In re Kahoutek's Estate
| Decision Date | 02 January 1918 |
| Docket Number | 1915 |
| Citation | 166 N.W. 816,39 N.D. 215 |
| Court | North Dakota Supreme Court |
On Reargument February 28, 1918.
Appeal from the District Court of Richland County, Honorable Frank P. Allen, Judge.
Application for the allowance of the account of an executor and for final distribution.
Cross petition for reformation of the will.
Judgment for cross petitioner. Executor appeals.
Reversed.
Reversed and remanded.
Engerud Divet, Holt, & Frame, for appellant.
The controlling sections of our Code come to us from California and with them an unbroken line of decisions placing construction upon them.
"No more in wills than in any other writings is parol evidence admissible to vary the terms of the instrument." Comp Laws 1913, §§ 5649, 5678, 5686, 5690, 5708; Cal Civ. Code, §§ 1276, 1311, 1318, 1322, 1340; Re Young (Cal.) 55 P. 1011; Re Lynch, 75 P. 1086; Re Tompkin, 64 P. 268.
"It is incompetent to show by any extrinsic evidence that the testator has by his own mistake or that of some other person given a legacy of less value or of a different character from that which he in fact actually meant to give." Re Callaghan, 39 L.R.A. 689, 51 P. 860.
"The principle that the intention which a testator has clearly expressed in his will must be followed--and that the will cannot be construed as intending a direct devise where the clearly expressed intent is otherwise--is accepted as the law." Re Faies, 60 P. 442; Re Young, 55 P. 1011.
Courts do not make new wills. McGovern v. McGovern (Minn.) 77 N.E. 970; Sturgis v. Works (Ind.) 22 N.E. 996; Taylor v. Horst (Wash.) 63 P. 231; Patch v. White, 117 U.S. 210; Benzel v. Volz (Ill.) 31 N.E. 13; Re Young, 55 P. 1013; Griscomb v. Evans, 40 N J. L. 402.
Extrinsic evidence cannot be used to change or contradict, but only to select between different meanings that which the words used may have. Brown v. Quintard, 177 N.Y. (83); Lenz v. Sens (Tex.) 66 S.W. 110; Lomax v. Lomax, 6 L.R.A. (N.S.) 942, 75 N.E. 1076; Burnett v. Burnett, 30 N.J.Eq. 595; Sherwood v. Sherwood, 45 Wis. 357; Dougherty v. Rodgers (Ind.) 20 N.E. 780.
An erroneous description may sometimes be made to apply to different property than that technically described, if it be referred to as "my property," "belonging to me," or where two descriptions are given one of which may correctly describe the property. Zerkle v. Leonard (Kan.) 60 P. 318; Hanley v. Krablezky (Wis.) 96 N.W. 820; Eckford v. Eckford (Iowa) 58 N.W. 1093; Funk v. Davis (Ind.) 2 N.E. 739; Priest v. Lackey (Ind.) 39 N.E. 54; Patch v. White, 117 U.S. 219; Re Lynch, 75 P. 1037, 6 L.R.A.(N.S.) pp. 943 to 977 note.
"When a latent ambiguity can be removed by rejective false words and leaving a complete intelligible description, the words should be rejected; or where there are two descriptions, one good and the other bad, the latter may be rejected." Benzel v. Voltz, 31 N.E. 13; McGovern v. McGovern, 75 N.W. 970.
So much of the description as is false may be stricken out, and if enough then remains to identify the premises intended to be devised, the will may be read and construed with the false words eliminated. Waltcomb v. Rodman (Ill.) 40 N.E. 553.
In construing a will it is not proper to try to get at what the testator meant. The test is, what means the words and language embodied in the will. Lee v. Lee (Ind.) 91 N.E. 507.
The meaning must be gathered "from the words of the will." This forbids a resort to extrinsic evidence to show intention as is permissible in a case of latent ambiguity. Tompkin's Estate (Cal.) 64 P. 268; Re Lynch (Cal.) 75 P. 1086; Re Young (Cal.) 55 P. 1011; Re Marti (Cal.) 61 P. 964; Kauffman v. Gries, 77 P. 847; Re Walkerly, 41 P. 780; Re Fares, 60 P. 455; Re Granniss, 74 P. 324; Re Upham, 59 P. 318.
There is no call or proper occasion here to indulge in presumptions as to what the testator meant, nor to receive extrinsic evidence, or to describe the surroundings and circumstances of the testator. The words of his will determine what is meant. Re Lynch, 75 P. 1086; Lincoln v. French, 16 Otto (U.S.) 614, 26 L.Ed. 1189; Re Callaghan, 39 L.R.A. 689; Priest v. Lackey, 39 N.E. 54; Griscom v. Evans, 40 N.J.L. 402; Sturgis v. Works, 22 N.E. 996; Re Young, 55 P. 1012; 6 L.R.A.(N.S.) 951, note.
Wolfe & Schneller, for respondents.
"A will is to be construed according to the intention of the testator." Comp. Laws 1913, § 5685.
"The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render some of the expression inoperative." Comp. Laws 1913, § 5693.
The mistake in the will where the wrong section is mentioned, section 9, instead of section 10, of the same township and range, where he did own land, discloses a latent ambiguity in the will, which can be cured by extrinsic evidence. Comp. Laws 1913, § 5708; Pate v. Bushong, 161 Ind. 533, 63 L.R.A. 593, 69 N.E. 291.
The presumption is that the testator intended to devise his own lands, and not those of another. Pate v. Bushong, supra; Pstch v. White, 117 U.S. 210; 2 Redf. Wills, 3d ed. p. 116; Case v. Young, 3 Minn. 209, Gil, 140; Moreland v. Brady, 8 Ore. 303.
"A devise of land described as in section 21, giving its boundaries, will pass land in section 22, having such boundaries, there being no land in section 21 with such description and he having owned no land in that section." Vestal v. Garrett (Ill.) 64 N.E. 345; Zirkle v. Leonard (Kan.) 60 P. 318; Re Pope (Minn.) 97 N.W. 1046; Hanley v. Kraftezyk (Wis.) 96 N.W. 820; Cleveland v. Spilman, 25 Ind. 95; Priest v. Lackey (Ind.) 39 N.E. 54; Eckford v. Eckford (Iowa) 58 N.W. 1093; Stewart v. Stewart (Iowa) 65 N.W. 976.
"The English courts from a very early date have given sanction to the principle that parol evidence is admissible to correct a mistake in the description of either land devised or personal property bequeathed." Bingle v. Volz, 16 L.R.A. 321, note, and cases cited.
It is the equitable object of our law to give effect to wills, rather than to destroy the intent of the testator and annul the true purpose of his will. Here the testator did not own land in section 9, but he did own the described land in section 10 of the same town and range. He devised to appellant all the land he thought he owned, subject to his bequests. To the average layman "bequest" and "devise" mean the same, and it was in this sense that he used the words employed in his will. 6 L.R.A.(N.S.) 967, note, subd. XIV., and cases cited; Thorn v. Schofield, 107 N.W. 100; Merrick v. Merrick (Ohio) 37 Am. Rep. 493.
This is a petition for the construction of a will which was filed by the respondents, Mary, Lena, and Rosa Kahoutek, at the time of the application of the appellant, Adolph Kahoutek, for the allowance of his account as executor and for final distribution.
The petitioner Mary Kahoutek is the widow of the deceased, having been married to him for about twenty years. The respondent is a son of the deceased by his first marriage and for a number of years has lived on the southwest quarter of section 10, which is involved in the case at bar. He has three adult full brothers, one of whom is a cripple. The petitioners Rosa and Lena are children of the deceased by his second wife, and girls of the ages of fifteen and sixteen. For several years before his death the decedent and the petitioner Mary Kahoutek had lived together in the city of Lidgerwood in a home there acquired and, as far as the record shows, harmoniously.
The decedent was at one time the owner of the south half of the southeast quarter of section 9, township 130, range 52, but about fifteen years before his death deeded the same to his wife, the petitioner, for life with the remainder over to his son John. At the time of his death and at the time of making his will he was the owner of the southwest quarter of section 10 of the same township. There is no evidence that he had ever been the owner of the southwest quarter of section 9.
In spite of these facts, however, the will devises to the petitioner Mary Kahoutek a life estate in the southwest quarter of section 9, together with certain homestead property consisting of lots 1 and 2 in block 4--Maxwell's addition to Lidgerwood--and the household furniture.
It is the contention of the petitioner Mary Kahoutek that it was the intention of the deceased to will to her a life interest in the southwest quarter of section 10, which he actually owned, in place of the southwest quarter of section 9, which he did not own, and that the parol and extrinsic evidence which was introduced on the trial in support of this contention justified a reformation.
The executor and appellant, on the other hand, claims that there is no ambiguity, either patent or latent, that can be explained by parol or other extrinsic evidence, and that it is incompetent to contradict the written will or to add to or to vary its express provisions.
He maintains that under the guise of construction the respondents, Mary Kahoutek, Rosa Kahoutek, and Lena Kahoutek, are seeking, and the lower court granted, a reformation of the will or the establishment of a parol disposition of testator's property by both adding to and taking from the plain and express terms of the written instrument. He maintains that this cannot be done.
The will is as follows:
Know all men by these presents that I, Anton Kahoutek, of the county of Richland and state of North Dakota, being of sound mind and memory, and thankful to God for the many blessings I have enjoyed, do hereby declare, make, attest, and...
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