Joseph Wilkins, Tenant and Francis Bailey, Joseph Peacock, and Samuel Bailey, Executors of Michael Allen, Deceased Plaintiffs In Error v. David Allen, Martha Allen, Catherine Allen, and Isabella Allen

• Decision Date: 01 December 1855
• Citation: 59 U.S. 385,15 L.Ed. 396,18 How. 385
• Parties: JOSEPH WILKINS, TENANT, AND FRANCIS G. BAILEY, JOSEPH PEACOCK, AND SAMUEL BAILEY, EXECUTORS OF MICHAEL ALLEN, DECEASED, PLAINTIFFS IN ERROR, v. DAVID ALLEN, MARTHA ALLEN, CATHERINE ALLEN, AND ISABELLA ALLEN
• Court: U.S. Supreme Court

59 U.S. 385

18 How. 385

15 L.Ed. 396

JOSEPH WILKINS, TENANT, AND FRANCIS G. BAILEY, JOSEPH

PEACOCK, AND SAMUEL BAILEY, EXECUTORS OF MICHAEL ALLEN,

DECEASED, PLAINTIFFS IN ERROR,

v. DAVID ALLEN, MARTHA ALLEN, CATHERINE ALLEN, AND ISABELLA ALLEN.

December Term, 1855

THIS case was brought up, by writ of error, from the circuit court of the United States for the western district of Pennsylvania.

It was an ejectment brought by the Allens, who were aliens and subjects of the Queen of Great Britain and Ireland, to recover four undivided fifth parts of one undivided half of a lot in Pittsburg. They were heirs of Michael Allen, and the question was, whether Allen, the testator, had devised the property in question by his will.

The substance of the will is given in the opinion of the court, as are also the rulings of the circuit court.

It was argued by Mr. Williams, for the plaintiffs in error, and by Mr. Loomis and Mr. Stanton, for the defendants.

The points made by Mr. Williams are thus stated in his brief:

The case presents two questions only:——

1st. Whether the terms of the will are sufficient, proprio vigore, and interpreting the same by the context, to carry the real estate to the executors; and,

2d. Whether the interpretation thereof may not be aided, if necessary, by extrinsic circumstances, to wit: memoranda, declarations, and the actual amount and condition of the estate, as offered to be shown by the defendants.

On the first of these questions, and for the purpose of showing that the intention (which is only another name for the will) of the testator, is the great point of inquiry, and must be collected from the whole writing, and every word and sentence thereof; and that to serve it, words may be used either in the technical or general sense, and even supplied, transposed, or changed, the counsel for the plaintiffs in error will refer to the cases of Ruston v. Ruston, 2 Dall. 244; Findlay v. Riddle, 3 Binn. 149; Lynn v. Downes, 1 Yeates, 518; Beltzhoover v. Costen, 7 Barr, 16; Turbett v. Turbett, 3 Yeates, 187; Hunter's estate, 6 Barr, 97; Earp's Will, 1 Par. 457; Den v. Blackwell, 3 Green, 386; Den v. McMurtrie, Ib. 276; 1 Jarman on Wills, chap. xvii., and cases there cited.

That, as a consequence of the foregoing rules, real estate may pass under a devise by any form of expression not properly and technically descriptive thereof, if such an intent can be collected from the context—that general expressions may be restrained and special expressions enlarged, and the same words sometimes understood in one sense, and sometimes in another, will be shown in the cases of Huxtep v. Brooman, 1 Brown C. C. 437; Taylor v. Webb, 2 Sid. 75; Pitman v. Stevens, 15 East, 505; Wilce v. Wilce, 5 Moore & Payne, 682; Tolar v. Tolar, 3 Hawks, 74; Hope v. Taylor, 1 Bur. 268; Doe v. White, 1 East, 33; Den v. Trout, 15 East, 394; King v. Shrives, 4 Moore & Scott, 149; Anon. 3 Dale, 477; Jackson v. Housel, 17 Johns. 281; Ferguson v. Zepp, 4 W. C. C. R. 645; Hogan v. Jackson, Cowper, 299; Marchant v. Twisden, Gilb. Eq. Ca. 30; Wilkinson v. Merryland, Cro. Car. 447, 449; Cliffe v. Gibbons, 2 Ld. Raym. 1324; Bullard v. Goffe, 20 Pick. 252; Doe v. Rout, 7 Taunt. 79; Woolham v. Kenworthy, 9 Ves. 137; Timewell v. Perkins, 2 Atk. 102; Roe v. Yeud, 2 B. & P. (N. R.) 214.

That the circumstance of a previous specific devise of land always favors the extension of the subsequent general words to property of the same description, although even the absence of that circumstance is not considered as conclusive against it, even when the subsequent terms are associated with words descriptive of personal property only. 1 Jarman on Wills, 575.

That the word 'surplus' and its equivalents, without more, may operate by reference, to carry either realty or personalty, or both, he will refer particularly to the cases of Bebb v. Penoyre, 11 East, 160; and Dewey v. Morgan, 18 Pick. 295.

That the interpretation of the testator's language is to be made with reference to the law and usages of the place of his actual domicile, 2 Greenl. Ev. § 671; Story's Confl. of Laws, § 479, f.; Harrison v. Nixon, 9 Pet. 483; and that, by the law of Pennsylvania, the whole interest of a testator passes without words of inheritance or perpetuity, unless a different intent appear; act of 8th April, 1833, § 9, (Ph. L. 249;) Purdon's Dig. 844; that real estate is assets for the payment of debts and legacies are chargeable on lands where the personalty is insufficient to meet them; Nichols v. Postlethwaite, 2 Dall. 131; English v. Harvey, 2 Rawle, 309; and that, therefore, the habit of treating both as equally a fund to pay any demand, would not probably be forgotten by a testator when making his will. Ib.

On the second and last of the questions proposed, namely, whether the construction may be aided by proof of extrinsic circumstances, the counsel for the plaintiff.

To show that the court may and ought to put themselves in the place of the testator, by looking into the state of his property, and the circumstances by which he was actually surrounded, will refer to 1 Greenl. Ev. §§ 287, 288, 289, & 290, and notes; Ruston v. Ruston, Supra (2 Dall. 244); Brownfield v. Brownfield, 8 Har. 59; Root v. Stuyvesant, 18 Wend. 257; Jarvis v. Buttrick, 1 Met. 480; Morton v. Perry, Ib. 446; Fox v. Phelps, 17 Wend. 393; Wigram on Wills, 5th proposition, page 5, and cases cited in illustration thereof.

That when words, used in their strict and primary sense, are insensible, with reference to extrinsic circumstances, the court may look to those circumstances to see whether the meaning would be sensible in any popular or secondary sense, of which, with reference to those circumstances, they are capable, (third proposition, Wigram on Wills,) and that even without reference to such distinction, the court may look into the facts, where the construction claimed would render the devise or bequest inoperative. Smith v. Smith, 1 Edw. Ch. 189; Whilden v. Whilden, Riley's Ch. 205; Trustees v. Peaslee, 15 N. H. 317; Kinsey v. Rhem, 2 Iredell, 192; Ayres v. Weed, 16 Conn. 291; Hand v. Hoffman, 3 Halstead, 71; Allen v. Lyons, 2 Wash. C. C. R. 475, and cases cited of misnomer and misdescription generally. And that even the declarations of the testator, to prove a fact collateral to the question of intention in aid of the interpretation of words, may be admitted in evidence. 1 Greenl. Ev. § 291 and note; Trustees v. Peaslee, 15 N. H. 317; Ryerss v. Wheeler, 22 Wend. 148.

The plaintiffs' counsel will, moreover, in aid of the offer of evidence to show the inadequacy of the personal estate to satisfy the previous legacies, insist on the assertion of the substantive fact of a 'considerable surplus,' by the testator himself, which was only true upon the hypothesis that he did include real estate, in his estimate and devise, as necessitating a reference to the actual condition of his affairs at the time of making his will, for the purpose of showing that there was no such property as he is supposed to have intended by the word 'surplus,' while there was property answering the description of a surplus upon which the will might operate.

In further support of the proposition that the construction of the will in question may be aided and controlled by the proof of extrinsic facts and circumstances, the counsel for the plaintiffs in error will refer also to 1 Jarm. on Wills, 355, and note 1; Wilde's case, 6 Rep. 17; Roper, 60, 67 (3d ed.); Cartwright v. Vawdry, 5 Ves. 530; Lord Woodhouselee v. Dalrymple, 2 Mer. 419, Rose v. Bartlett, Cro. Car. 293; Davis v. Gibbs, 3 P. Wms. 26; Knottsford v. Gardiner, 2 Atk. 450; Thompson v. Lawley, 2 B. & P. 403; Day v. Trig, 1 P. Wms. 286; Fonnereau v. Poyntz, 1 Bro. C. C. 472; Druce v. Dennison, 6 Ves. 397; Finch v. Inglis, 3 Bro. C. C. 420; Attorney-General v. Grote, 3 Mer. 316; Colpoys v. Colpoys, Jac. 463; Smith v. d. Doe Jersey, 2 Brod. & Bingh. 553; Jeacock v. Falconer, 1 Bro. C. C. 296; Selwood v. Mildmay, 3 Ves. 306; Doe d. Belasyse v. Lucan, 9 East, 448; Attorney-General v. Vigor, 8 Ves. 256; Standen v. Standen, 2 Ves. 589; 3 Kent, 334, 335; Lowe v. Lord Huntingtower, 4 Russ. 532; 8 Rep. 155; Rewalt v. Ulrich, 11 Har. 388.

The points made by Mr. Loomis and Mr. Stanton were the following:——

1. In the disposition, by the will of Michael Allen, of the surplus remaining after the payment of all claims and bequests, there is neither doubt, uncertainty, nor ambiguity.

2. If that disposition be doubtful or uncertain, it must receive appropriate construction from the words of the will itself, and no parol proof or declaration ought to be admitted out of the will to ascertain it. Bradford v. Bradford, 6 Wharton, 244; Weatherhead's Lessee v. Baskerville et al. 11 How. 357, 358, 359; Murrell v. Livermore, 7 Eng. Com. Law, 9; 5 Barn. & Ald. 18.

3. In determining such construction, the heir at law is not, and especially those standing in the place of the common-law heir are not, to be disinherited, except by express devise, or by implication so inevitable that an intention to the contrary cannot be supposed. 1 Powell on Devises, 199; French v. M'Ilhenny, 2 Binney's Rep. 20; Clayton v. Clayton, 3 Binney's Rep. 484; Brown v. Dysinger et al. 1 Rawle, 415; Finley v. King's Lessee, 3 Pet. 379; Bradford v. Bradford, 6 Wharton, 244; Doe on dem. Spearing v. Buckner, 6 Term Rep. 611, 612, 613; Hayden v. Stoughton, 5 Pick. 536; Roosevelt v. Heirs of Fulton, 7 Cowen, 79, 187; Roper on Wills, 352, 358.

4. The application of the principles embraced in the last two points to the construction of the disposition before mentioned, will show clearly and conclusively that the title of the heirs of the testator to the real estate, of which he died seised, has not been thereby devested.

5. Parol evidence cannot be adduced to contradict, add to, or explain the contents of a will. Parol evidence of the actual intention of a testator is inadmissible for the purpose of controlling...