Flynn v. Holman

• Decision Date: 09 April 1903
• Citation: 94 N.W. 447,119 Iowa 731
• Parties: C. A. FLYNN, Appellant, v. SARAH L. HOLMAN, Appellee
• Court: Iowa Supreme Court

94 N.W. 447

119 Iowa 731

C. A. FLYNN, Appellant, v. SARAH L. HOLMAN, Appellee

Supreme Court of Iowa, Des Moines

April 9, 1903

Appeal from Lucas District Court.--HON. M. A. ROBERTS, Judge.

MODIFIED and AFFIRMED.

Temple Hardinger & Temple for appellant.

Stuart & Stuart for appellee.

OPINION

THE opinion states the case.--Modified and affirmed.

WEAVER J.

Charity E. Flynn died April 26, 1894, owning three tracts of real estate described as follows: The southeast quarter of the southwest quarter of section 18, in township 72 north, of range 22 west; also the north one-fourth of the northeast quarter of the northwest quarter of section 19, in the same township and range; also the south fifty-eight feet of the north one hundred and eighteen feet of lot 6 in the northwest quarter of section 13, in township 72 north, of range 23 west. The deceased was a divorced woman, and left as her sole surviving heirs and next of kin two sons, Cyrus J Flynn and Charles A. Flynn, and one daughter, Sarah L. Holman. She left a will, of which the following (except the marginal figures, added for convenience of reference) is a verbatim copy:

LAST WILL & TESTAMENT

(1) Realizing the Fraility of Human Nature & the

(2) Uncertainty of Life I Charity E Flynn of Lucas

(3) County Iowa of Lawful Age & Sound Mind

(4) Make & Publish this as my Last Will & testament

(5) As follows viz I hereby give & Bequeath to my

(6) Son Cyrus J Flynn one Bed & Beding & whatsoever

(7) House hold good he may see fit to keep As his

(8) Own, & keep All I ow him in Money & Notes

(9) & to My son Charles A Flynn one Bed & Bedding

(10) & whatsoever house hold goods he may wish

(11) To keep & the Balance sole & Be Equally devided

(12) Between Cyrus J & Charles A Flynn

(13) Further I hereby give & Bequeath to My Daughter

(14) Sarah L Holman the sum of one dollar

(15) The total Amount of hir Shair to Be Paid

(16) to hir within 3 years After my Decease

(17) By Cyrus J Flynn

(18) & further More All the following Lands to wit

(19) The S E, S W in section 18 range 22 40 acres

(20) & one fourth of the N E N W in Section 19 10 acres

(21) When sold to Be Equaly devided Between

(22) Cyrus J & Charles A Flynn after All debts is Paid

(23) & furthermore all the Personal Property of what

(24) Soever kind I may own At my deth shal

(25) Belong to Cyrus J Flynn As his own

(26) & hold in his own name for Ever

(27) I further Desire that my son Cyrus J Flynn

(28) Pay all Just Debts or claims Against me

(29) At my Decease As soon as Practicable

(30) & All my funeral Expences to Be Paid

(31) By Cyrus J Flynn

(32) I hereby Make & Appoint

(33) Cyrus J Flynn Administrator of this

(34) My Last will & testament without

(35) Bond or Security to Be given By him

(36) Further I hereby give & Bequeath to my Son

(37) Cyrus J Flynn All of my Money Notes

(38) Mortgages Live stock & farm Implements

(39) to Charles A Flynn Charity E Flynn

This will was duly admitted to probate, and Cyrus J. Flynn qualified and acted as executor. On May 3, 1898, the executor filed his final report, showing, among other things, that he had paid Sarah L. Holman $ 1, and had in his said representative capacity conveyed the several tracts of land aforesaid to himself and to his brother, Charles A., in equal shares, as being, in effect, a distribution of said property in accordance with the intent of the testatrix expressed in her will. These conveyances appear to have been presented to and approved by the court, but were never recorded, and have since been lost. The final report was approved by the court, and the executor discharged. Thereafter, on August 27, 1900, this action was begun by Cyrus J. Flynn and Charles A. Flynn, alleging the facts above set forth, and asking to have their title to said land confirmed and quieted. The answer of Mrs. Holman denies the title of the plaintiffs, and alleges, in substance, that the will, properly construed, gives to her the forty-acre tract in section 18, and that, if such construction cannot be upheld, then the will, so far as relates to said tract, is void for uncertainty. She further claims that the lot or tract of land in section 22 is not described by the will, and that, as one of the heirs of her mother, she is owner of a one-third interest therein. Before the case came on for trial, Cyrus J. Flynn died testate, making his brother, Charles, A., his sole legatee and devisee. The district court found the will of Charity E. Flynn void for uncertainty as to all the lands, and that title thereto passed from the testatrix by descent, and not by will, to her three children in equal shares. Upon this basis Charles A. Flynn, as one of the three heirs of his mother, and as devisee under the will of his brother, Cyrus J. Flynn, was adjudged to be the owner of an undivided two-thirds of said lands, and Sarah L. Holman to be the owner of an undivided one-third. From the decree thus entered Charles A. Flynn, surviving plaintiff, appeals.

As the finding of the district court is stated in general terms, and does not indicate whether the uncertainty found in the will is in respect to the description of the property devised or as to the identity of the devisee, we will examine the instrument with reference to both these features.

I. The land mentioned in the will is there described as "the S E, S W in section 18 range 22 forty acres & one fourth of the N E N W in Section 19 ten acres." The description of the fractional parts of a section by abbreviations or initial letters is a matter of common and general usage and cannot be said to create any uncertainty as to the testatrix's meaning. Harrington v. Fish, 10 Mich. 415; McCready v. Lansdale, 58 Miss. 877; Jenkins v. McTigue (C. C. A.) 22 F. 148. It will be observed that the will fails to name the county or state in which the land lies, and in one instance omits the number of the township, and in the other the township and range These omissions do create an apparent uncertainty as to the subject of the devise, for it is a matter of common knowledge that in our system of land surveys there are many townships and ranges containing sections numbered 18 and 19, any one of which may answer the description given in the will. The inquiry then presents itself whether the will may be aided by proof of extrinsic facts and circumstances tending to point out and designate the particular tract or tracts of land which the testatrix intended to devise. The question is one not free from difficulty, but we think the weight of authority and the tendency of our own decisions require an affirmative answer. To ascertain the intent of the testator is the one object to which all testamentary construction is directed. The general proposition is that such intent must be derived solely from the language of the instrument. But in reading that language and defining its meaning the court will put itself as far as possible in the position of the testator, and take into consideration the circumstances surrounding at the time the instrument was executed. Perry v. Hunter, 2 R.I. 80; Blackmore v. Blackmore, 3 Sneed 365; Adamson v. Ayres, 5 N.J.Eq. 349; Lassiter v. Wood, 63 N.C. 360; Hutchinson's Appeal, 47 Pa. 84.

Under this will it was shown or conceded on the trial that at the date of the will in controversy Mrs. Flynn was a divorced women; that the two sons and daughter above named were her only children; that she was then the owner of the southeast quarter of the southwest quarter of section 18 and the north one-fourth of the northeast quarter of the northwest quarter of section 19, in township 72, range 22, in Lucas county, Iowa; that the third, or smaller, tract or lot hereinbefore described was purchased by her at a later date; and that she neither had nor owned any other real estate. Reading the will in the light of these established facts, can there be any serious doubt as to what tracts of land were intended by the testatrix when she made use of the description "S E, S W in section 18 range 22 forty acres" and "one fourth of the N E N W in section 19 ten acres?" If instead of this description she had said, "The fifty-acre farm on which I reside," no one would dispute the sufficiency of these words to carry the title or the right of the devisee to supply the section township and range by parol evidence. Hopkins v. Grimes, 14 Iowa 73; Wigram on Construction of Wills, 8; Doolittle v. Blakesley, 4 Day 265 (4 Am. Dec. 218). Yet is not the description actually employed by her as capable of being made definite and certain as in the case supposed? Presumably the woman was of sound mind, and there is nothing to indicate that in the solemn act of making a will for the distribution of her estate after her death she indulged in the idle effort to devise property which she did not own, and left wholly undevised the property she did own. She was then the owner of just two pieces of real estate. She devised two pieces and no more. The description of each is absolutely accurate so far as it goes, and in applying it to these lands not a clause or word of the language of the will must be rejected, but all are given full force and effect.

It is said in behalf of appellee that the will in this respect presents a patent ambiguity, and therefore parol evidence to identify the property is inadmissible. While the authorities are at variance upon the question thus raised, and there are cases which seem to sustain the appellee's position, we think that, according to the better doctrine, there is no patent ambiguity in this description, or, if such ambiguity exists, it forms one of the exceptions to the rule which excludes parol testimony. This question was presented to the Illinois court upon a description...