Hawkins v. Garland's Adm'r

• Decision Date: 19 January 1882
• Citation: 76 Va. 149
• Parties: HAWKINS v. GARLAND'S ADM'R ET ALS.
• Court: Virginia Supreme Court

76 Va. 149

HAWKINS v. GARLAND'S ADM'R ET ALS.

Supreme Court of Appeals of Virginia.

January 19, 1882

The case is fully set forth in the opinion of the court.

L D. Haymond, J. B. Brockenbrough, for appellant.

1. Latent ambiguity can only be raised by parol proof, and dissolved by same. It does not appear on the face of the words used, and its existence is unknown until those words are brought into contact with collateral facts. Broom Leg Max. 411; 2 Greenl. Ev. § 297; Bacon's Max. 23; Baugh v. Reed, 11 Ves. Jr. 257; Delmare v. Robello, Ib. 412, et seq.; Maund's Adm'r v McPhail, 10 Leigh 199; Beaumont v. Fell, 2 Peene Wms. 141; Smith v. Bell, 6 Peters 68; Allen v. Allen, 12 A. & E. 450 (40 E. C. L 227), Wigram, passim, and cases therein cited; Careless v. Careless, 1 Mer. 384; Roy's Ex'ors v. Rowzie, & c., 25 Gratt. 599; Beadsley's Adm'r v. Am. H. M'y Society, 45 Conn.; Dunham v. Averill, Ib. 61.

2. A mere misdescription of the legatee does not render a legacy void, unless the ambiguity is such that it is impossible to ascertain either from the will itself, or from proofs dehors the will, who was intended as the object of the testator's bounty. Smith v. Smith, 4 Page 271; Wigram, pp. 21, 23, 177-8; Reno v. Davis, 4 H. & M. 388; 1 Ves. Jr. 257, 266, 344, 412; Man v. Man, 14 John R. 1; Still v. Host, 6 Madd. 192; Hampshire v. Pierce, 2 Ver. Jr. 218; Doe v. Hathwaite, 3 B. & A. 682; Thomas v. Thomas, 6 Tenn. R., Wigram, 230-1; Crawford v. Janett, 2 Leigh 630; Miars v. Belgood, 9 Leigh 374.

3. The evidence abundantly shows that no Samuel Garland, son of Captain John F. Slaughter, existed or was intended as the object of the testator's bounty, but that that object was Samuel Garland, son of Captain John F. Hawkins, the appellant.

Jubal A. Early, for appellees.

OPINION

CHRISTIAN, J.

This case is before us on appeal from a decree of the circuit court of the city of Lynchburg.

The facts disclosed by the record, so far as necessary to be noticed in this opinion, are as follows:

Samuel Garland, Sr., departed this life in November, 1861. He left a will written wholly by himself, which bears date the 7th of December, 1857. He left a very large estate, valued at nearly $800,000. He left a widow, but no issue. His next of kin consisted of a number of nephews and nieces, to all of whom he left liberal bequests.

The question in this case arises under the 15th clause of said will, which in its numerous provisions is the only one necessary to be noticed in deciding the controversy in the court below, and which is now brought before this court for review. That clause of the will is in these words: " 15th. I give to each of my name-sakes, Samuel G. Slaughter, son of Ch. R. Slaughter; Samuel G. White, son of Samuel G. White; Samuel, son of S. Garland, Jr.; and Samuel G., son of Captain John F. Slaughter, a bond of one thousand dollars of S. S. railroad."

The record further conclusively shows that at the date of the will, to-wit, the 7th of December, 1857, there was no such person in existence as " Samuel G. Slaughter, son of Captain John F. Slaughter," and no such person was in existence until three or four years after the date of said will. Then there was born to John F. Slaughter a son whom he named Samuel G. Slaughter.

The proof in the cause further shows conclusively that John F. Slaughter never was known to the testator, or called by him " Captain" John F. Slaughter, and that he had no such title, and was known and called by the testator simply Jack Slaughter. He had no such title as captain, was never known or called as such either by the testator or any other person, and at the date of the will he had no son named " Samuel G. Slaughter."

All this is admitted by the answer of John F. Slaughter.

Without going further into the proofs in the cause it is manifest that there was a misdescription of the person named in the 15th clause of the will as a legatee of the bond of $1,000 in the said clause mentioned.

The legacy is to a name-sake. That name-sake is described as Samuel G., son of Capt. John F. Slaughter. There was no such name-sake in existence at the time of the execution of the will. There was no such person known to the testator as Capt. John F. Slaughter, and John F. Slaughter, whatever his title, had no such son, and did not for years afterwards have a son named after the testator, Samuel Garland.

The case presented upon these facts is one of a latent ambiguity within the very definition of the authorities.

As defined by Lord Bacon, " a latent ambiguity is that which seemeth certain and without ambiguity for any thing that appeareth on the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity." See Bacon's Law Torts. p. 99.

A latent ambiguity therefore exists in a sentence or expression only when the real meaning or intention of the writer is hidden or concealed. It does not appear on the face of the words used, nor is its existence known until those words are brought into contact with collateral facts. It is only when you come to apply the words, bringing them alongside the facts which existed when used, and to read them in the exact light in which they were written that you make up the latent ambiguity, if one exists. Bacon's Max. 23; Geen. Ev. §§ 297, 298; Brown's Legal Maxims, p. 441.

The case before us, therefore, is one of latent ambiguity where there is nothing ambiguous in the words used, but where the extraneous evidence shows that the person named in the testator's will as the object of the testator's bounty, is not in fact the person to whom the testator intended to make the bequest. It was simply a misdescription of that person, made inadvertently by a slip of the pen in writing the name and designation. This is the more manifest when it appears that in the testator's will he made another mistake as to the name designating the object of his bounty, and no controversy is made with respect to the mistake of the name in that case, where he designates the legatee as Samuel Garland, brother of Ch. R. Slaughter, when it seems manifest he meant to write Samuel Slaughter. (See 14th clause of will.)

Where there is a misdescription in a will, either of the person to whom the devise or legacy is given, or of the subject matter of the bequest or devise, extraneous evidence is always admissible to show the person who was the object of the testator's bounty, or the property actually devised or bequeathed. When there is doubt as to whom the legacy or devise was intended, or where there is a misdescription of the property devised or bequeathed, extraneous evidence is always admissible to show the real party to whom the devise or bequest is made, and the specific property which the testator intended to devise or bequeath. This is familiar law, and sustained by all the authorities.

I think it must be conceded that the extraneous evidence clearly shows that in the testator's will there was a misdescription of the legatee, one of the subjects of his bounty, when he designates him as " Samuel G., son of Captain John F. Slaughter," and especially when he designates him as one of his name-sakes. As already seen, there was no such person as " Samuel G. Slaughter, son of Captain John F. Slaughter," in existence at the time of the execution of the will. I think, therefore, that it is perfectly plain from the will and the evidence in the cause that Samuel G. Slaughter is not entitled to receive the legacy of $1,000, and that he, upon the proofs in the cause, does not answer to the description contained in the 15th clause of the will of the testator.

I think, upon the record, that this is too plain for argument, and the concession in the answer of John F. Slaughter that he did not have any son named after the testator, and not until years after the date of the will, is conclusive of the case in this respect.

The fact that years after the execution of the will he had a son whom he named after the testator does not at all affect the construction of the will. Properly to construe that will, we must put ourselves in the place of the testatator and inquire who were the objects of his bounty under the 15th clause of his will. Assuming that position, we are bound to say that the son of John F. Slaughter did not answer to the description of the testator as his name-sake, for he was not then born, and not born until years afterwards; and he was not the son of Captain John F. Slaughter, for there was no such person known to the testator. It is very plain, therefore, that the son of Captain John F. Slaughter is not entitled to receive this legacy for the reasons already stated, there being plainly a misdescription of the person to whom the legacy was given in the 15th clause of said will.

But the main and important question is, to whom shall this legacy be paid? Shall it lapse because there is no hand to receive it, and no legatee to whom it shall be paid?

Courts are always averse to permitting a legacy to lapse if it can be found who was the legatee intended by the testator to be the object of his bounty. In this respect, as in all other questions concerning the contruction of wills, the prime object is to find out the intention of the testator, and the courts will never permit a legacy to lapse if, upon a fair construction of the will...