Chrisman v. Magee

Citation67 So. 49,108 Miss. 550
CourtUnited States State Supreme Court of Mississippi
Decision Date18 January 1915

October 1914

APPEAL from the chancery court of Madison county. HON. G. G. LYELL Chancellor.

Petition by Mrs. Ada Magee, against J. J. Chrisman. From a decree in favor of petitioner for part of the relief demanded defendant appeals and petitioner cross-appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded. Suggestion of error sustained.

Thomas S. Owen, for appellant.

The errors in description of all these tracts of land which were erroneously described in the will, depend on the decision of the same point of law as to whether or not evidence may be admitted to explain or identify the property thus erroneously described in the will. In 40 Cyc., page 1444, is found the following: "For the purpose of explaining or identifying property defectively described, evidence may be admitted as to what land the testator owned, so as to show that, although he did not own the land described, he did own other similar lands, thus showing a mistake in the description, as in the number or designation of a lot or other division. One of the leading cases that we have been able to find on this subject is Patch v. White, 117 U.S. 210, Law, Ed. 860, in which the description of the land devised by the testator in his will was as follows: "And touching my wordly estate I give, devise and dispose of the same in the following manner." He devised specific lots to near relatives and among others, to his brother, "Lot No. 6 in square 403." He then gave to his son "the balance of my real estate, believed to be and consist of certain named lots;" but not mentioning lot 3 in square 406. It was held that the testator intended to dispose of all of his real estate, and thought he had done so; and that in his devise to his brother he believed he was giving his brother one of the lots he owned; and that evidence might be introduced to show that the testator did not, and never did own lot 6 in square 403, but did own lot 3 in square 406; and that evidence, in connection with the contest of the will, sufficiently showed an error in description and that the lot he really devised was lot 3 in square 406.

The case of Decker v. Decker, 121 Ill. 341, reported in 12 N. E., page 750, in which the case of Patch v. White, is cited with approval, is more nearly in point with the facts in this case as regards to two of the pieces of property in controversy here.

The case of Gilmer v. Stone, 7 S.Ct. 689, and the case of Webster v. Morris, 28 N.W. 353 (a Wisconsin case), both discuss the law as to latent ambiguities in a will and lay down the rule which we do not deem it necessary to argue, that as a latent ambiguity is disclosed only by extrinsic evidence it may be removed by such evidence. Pecock v. Reddinger (an Indiana case) reported in 9 N.E. page 473; Chambers v. Watson (an Iowa case) reported in 14 N.W. 336; Douglas v. Bolinger, 228 Ill. 23, 81 N.E. 787; Felkel v. O'Brien, 231 Ill. 329, 83 N.E. 170; Collins v. Capps, 235 Ill. 560, 85 N.E. 934; Clancy v. Clancy, 95 N.E. 140 Flynn v Holman (Iowa, 1903), reported in 94 N.W. 447; McMahon v. Hubbard (Missouri, 1009), 118 S.W. 481; Board of Trustees of M. E. Church South v. May (Missouri 1907), 99 S.W. 1093; Rogers v. Rogers (Georgia), reported in 2 S.E. 451.

In this connection see, also, the following authorities: Lomax v. Shinn, 162 Ill. 124, 44 N.E. 495; Moorehead v. Brady, 8 Ore. 303, 34 Am. Rep. 581; Graves v. Rose, 246 Ill. 76, 92 N.E. 601; 30 L. R. A. (N. S.) 303; Whitehouse v. Whitehouse, 136 Ia. 165, 113 N.W. 759, 125 Am. St. Rep. 250; Eckford v. Eckford, 91 Ia. 45, 58 N.W. 1093, 26 L. R. A. 370; Seebrock v. Fedawa, 33 Neb. 413, 50 N.W. 270, 29 Am. St. Rep. 488; 49th Century Digest, Title "Wills," secs. 1047 to 1057; 103 Am. St. Rep. 474; 97 N.W. 449; 75 N.W. 971; 80 N.E. 998; 99 U.S. 183.

From all of these authorities cited, it will be seen that the weight of authority is that evidence may be admitted to correct description of land that is erroneously described in a will, under the facts and circumstances in this case and that the two forty acres of land which were erroneously described and which the evidence showed that it was the intention of the testator to devise to J. J. Chrisman, should be held to be devised by this will to him.

Charles Scott and Woods & Somerville, for appellee.

The rule, from the time the memory of man runneth not to the contrary, in this state, has been that a description must be of sufficient definiteness as to enable a surveyor or other competent person to lay off the lands. How, may we ask, could any one lay off the "Southwest of the Northeast quarter" of a section. They would sat up their level of transit at the Southwest corner of the Northeast quarter and would be utterly at a loss to know how far to run, where to stop, or what lands to embrace. The testator gives us absolutely nothing else to go by, absolutely no further description than the one above outlined, and it must stand or fall on that alone. We say that it must necessarily fall. The holdings of this honorable court appear conclusive as to this point.

The court will note the holding in Tierney v. Brown, 65 Miss. 563; 7th Am. St. Rep. 679, where Justice Arnold says: "In one of appellant's muniments of title it (referring to southeast quarter of section 5, township 14, range 4) is described as part of the southeast quarter of section 5, township 14, range 4, east. This description indicated no particular part of the subdivision named, and is therefore fatally defective and void; Yandell v. Pugh, 53 Miss. 295; Bowens v. Andrews, 52 Miss. 596; Cogburn v. Hunt, 54 Miss. 675; Dingey v. Paxton, 60 Miss. 1038."

We have looked carefully for a late case covering the question here presented and the latest announcements which we have been able to locate are: Blumenthal v. Blumenthal, 158 S.W. 648, 251 Mo. 693, decided in 1913; James v. Hamil, 78 S.E. 721, 104 Ga. 168; Scott v. Dunckal, 152 S.W. 1025; Beard v. Taylor (N. C. 1911), 73 S.E. 213.

Equity cannot go beyond the intention of testator expressed in the will, to construe the will. Wills, Decennial Digest, section 581; Century Dig., section 1268. In section (T) of the Decennial in an Ohio case of Hull v. Hull, the court held and ruled that it could not substitute the number of a lot owned by testator for the number of a nearby lot in same block which latter lot testator did own. Patch v. White, 117 U.S. 210, gives a strong opinion by Mr. Justice BRADLEY, dissenting with three other justices. From an exhaustive examination of all authorities on this subject, we find the decisions are uniform in holding that no earthly court can go beyond the words of the will to construe same, but only where, by striking out a part of the description of land in a will, a sufficiently accurate description of the land is left, that the court can effect such an omission for the purpose of construing the will. Schlottman v. Hoffman, 18 So. 893; Lomax v. Lomax, reported in 6 L. R. A. (N. S.), page 943; Morris v. Henderson, 37 Miss. 505; Ehrman v. Hoskins, 67 Miss. 192; Hughton v. Sartor, 71 Miss. 357; Johnson v. Delome Land Co., 26 So. 360; Wills Dec. Dig. , sec. 581; Century Digest, sec. 1268; Patch v. White, 117 U.S. 210; Clancy v. Clancy, 95 N.E. 141 (Illinois); Collins v. Capps, 85 N.E. 934 (Ill.); McGovern v. McGovern, 77 N.W. 970 (Minnesota); In re Lynch, 142 Cal. 373, 75 P. 1086; Eckford v. Eckford, 53 N.W. 345; Chambers v. Watson, 10 N.W. 239. (A strong case from Iowa); Sturgis v. Work, 22 N.E. 996.

The first citation of counsel for appellant is Patch v. White, 117 U.S. 210, 29 L.Ed. 860. Mr. Justice J. A. P. CAMPBELL in Ehrman v. Hoskins, 67 Miss. 194, says that the rule of Patch v. White is not controlling in Mississippi, but says the dissenting opinion of four justices in that case is sufficient answer to it, if the facts there existed in the case he was then considering, but if such facts existed, parol evidence would be inadmissible; further Judge CAMPBELL says: "Here testator devised to the appellee a parcel of land by an accurate description, except as to the initial point, and parol testimony was received to show that he really intended to give her, not what is described in the will but another parcel of land. This was not to apply to the will made, but to make one different from that made."

In Gilmer v. Stone and Webster v. Mossir, 28 N.W. 353, the brief of appellant is discussing questions foreign to this case. In Pocock v. Reddinger, 9 N.E. 473, and Board of Trustees of M. E. Church v. May S.W. 1093, there was a clause in the will to the effect that testator made a general description, expressing in this will an intention to dispose of all property having no residual clause in the will; and the courts did not admit parol evidence after the court held the general description to cover certain lands improperly described in the will; the court struck out this latter improper description, and directed a devise according to the general description in the will. And so the courts make this nice distinction and appellant's citations are not in point. Such was true in Chambers v. Watson, 14 N.W. 336.

As to citation of Douglass v. Ballinger, 81 N.E. 787; Feckel v. O'Brien, 83 N.E. 170; Collins v Capps, 83 N.E. 934; Clancy v. Clancy, 95 N.E. 140, all from Illinois. We do not see that these cases are applicable here, but will be glad for the Illinois rule announced so clearly in Lomax v. Lomax to control the court and this last case is to our minds a sufficient answer to these citations. Flynn v. Holman, 94 N.W. 447, is not in conflict with our contentions, but an entirely different case. We are content with the rule announced in Board of Trustees of M....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT