Eichhorn v. Morat

• Decision Date: 17 April 1917
• Citation: 193 S.W. 1013,175 Ky. 80
• Parties: EICHHORN ET AL. v. MORAT ET AL.
• Court: Kentucky Court of Appeals

193 S.W. 1013

175 Ky. 80

EICHHORN ET AL. v. MORAT ET AL.

Court of Appeals of Kentucky.

April 17, 1917

Appeal from Circuit Court, Jefferson County.

Suit by Hannah T. Morat and others against John A. Eichhorn and others. Judgment for plaintiffs, and defendants appeal. Reversed, with directions.

Bennett H. Young and Hardin H. Herr, both of Louisville, for appellants.

Edward C. Wurtele, of Louisville, for appellees.

THOMAS J.

Anna Maria Eichhorn (née Wurtele) departed this life while a resident of Jefferson county on November 21, 1907, leaving surviving her her husband, the appellant John A. Eichhorn and the appellees, as her only heirs and distributees, she leaving no children and having survived both her parents. Before her death, and on January 12, 1907, she wrote in the German language and subscribed her name thereto a paper intended by her to be her last will and testament, and which translated into English is:

"Shively Kentucky, January 12, 1907. I, the undersigned, Anna Maria Eichhorn, née Wurtele, bequeath my personal and real estate which I received from my 1. father in real estate, to wit 8 1/2 acres of land, without security, so long as he lives, and should he have need he can sell, and use and will whoever is not satisfied one dollar. Anna Maria Eichhorn, née Wurtele. Witness, George Emmitzenberger."

The 8 1/2 acres of land mentioned in that writing were inherited by Mrs. Eichhorn from her father, the appellees inheriting their portions from the same source. After the death of Mrs. Eichhorn her husband continued in possession of the land, cultivating and using it, until September 29, 1914, when the appellees filed this suit against him, seeking a settlement of his wife's estate, and claiming to have inherited the land as his wife's collateral heirs, asking that it be sold for division, and that he be paid his proper dower allowance out of the proceeds. There was also an effort to charge him with rent from the time of the death of his wife.

To this petition the defendant (appellant) interposed several defenses, but the one presented by this appeal, and which is the only one necessary to be determined, is that the above paper was and is a valid will of his wife, and that he is the intended devisee therein, and that under the will he not only had a right to the use and occupancy of the land during his natural life, but that he took a fee-simple title thereto.

A reply completed the issues, and defendant took proof to show the intention of his wife to name and designate him as her devisee, but the court declined to consider the proof and adjudged that the paper was void for uncertainty to such an extent as that it could not be aided by extrinsic proof and treated the case as if Mrs. Eichhorn had died intestate. This conclusion of the court was necessarily followed by a judgment in accordance with the prayer of the petition, and from that judgment the defendant prosecutes this appeal.

It will at once be seen that the sole question is whether it is competent, under the rules of law applicable to the subject, to show by extrinsic testimony whom the testatrix meant by the use of the personal pronoun "he," which word she employed to designate her devisee. There has been much learning displayed and many niceties of distinction made both by text-writers and courts, especially in former times when strict technical rules were more universally prevalent, upon the right of courts to resort to extrinsic proof to ascertain the meaning of the maker of a paper (including wills) in the use of the terms which he employed therein. As we gather from the authorities, it may be stated generally that with reference to wills the rule is that, if the testator failed altogether to employ any word or term indicating his intention as to the identity of the object of his bounty, or the subject-matter of the devise, it is incompetent to supply by extrinsic proof, however overwhelming and convincing, what is supposed to have been his intention in these particulars. But if he employed in his will a word or term which he intended should identify and to point out his devisee or the property intended to be devised, and which word or term is uncertain and ambiguous on account of being applicable to more than one object or person, it is then competent for the courts to look to extrinsic proof for the purpose of ascertaining the person or object intended. In other words, as it has often been expressed, it is incompetent, by this character of proof, to show what the testator intended to say, but did not, but it may be shown what was intended by what he did say. Wickersham v. Wickersham, 174 Ky. 604, 192 S.W. 688; Fowler v. Mercer's Ex'r, 170 Ky. 353, 185 S.W. 1117; Lewis v. Reed's Ex'r, 168 Ky. 559, 182 S.W. 638; Guthrie v. Guthrie, 168 Ky. 805, 183 S.W. 221; Howard v. Cole, 124 Ky. 816, 100 S.W. 225, 30 Ky. Law Rep. 1027; Bedford v. Bedford, 99 Ky. 284, 35 S.W. 926, 18 Ky. Law Rep. 193; Trustees, etc., v. Offutt's Adm'rs, 6 B. Mon. 535; Jones on Evidence (Horwitz Edition) vol. 3, §§ 473 and 479; Siegley v. Simpson, 73 Wash. 69, 131 P. 479, 47 L. R. A. (N. S.) 514, Ann. Cas. 1915B, 63, and notes thereto.

The rule permitting the introduction of extrinsic evidence in aid of the intention of the testator is furthermore confined to showing such persons and objects as correspond with the terms which he employed, and will not allow the developing by extrinsic proof, as a person or object intended, one who or which will not apply to or correspond with the word or words which the testator used. In other words, the person or object shown by the proof to have been intended must be one to which the word sought to be explained will apply. Illustrative of our meaning: In the instant case it would be wholly incompetent to show by extrinsic proof that the testatrix meant by the use of the personal pronoun "he" a female to whom the word used did not apply, and likewise, if the subject-matter of the devise was stated in the will to be property which is real estate, it would be incompetent to show by such proof that it was really intended to include personal property. In neither of the illustrations would the proven intention correspond with the term employed by the testatrix.

With these preliminary statements, we will now briefly consider the law applicable to the subject. As stated in Broom's Legal Maxims, star pages 545 and 546:

"Extrinsic evidence is unquestionably admissible for the purpose of showing that the uncertainty which appears on the face of the instrument does not, in point of fact, exist, and that the intent of the party, although uncertainly and ambiguously expressed, may yet be ascertained by proof of facts to such a degree of certainty as to allow of the intent being carried into effect. In cases falling within the scope of this remark, the evidence is received, not for the purpose of proving the testator's intention, but of explaining the words which he used."

On page 542 the same author says:

"It being an important rule that, in expounding a will, the court is to ascertain not what the testator actually intended as contradistinguished from what his words express, but what is the meaning of the words he has used."

To the same effect is Page on Wills, §§ 816 and 817. In the case of Siegley v. Simpson. supra, in stating the rule, the court, quoting from the case of Woman's Foreign Missionary Society v. Mitchell, 93 Md. 199, 48 A. 737, 53 L. R. A. 711, said:

"It is the identity of the individual, natural or artificial, that is material, and not the name; for that is simply one of the numerous means by which the identity is ascertained. The identity being established, the name is of no importance."

The court in that case further quoted with approval the rule as laid down in 30 Am. & Eng. Ency. Law (2d Ed.) 673, as follows:

"It may be stated generally that, where the beneficiary under a will is not designated with precision, parol evidence is admissible to show who was intended. * * * But where there is no ambiguity, and the object of the testator's bounty is sufficiently designated by plain language so that it was clear who was intended, the construction is for the court, and parol evidence is inadmissible, although it may be thereby shown that the testator's intention was entirely different from that expressed in the will."

In Jones on Evidence, supra, § 477, it is said:

"If the context of the will affords sufficient evidence of the identity of the person intended as the legatee, the will alone must be looked to in order to clear up the difficulty and determine the question. But if the context fails, or, after examining the whole will, it still remains uncertain who is the person to take, then recourse must be had to parol proof. In no case, however, is a bequest to be deemed void for uncertainty as to the person, provided the person intended to take can be identified by any competent evidence. The court never considers a devise void unless it is so absolutely dark that they cannot find out the testator's meaning."

Further along it is said:

"Extrinsic evidence is, however, most frequently...