the S. W. 1/4, the W. 1/2 of the S. E. 1/4, and the N. E. 1/4 of the S. E. 1/4, all in section 17, township 35 N., range 6 E. of the third principal meridian, in the town of Belle Prairie, in said county. He also owned at that time a quarter section in section 9 in another township in said county. The testator, at the time of making his will, owned no part of the N. E. 1/4 of section 17, in said Belle Prairie township, but he did then own all of the N. E. 1/4 of said section 17. In the first seven paragraphs of the will the testator, before making the devise in the eighth paragraph, had devised to his children all his real estate in the state of Illinois, excepting only the north 25 acres of the N. E. 1/4 of the N. W. 1/4 of said section 17. In the seventh paragraph, immediately preceding the devise to said Mira, the testator devised to his daughter Lina 15 acres ‘off the south side of the N. E. 1/4 of the N. W. 1/4 of section 17,’ etc., leaving remaining, as undisposed of, the north 25 acres of said N. E. 1/4 of the N. W. 1/4.

Counsel for appellants insists that a devise of real estate which the testator is alleged not to have owned is not effective to carry to the devisee real estate the testator did own at the time of his death; that wills cannot be reformed to express the supposed intention not appearing in said will. Appellants rely in support of this contention upon the following cases decided by this court: Kurtz v. Hibner, 55 Ill. 514, 8 Am. Rep. 665;Bishop v. Morgan, 82 Ill. 351, 25 Am. Rep. 327;Bingel v. Volz, 142 Ill. 214, 31 N. E. 13,16 L. R. A. 321, 34 Am. St. Rep. 64;Williams v. Williams, 189 Ill. 500, 59 N. E. 966;Vestal v. Garrett, 197 Ill. 398, 64 N. E. 345;Lomax v. Lomax, 218 Ill. 629, 75 N. E. 1076;Clancy v. Clancy, 250 Ill. 297, 95 N. E. 141;Lawrence v. Lawrence, 255 Ill. 365, 99 N. E. 675, and especially upon Graves v. Rose, 246 Ill. 76, 92 N. E. 601,30 L. R. A. (N. S.) 303, where the previous decisions of this court are reviewed and distinguished. Counsel for appellees contend that the trial court, in the light of the extrinsic evidence introduced in the record, rightly construed said section 8 of the will, on the ground that, while the words of the will cannot be added to, yet so much as is false may be stricken out, if enough remains, when read and construed in the light of the facts and circumstances and with the false words eliminated, to identify the property-citing and relying on the following decisions in this state as upholding this contention: Decker v. Decker, 121 Ill. 341, 12 N. E. 750;Huffman v. Young, 170 Ill. 290,49 N. E. 750;Whitcomb v. Rodman, 156 Ill. 116, 40 N. E. 553,28 L. R. A. 149, 47 Am. St. Rep. 181;Douglas v. Bolinger, 228 Ill. 23, 81 N. E. 787,119 Am. St. Rep. 409;Felkel v. O'Brien, 231 Ill. 329, 83 N. E. 170;Gano v. Gano, 239 Ill. 539, 88 N. E. 146,22 L. R. A. (N. S.) 450; and especially, also, upon the reasoning of Graves v. Rose, supra, where this court, in reviewing Decker v. Decker, supra, approves (as claimed by counsel for appellees)the reasoning of that decision which makes the case of Graves v. Rose, supra, especially applicable to the facts of this case. Counsel for appellees also insist that the extrinsic evidence offered was admissible to determine the existence of a latent ambiguity in the will, and to enable the court to look upon the will in the light of the surroundings and circumstances of the testator at the time it was made, for the purpose of determining his intention, but not to change its terms. Decker v. Decker, supra; Cochran v. Cochran, 277 Ill. 244, 115 N. E. 142.

A latent ambiguity has been defined as one ‘which arises, not upon the words of the will, deed, or other instrument, as looked at in themselves, but upon those words when applied to the object or subject which they describe.’ 2 Am. & Eng. Ency. of Law (2d Ed.) 288. It was said by this court in Decker v. Decker, supra, 121 Ill. on page 350, 12 N. E. 750, that a latent ambiguity can only arise by evidence dehors the record, and it is frequently stated that because of this fact extrinsic evidence dehors the record, of the same character, may be resorted to for its removal. 2 Underhill on Wills, § 910; 2 Am. & Eng. Enc. of Law (2d Ed.) 296. In Patch v. White, 117 U. S. 210, 6 Sup. Ct. 617, 29 L. Ed. 860, the court said a latent ambiguity, which may be removed by extrinsic evidence, may arise either when the will names a person as the object of a gift or a thing as the subject of it, and there are two persons or things that answer such name or description, or, second, when the will contains a misdescription of the object or subject, as where there is no such thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator; and it was said in that case (117 U. S. 217, 6 Sup. Ct. 620, 29 L. Ed. 860):

‘Where it consists of a misdescription, as before stated, if the misdescription can be struck out, and enough remain in the will to identify the person or thing, the court will deal with it in that way, or, if it is an obvious mistake, will read it as if corrected. The ambiguity in the latter case consists in the repugnancy between the manifest intent of the will and the misdescription of the donee or the subject of the gift. In such a case evidence is always admissible to show the condition of the testator's family and estate, and the circumstances by which he was surrounded at the time of making his will.’

It has been said, in discussing this question, that some courts and authorities have incorrectly attempted to make a distinction between patent and latent ambiguities as to the admissibility of extrinsic evidence. A very instructive discussion on this subject is found in Page on Wills, in section 823.

‘Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended and the will will be void for uncertainty.’ Wigram on Wills, proposition 6, p. 175.

‘It often becomes necessary to prove by extrinsic evidence whether or not the testator had property answering to the exact description in the will, and, if not, what property he did have which sufficiently answers such description. The books abound in cases in which wills have been upheld although the subject-matter has been indefinitely or inaccurately described.’ Jones on Evidence (2d Ed.) § 476.

‘Although a latent ambiguity does not usually render the instrument void, yet it may be as fatal as a patent ambiguity. This is true where the extrinsic evidence proves entirely unsatisfactory and results in leaving the matter wholly to conjecture.’ Jones on Evidence (2d Ed.) § 472.

‘While extrinsic evidence of the circumstances, situation, and surroundings of the testator and of his property is legitimate to place the court which expounds the will in the situation of the testator, and thus to enable the court to understand the meaning and application of his language, yet the intention must be determined from the language of the instrument as explained by such extrinsic evidence, and no proof, however conclusive in its nature, can be admitted with a view of setting up an intentioninconsistent with the writing itself.’ Whitmore v. Learned, 70 Me. 276; Jones on Evidence (2d Ed.) § 475, and cited cases; 19 Am. Law Reg. (N. S. 10) 93, note 97.

There can be no question that under our decisions and by the weight of authority in other jurisdictions the general rule is that oral proof is not admissible to reform, alter, detract from, or add to, the terms of a will, but the court may hear such evidence, for the purpose of understanding the circumstances by which the testator was surrounded. As was said in Hawhe v. Chicago & Western Indiana Railroad Co., 165 Ill. 561, on page 564, 46 N. E. 240, on page 241:

‘The object of the evidence was to place before the court the circumstances attending the execution of the will in support of and in aid of the intention of the testator as declared in the will, and the court, in the exercise of its discretion, had the right to hear such evidence.’

We shall not attempt to set out in detail the descriptions in the various cases decided by this court which have been held insufficient to be aided by extrinsic testimony and those that have been held sufficient to be so aided. In the light of the reasoning and the facts in the various cases, we think ...