Barnes v. Simms

• Decision Date: 31 December 1848
• Citation: 5 Ired.Eq. 392,40 N.C. 392,49 Am.Dec. 435
• Court: North Carolina Supreme Court
• Parties: EDWIN BARNES v. ZILLA SIMMS et al.

5 Ired.Eq. 392

40 N.C. 392

49 Am.Dec. 435

EDWIN BARNES

v.ZILLA SIMMS et al.

Supreme Court of North Carolina.

December Term, 1848.

When a will fully describes a person or thing, whether by many or few particulars, it is not competent to receive parol evidence of what was intended, though nothing be found to answer the description; for to pass another thing, or to pass the thing to another person than that described in the will, would be to give operation to the will over a thing or in favor of a person not mentioned in it.

Thus where a testator bequeathed a negro by the name of “Aaron” and it was shown that he had no negro of that name, but had one by the name of “Lamon,” not mentioned in the will; Held, that the Court could not say the latter passed by this bequest.

A testator gave to his daughter “M. wife of D.” a tract of land and several negroes and other personal property, and directed that the negroes should work on the land he had given her, “for the support of her and her children, and if the negroes dont make a support, rent out the land and hire out the negroes.” Held, that this could not be construed, as a devise or bequest to her separate use, as there was not enough to amount to the plain exclusion of the husband. Held, also, that the children of M. took no estate under this devise and bequest.

The cases of Proctor v. Pool, 4 Dev. 370, Simpson v. King, 1 Ire. Eq. 11, Ehringhaus v. Cartwright, 8 Ired. 39, and Rudisill v. Watson, 2 Ire. Eq. 430, cited and approved.

Cause removed from the Court of Equity of Edgecombe County, at the Fall Term 1848.

James Simms made his will and therein made a number of specific bequests of slaves and other things: among which were the following: “I give to my wife six negroes, Champion, Tony, Chany, Venus, Anaka, and Aaron. Item: I give to my youngest son, Benjamin, eight negroes, Amos, George, Peter, Turner, Pike, Creecy, Rose, and Jack. Item: I give to my daughter Martha, wife of John Dew, a tract of land, called the Bridge and Robinson tract, to her and her heirs forever; also seven negroes, Olive and child, Edy, Hardy, Clarke, Bridget, and Hannah; also one mule; also what stock she is in possession of; also one thousand dollars. Also it is my desire that the negroes I have left her shall work on the tract of land that I gave her for the support of her and her children; and if the negroes don't make a support, rent out the land and hire out the negroes. I also reserve two negroes to wait upon her; and if she and child should die without any heir they shall come into the old stock again. Item: my will is, that all the residue of my estate, if any, after taking out the devises and legacies above mentioned, shall be sold and the debts owing to me collected, and if there should be any surplus over and above the payment of debts and expenses, that such surplus shall be equally divided between my wife and all my children.”

The bill is filed by the executor against Mrs. Simms, the son Benjamin, Dew and wife, and their child, and the other residuary legatees, to have the rights of those several parties declared. It is stated in the bill, that the testator had no slaves by the names of Aaron or Pike; but that he had two by the names of Lamon and Pite, and that Lamon was the child of the woman Anaka, bequeathed to Mrs. Simms, and a small boy at the making of the will. It appears upon the will and pleadings, that the testator professes to dispose specially of forty eight slaves among his wife and children; of whom Aaron and Pite are two: That he had in fact four others, who are not mentioned in the will, namely, Lamon and Pite, before mentioned and two other young children, born recently before the making of the will. He had, therefore, in fact, fifty negroes, when he made the will. It is contended by the widow and the son Benjamin, that the testator intended to give to the former the boy Lamon, and to the latter the negro Pite, and that by a mistake of the writer of the will--who was somewhat deaf and did not distinctly hear the testator's directions--the name of Aaron was written for Lamon, and that of Pike for Pite; and that the executor states, that he believes such to be the truth, and that he is willing to dispose of those two slaves accordingly, if upon the construction of the will he is authorised to do so.

B. F. Moore, for the plaintiff .

Biggs, for the defendants .

RUFFIN, C. J.

It is extremely probable from the admissions of the parties and the circumstances of the case, that the alleged mistake really took place in writing this will; and the Court would gladly correct it, if it could be done consistently with the law. But it is manifestly impossible to do so upon the basis of any guide furnished by the will; and, therefore, that, if done at all, it must be exclusively on extrinsic evidence of an intention to give a negro, who is not given by any words in the will. That would in truth be to strike one word out of the will, and insert another in the place of it by parol proof; which cannot be done without introducing a multitude of mischiefs, with which the private hardship and inconvenience sustained by these parties can bear no comparison. It has long been settled, that written instruments, whether deeds or wills, are to be construed upon their own terms. At least, there must be enough in them, in respect both to the person to take, and the subject to pass, to enable the Court to say that the person does take, and the thing does pass by the instrument itself. There are, indeed, cases of ambiguity of description, in which resort may be had to evidence in aid of the will; for example, to show which person or thing is meant, when there is in the will a sufficient description, to which the evidence may fit the person or thing. That is the case when two things or persons come completely within the description; as two white acres, or two cousin Johns. So it is also, if the person or thing be described in more particulars than one, some of which are true and some false; then if enough remains, after rejecting the parts that prove to be false, to identify the donee or the subject, the instrument shall be effectuated. In all those cases there is upon the face of the will no ambiguity, and it arises only when the description comes to be applied; then it is found that there is an uncertainty, which of two persons or things was meant, which are within the words, or whether a thing or person was meant who is correctly described in some particulars but not in others. But, clearly, if a will describe a person or thing by many particulars and one is shown, who comes up to the description in every particular, it would not be competent to prove by witnesses, that the testator did not mean that, but another, though the latter be not within the description, and to give effect to the will, as if the description were altered in the instrument itself. That would be to make the will upon the evidence. So in like manner, when the will fully describes a person or thing, whether by many or few particulars, it cannot be competent to receive such evidence, though nothing be found to answer the description; for, to pass another thing, or to pass the thing to another person, than that described in the will, would be to give operation to the will over a...