Bradley v. Bradley

• Decision Date: 31 January 1857
• Citation: 24 Mo. 311
• Parties: BRADLEY et al., Defendants in Error, v. BRADLEY et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

24 Mo. 311

BRADLEY et al., Defendants in Error,

v.BRADLEY et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1857.

1. A will was executed in the following form: “I, A. B., of, etc., do, etc., make this my last will and testament in manner and form following, to-wit: first, that all my just and lawful debts be paid; second, that my wife, C. D., be my sole heir to all my estate remaining on hand after the payment of my just debts, real and personal, to-wit: lands, negroes, horses, cattle, hogs, sheep, farming utensils, household and kitchen furniture, money and effects. Given under my hand this day and date above written.” Held, 1st, that the children of A. B. were not named or provided for in this will within section eleven of the act concerning wills (R. C. 1845, p. 1080); that consequently he died intestate as to such children; 2d, that evidence is not admissible to prove that at the time of making the will the testator declared that he would name no other person in his will--that he had done all for his children he intended to do--and that he designed all he had at his death to go to his wife absolutely.

Error to Callaway Circuit Court.

The facts sufficiently appear in the opinion of the court.

Gardenhire and Ansell, for plaintiffs in error, cited 11 S. & R. 289; 12 id. 131; 15 id. 219; 14 id. 311; 11 Wheat. 59; 10 Mass. 385; R. C. 1845, p. 1086, §51; Block v. Block, 3 Mo. 407; Wilder v. Gross, 14 Mass. 357; 1 Mass. 165; Wild v. Brown, 2 Mass. 569; Church v. Crocker, 3 Mass. 17; Guitar v. Gordon, 17 Mo. 411; 2 N. H. 699; 1 Terr. Laws, 125, 132 (1807); p. 405 (1815); p. 787 (1821); R. C. 1825, p. 795; R. C. 1835, p. 620; R. C. 1845, p. 1080; Wigram on Wills, 51; Dessaus. Eq. 506; 6 Metc. 400.

Young, Harden and Morrow, for defendants in error, cited Guitar v. Gordon, 17 Mo. 411; 14 Mass. 357; Tucker v. Barton, 18 Pick. 162; 6 Metc. 400; 1 Jarman on Wills, 146; Gregory v. Cowgill, 19 Mo. 415; Goode v. Goode, 22 Mo. 518.

RYLAND, Judge, delivered the opinion of the court.

This is a petition by the plaintiffs, part of the children and heirs of Thomas P. Bradley, deceased, against the widow and others, children and heirs of said Thomas P. Bradley, in order to have dower in the estate of said Bradley assigned to his widow. The petition sets out the will of said Thomas P. Bradley, deceased; and avers that he left real estate to the value of $1,500, and slaves to the value of $5,000 and upwards, and other assets. The petitioners allege that said Thomas P. Bradley omitted to mention the names of his children and heirs in his said will, and failed to make any provision for them; and allege that said Bradley died intestate as respects his said real estate and slaves and his said children; and pray that dower may be assigned in the estate to his said widow, Ann Bradley.

The infant defendant, Franklin, P. Bradley answered by his guardian ad litem, duly appointed, denying that he and his co-defendants held said premises together with the petitioners. The defendant, Ann Bradley, answered, stating that the petitioners' ancestor made his will and died; that the will was proved; that the exhibit made in the petition is a true copy of the said will. She denies that the testator failed to name and provide for his children in his will; denies that he died intestate as to any of them. On the contrary, she states that she is informed and believes that all his children are named and provided for in the said will; and that the said will is valid under the laws of this state as against his children. This, she says, is a question of law to be submitted to the court upon the facts admitted and to be proved. She denies all right of the petitioners in and to the estate of the deceased, and says that she is the sole and exclusive owner of all the land that the testator had at his death; that she is the sole tenant thereof, and that none of the other parties to this suit have any interest in it.

The following is a copy of the will: “I, Thomas P. Bradley, of the county of Callaway, and State of Missouri, do, on this 10th day of June, in the year of our Lord one thousand eight hundred and fifty-three, make this, my last will and testament, in manner and form following, to-wit: First, that all my just and lawful debts be paid; second, that my wife, Ann Bradley, be my sole heir to all my estate remaining on hand after the payment of my just debts, real and personal, to-wit lands, negroes, horses, cattle, hogs, sheep, farming utensils, household and kitchen furniture, money and effects. Given under my hand this day and date above written. Thomas Poe Bradley. Test: Thomas B. Harris, William Houp, William B. Swon.”

The trial of the issue was submitted, by consent of the parties, to a jury; and after the defendants had read to the jury the will of Thomas P. Bradley, as above set forth, they offered to prove by the draftsman of the will that the said testator, at the time of making his will, declared that he would name no other person in his will; that he had done all for his children he intended to do; and that he designed all he had at his death to go to his wife absolutely. To this evidence the plaintiffs objected, and the court sustained the objection, and excluded the evidence, and the defendants excepted.

The plaintiffs asked the following instruction: “That the will read in evidence makes no provision for the children and heirs of Thomas P. Bradley; nor is either of them named in said will, and by the laws of this state said Thomas P. Bradley died intestate as to said children; and said children and heirs are entitled to partition of his property as if he had died without having made a will.” This instruction the court gave, and the defendants excepted.

The defendants asked for several instructions, which the court refused to give, and which are deemed of no importance in deciding the questions now before the court. The questions on the record are principally two: Did the court err in rejecting the testimony of the defendants in relation to the declarations of the testator that he would name no other person in his will-- that he had done all for his children he intended to do--and that he designed all he had at his death to go to his wife absolutely? And lastly: Did the court err in giving the plaintiffs' instructions to the jury?

The testimony offered by the defendants was properly excluded. Its effect was to make by parol a will for the testator. Admit such testimony, and the will is made in court by the witnesses, and not in writing by the testator, as the statute requires. In Gregory v. Cowgill, 19 Mo. 415, the court below rejected evidence of the declarations of Robert Sinclair, the testator, showing that by his will he intended to give his wife a power of disposal over his entire estate, both real and personal. This was excepted to, and assigned for error in this court. This court held “that on no principle were the declarations of the testator admissible to explain the meaning of his will.” None of the circumstances were present which influence courts to admit parol evidence to give effect to a bequest or devise. Parol testimony as to the declarations of a testator cannot be given in evidence to control the language of a will, or give to it a different effect from that which it plainly imports; and wherever the words of a will are plain and obvious in their terms, they would exclude all evidence of declarations of the testator tending to show his real purpose to have been other than that apparent upon the face of the will. On the other hand, latent ambiguities, as to the person or the devise, may be removed by the aid of parol evidence. (6 Metc. 405.) The legal effect of a will cannot be changed or varied by admitting evidence of the testator's declarations. (Farrar v. Farrar, 5 Pick. 409; Mann v. Mann's Exec'r, 1 Johns. Ch. 231; 14 Johns. 1; Wigram on Wills, 73.) Thompson, Ch. Justice, in the case of Mann v. Mann's Exec'r (14 Johns. 9), said, “that the intention of the testator is to be sought after and carried into effect; that such intention is to be collected from the will itself, unaided by any extrinsic evidence, except in the case of latent ambiguity, or to rebut a resulting trust; and that no parol evidence is admissible to contradict, enlarge or vary the words of a will, are general rules so well settled that they may be assumed as elementary principles of law.” “It is conceived that there is in principle an objection to the reception of the declarations of intention. When a person executes a written instrument (whether a will or deed or written agreement), he must be supposed to express and embody in the instrument all he has to say of his intention. Thenceforward his intention is to be collected only from the instrument; reference also being allowed, when necessary, to surrounding material facts and existing circumstances. Facts may of course be referred to for explaining an ambiguity, and proving the intention, so far as they can be applied for that purpose, consistently with the language of the instrument; but the party himself ought not to be allowed to add any thing in the way of explanation, or for declaring his intention; all he had to say of his intention he must be supposed to have conclusively said when he executed the instrument. This, it is conceived, is the principle of common law and of sound reason, applicable alike to all written instruments; and the ground and reason on which the principle is founded must obviously be on account of the great danger and inconvenience which would result from evidence of declarations, well described by...