Daugherty v. Rogers

• Decision Date: 06 April 1889
• Docket Number: 13,416
• Citation: 20 N.E. 779,119 Ind. 254
• Parties: Daugherty, Administrator, v. Rogers
• Court: Indiana Supreme Court

20 N.E. 779

119 Ind. 254

Daugherty, Administrator, v. Rogers

No. 13,416

Supreme Court of Indiana

April 6, 1889

Petition for a Rehearing Overruled June 5, 1889.

From the Allen Superior Court.

The judgment is affirmed, with costs.

E. R Wilson, J. J. Todd, J. Morris and J. M. Barrett, for appellant.

R. S Taylor, for appellee.

Mitchell J. Berkshire, J. Olds, J., concurs.

OPINION

Mitchell, J.

The last will and testament of Amos Curry, late of Wells county, deceased, was admitted to probate on the 23d day of September, 1885. Among other provisions, it contained the following:

"Item 10. I will, devise and bequeath to Philo Rogers, the young man I raised, in addition to what I have already given him, the further sum of five hundred dollars."

At the time the will was executed the testator held six notes against Philo Rogers, the legatee above named, calling for the payment of sums aggregating about six thousand dollars. These notes were found among the assets left by the testator at his death--the interest having been regularly paid--and the administrator, with the will annexed, instituted suit upon them, alleging that they were executed in consideration of money loaned to the defendant by the testator in his lifetime, and that they remained unpaid.

The defendant answered, in substance, that he had been taken into the testator's family and reared by him from tender infancy, substantially as a son, and that the relations between him and the testator were those of the closest intimacy and affection, and so continued until the death of the latter. It is averred that the testator was a man of fortune, his estate being of the value of $ 80,000, and that his often-expressed intention was to make a liberal provision for the defendant out of his estate, in pursuance of which he had advanced to the latter, from time to time, divers sums of money in anticipation of the testamentary provision which he intended finally to make for him, taking notes for the sums so advanced, as memoranda of the amounts and dates of the advancements, which notes so taken were the identical ones mentioned in the complaint. It is averred further, that, at the date of the execution of the will, the testator had given him no other money or property except the several sums represented by the notes in suit, and that the words "in addition to what I have already given him," employed by the testator in the tenth item of his will, above set out, had reference to the money represented by the notes mentioned in the complaint, and that the will operated, and was intended to operate, as a release and extinguishment of the notes.

Issues were formed by a reply, and the case was tried and a judgment rendered for the defendant upon proof tending to support the theory foreshadowed by the answers.

Various incidental questions are presented, but the decision of the case upon its merits depends upon whether or not the court ruled correctly in admitting evidence to sustain the answers.

The will of Amos Curry was admitted in evidence, as was also extrinsic testimony tending to show that the testator had never, prior to the execution of the will, or since, given the defendant any money or other property except the money represented by the notes in question. Numerous declarations made by the testator, tending to show that he entertained a high regard for the defendant, were also admitted in evidence, as were also declarations to the effect that he had furnished the defendant money with which to engage in business, and had taken notes for it, but that he did not intend that the notes should ever be paid, that he intended to give the amounts so furnished to the defendant. Evidence such as the foregoing, together with testimony showing the relations existing between the defendant and the testator, comprised substantially all the evidence in the case, and whether the judgment of the court below shall be affirmed or reversed depends upon whether or not it was competent to arrive at the intention of the testator, as that intention was expressed in the words found in the will, by the aid of extrinsic evidence.

The argument on the appellant's behalf is to the effect that there is no ambiguity apparent upon the face or in the language of the will; that the instrument itself excludes the idea that the testator intended, by its terms, to give the appellee anything in addition to the five hundred dollars therein bequeathed to him; and that any testimony which tended in any degree to impute to the testator a different intention was contradictory of the will, and was therefore incompetent. Moreover, it is contended that there is no ambiguity in the language of the will, either as respects the person intended or the subject-matter of the bequest, and that hence extrinsic evidence was not admissible.

It is settled beyond controversy that whatever method may be resorted to for the interpretation of a will, it must be applied solely with a view to arrive at the intention of the testator, as his intention may be gathered from the language found in the instrument itself. However clearly an intention not expressed in the will may be proved by extrinsic evidence, the rule of law requiring wills to be in writing stands as an insuperable barrier against carrying the intention thus proved into execution. Pugh v. Pugh, 105 Ind. 552, 5 N.E. 673; Judy v. Gilbert, 77 Ind. 96; Funk v. Davis, 103 Ind. 281, 2 N.E. 739; Pocock v. Redinger, 108 Ind. 573, 9 N.E. 473; Worman v. Teagarden, 2 Ohio St. 380; 1 Jarman Wills, pp. 711, 726; 2 Pom. Eq. Jur., section 1036.

The maintenance of this rule in its integrity, so that the language found in the instrument shall in truth be the legal declaration of the testator's intentions concerning the disposition to be made of his property after his death, is a matter of transcendent importance, and, as will be seen from the cases cited, in no jurisdiction has the doctrine which denies the right to add anything to a will by parol been adhered to more steadily than by this court.

It does not follow that the law will suffer the manifest purpose of the testator to fail, because he may not have described the objects of his bounty or the subjects disposed of with such accuracy or completeness as that they may always, and with certainty, be identified by the language of the will, without more, or because he may have expressed his intention in an elliptical manner, and without going into such minute detail as to preclude the necessity of inquiry concerning his circumstances, situation and surroundings at the time the will was written, in order to enable the court to understand the meaning and application of the language employed. Nor is it correct to say that because the language employed is in itself intelligent and free from obscurity, extraneous evidence may not be legitimately resorted to in order to place the court which expounds the will in the situation of the testator who made it. "The law is not so unreasonable as to deny to the reader of any instrument the same light which the writer enjoyed." Wigram Wills, p. 161; Gilmer v. Stone, 120 U.S. 586, 30 L.Ed. 734, 7 S.Ct. 689.

It has been said, with what we conceive to be commendable accuracy, that "The points of inquiry under a will may, for general purposes, be classed under three heads:--1. The person intended. 2. The thing intended. And, 3. The intention of the testator with respect to each of them." Wigram Wills, p. 263, note. It may often happen that persons or things, or the intention of the testator respecting them, may seem to be sufficiently defined by the terms of the will, and yet when the language employed, and the facts to which it refers, are brought in contact with each other, the language and the facts are so inharmonious as to leave the intention of the testator obscure. Thus an ambiguity arises, not upon the face of the will itself, but from facts therein referred to which are extrinsic to the instrument. This, according to the maxim of Lord Bacon, constitutes the very essence of a latent ambiguity, which he defines to be "that which seemeth certain and without ambiguity for anything that appeareth on the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity." Hawkins v. Garland, 76 Va. 149 (44 Am. Rep. 158).

"An ambiguity 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 to the subject which they describe," is a latent ambiguity. 1 Am. and Eng. Encyc. of Law, p. 530, and note.

Whenever, therefore, in applying a will to the objects or subjects therein referred to, extrinsic facts appear which produce or develop a latent ambiguity, not apparent upon the face of the will itself, since the ambiguity is disclosed by the introduction of extrinsic facts, the court may inquire into every other material extrinsic fact or circumstance to which the will certainly refers, as well as to the relation occupied by the testator to those facts, to the end that a correct interpretation of the language actually employed by the testator in his will may be arrived at. Skinner v. Harrison Tp., 116 Ind. 139, 18 N.E. 529; Black v. Richards, 95 Ind. 184; Cruse v. Cunningham, 79 Ind. 402; Patch v. White, 117 U.S. 210, 29 L.Ed. 860, 6 S.Ct. 617; Atkinson v. Cummins, 9 How. 479; Chambers v. Watson, 60 Iowa 339 (46 Am. R. 70, 14 N.W. 336); Powell v. Biddle, 2 Dallas, 70 (1 Am. Dec. 263); Connolly v. Pardon, 1 Paige Ch. 291 (19 Am. Dec. 433); Pickering v. Pickering, 50 N.H. 349; Tilton v. Society, 60 N.H. 377; Hinckley v. Thatcher, 139 Mass. 477 (52 Am. R. 719, 1 N.E. 840); Morgan v. Burrows, 45 Wis. 211; Miller v. Travers, 8 Bing. 244; Hiscocks v. Hiscocks, 5 M....