Kurtz v. Hibner

• Decision Date: 30 September 1870
• Parties: CHARLES KURTZ et al.v.JOHN HIBNER et al.
• Court: Illinois Supreme Court

55 Ill. 514

1870 WL 6462 (Ill.)

8 Am.Rep. 665

CHARLES KURTZ et al.

v.JOHN HIBNER et al.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding. The opinion states the case.

Mr. D. H. PINNEY, for the appellants.

In this case the testator intended to devise land which he owned, the description of which differed from that named in the will, in the number of the section. The devisee could show by extrinsic evidence that the draughtsman of the will, by mistake, inserted the wrong numbers in attempting to describe the land intended to be devised.

To ascertain the intention of the testator, we must not only look at the whole will, but must also inquire into the circumstances which surrounded him when he made his will. All evidence that has a bearing upon the construction of the will is admissible, and for the purpose of ascertaining the object of testator's bounty, or the quantity of interest intended to be given, the court will inquire into every material fact relating to the person or property. 1 Greelf. Ev. secs. 286-7; 1 Redfield on Wills, 503, prop. v. in note 621; 7 Met. 205, 208, 209, 418; Bradley v. Washington, Alexandria & Georgetown Steam Packet Co. 13 Peters, 89.

The case of Tucker et al. v. Seamen's Aid Society, 7 Metc. 188, is a leading case on this question. 1 Redfield on Wills, 584-5, 587-8; Domestic and Foreign Missionary Society's Appeal,30 Penn. St. R. 425; Button v. American Tract Society, 23 Vt. 336; Winkley v. Kaime, 32 N. H. 268; Riggs v. Myers, 20 Mo. 239.

Parol evidence was admissible on other grounds; for, after rejecting the number of the section, enough remains to show the property intended. Riggs v. Myers, 20 Mo. 242-3; 19 Johnson, 449; 21 Wend. 653; Cooper v. Bigley, 13 Mich. 463; Prigry v. Watkins, 15 Vt. 479.

The evidence was admissible under the rule that parol evidence is admissible to explain a latent ambiguity. 1 Redfield, 587-8; 2 Wash. C. C. 475; Wigram on Evidence, secs. 184, 186; 1 Johns. Ch. R. 190. Mr. W. C. GOODHUE, for the appellees.

Equity, in no proceeding, however direct, affords any remedy against mistakes made in a last will and testament,--mistakes that can only be made out by averment and proof outside of the will. 1 Story's Eq. sec 179; Millner v. Millner, 1 Ves. 106 Mellish v. Mellish, 4 ib. 49; Phillips v. Chamberlain, ib. 51-57; Langston v. Langston, 8 Bligh, 167; Miller v. Travers, 8 Bing. 244; Mann v. Mann, 1 Johns. Ch. 231; Jackson v. Sill, 11 Johns. 212; 1 Redfield on Wills, 498.

This case presents the simple question of construction. What is the meaning of the will as made by the testator? The description of the land, which is sought to be changed by extrinsic evidence, is too clear to require the aid of such evidence to identify it. There is no ambiguity to be explained.

In the case of Mann v. Mann, 1 Johns. Ch. 231, Chancellor KENT uses the following language:

“It is a well settled rule that seems not to stand in need of much proof or illustration, for it runs through all the books, from Cheney's case (5 Co. Rep. 68,) down to this day, that parol evidence can not be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specified cases: first, where there is a latent ambiguity arising, dehors the will, as to the person or subject matter meant to be described; and second, to rebut a resulting trust. All the cases profess to go upon one or the other of these grounds.”

And see also 1 Redfield on Wills, 573; Mann v. Mann, 14 Johns. 1; Tucker et al. v. Seamen's Aid Society et al. 7 Metc. 188: Smith v. Bell, 6 Peters, 74; Spencer v. Higgins, 22 Conn. 526; 12 Grat. (Va.) 208; Perry v. Hunter, 2 R. I. 80; Brearly v. Brearly, 1 Stockt. Ch. 21.

In Worthington et al. Exrs. v. Hyler et al. 4 Tyng's Mass. 205, the court uses the following language: “It seems to be a general rule, that when the description of the estate intended to be conveyed, includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass, except such as will agree with every particular of the description.” The same rule is approved in the following authorities: Jackson v. Clarke, 7 Johns. 217; Jackson v. Wilkinson, 17 ib. 146; Loomis v. Jackson, 19 ib. 448; Jackson v. Loomis, 18 ib. 81; Jackson v. Morse, 6 Cow. 705.

There is no possible form in which the rule can be stated, that can authorize the rejection of an element of description, so important as the number of the section, which alone could give us the boundaries of the real estate sought to be devised.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

John Hibner and others, children and heirs at law of John Hibner, deceased, filed their bill for partition, in the circuit court of Will county, against appellants, Charles, Elizabeth, and James Kurtz.

The bill alleges, that by the death of the deceased, complainants and defendants, except James, became seized in fee, as tenants in common, of the west half of the south-west quarter of section 33, town 35, range 10 east, eighty acres, and the south half of the east half of the south-east quarter of section 32, town 35, range 10 east, forty acres; that Elizabeth was entitled to the undivided one-sixth part of the lands; that James claimed title to the forty acre tract; and that Elizabeth is a daughter of the deceased, and the wife of Charles. The bill is in the usual form.

Appellants answered, admitting the allegations of the bill, except as to the intestacy of Hibner, and averred that he devised the eighty acre tract to Elizabeth, and the forty acres to James; that there was a mis-description of the lands in the will, and that Charles and Elizabeth had been in possession of, and made valuable improvements upon, the eighty acre tract, upon the promise of the deceased, that he would give the same to Elizabeth.

The usual replication was filed, cause heard, and decree rendered for partition. To reverse this decree appellants have brought the case to this court. The circuit court refused to hear parol evidence, to explain the language of the will. The only provisions of the will to be considered are the following:

“ Third. I give and bequeath to my daughter, Elizabeth Kurtz, all that tract or parcel of land situate in the town of Joliet, Will county, Illinois, and described as follows: the west half of the south-west quarter of section 32, township 35, range 10, containing eighty acres, more or less, together with all the appurtenances thereunto belonging, or in any wise appertaining.

Seventh. I give and bequeath to my grand-son, James Kurtz, all that part or parcel of land described as the south half of the east half of the south quarter section 31, in township 35, range 10, containing forty acres, more or less.”

Appellants offered to prove that the testator, at the time of his death, owned only one eighty acre tract, in township thirty-five, which was the one described in the bill; that a mistake was made in drafting the will, by the insertion of the words “section thirty-two,” instead of “section thirty-three”; that Charles and Elizabeth Kurtz had been in the actual possession of the tract for a number of years, and upon the repeated promise of the testator in his life time, that he would give the same to Elizabeth, had made lasting and valuable improvements, at their own expense, on the land,--had fenced it, and erected thereon a dwelling house, barn and corn cribs, dug wells and set out fruit trees.

Appellants also offered to prove that James Kurtz, at the time of the death of the testator, was in the actual possession of the forty acre tract, as the tenant of the deceased, and that the draughtsman of the will, by mistake, inserted the word “one,” after the words “section thirty,” instead of “two,” so as to bequeath to James land in section thirty- one instead of section thirty- two. This evidence was rejected by the court, on the hearing. It has been strongly urged by counsel for appellants, that this evidence should have been received, for the purpose of ascertaining the intention of the testator. The will devises land to Elizabeth in section thirty- two; the parol evidence offered was for the purpose of locating the land in section thirty- three. The will devised to James “the south half of the east half of the south quarter of section thirty-one.” It was proposed to show, by parol evidence, that the testator intended to devise to James “the south half of the east half of the southeast quarter of section thirty-two.”

The law requires that all wills of lands shall be in writing, and extrinsic evidence is never admissible, to alter, detract from, or add to, the terms of a will. To permit evidence, the effect of which would be to take from a will plain and unambiguous language, and insert other language in lieu thereof, would violate the foregoing well established rule. For the purpose of determining the object of a testator's bounty, or the subject of disposition,...