McMahan v. Hubbard

• Court: Missouri Supreme Court
• Writing for the Court: GANTT, P. J.
• Citation: McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481 (Mo. 1909)
• Decision Date: 30 March 1909
• Parties: DORA McMAHAN et al. v. NANNIE E. HUBBARD, Appellant

118 S.W. 481

217 Mo. 624

DORA McMAHAN et al. v. NANNIE E. HUBBARD, Appellant

Supreme Court of Missouri, Second Division

March 30, 1909

Appeal from Newton Circuit Court. -- Hon. F. C. Johnston, Judge.

Affirmed.

Horace Ruark, James H. Pratt and George Hubbert for appellant.

(1) The land being described in the will as in section 33, it was error for the court to admit extrinsic evidence to show that the testator intended to convey land in section 28, other and different land from that described. Even a court of equity cannot reform a will or a gratuitous devise therein upon the ground of mistake. It does not stand upon the ground of mistake in executing or making a contract for a valuable consideration. Goode v. Goode, 22 Mo. 518; Kurtz v. Hibner, 55 Ill. 514; Lomax v. Lomax, 218 Ill. 629; Howard v. Evans, 24 App. D. C. 127; Oliver v. Henderson, 121 Ga. 836; In re Lynch Estate, 142 Cal. 373; Godfrey v. Wingert, 189 Ill. 500; McGovern v. McGovern, 75 Minn. 314; Engelthaler v. Engelthaler, 196 Ill. 230; Hull v. Hull, 9 Ohio Cir. Dec. 19; Jennings v Brizeadine, 44 Mo. 332; Sturgis v. Work, 122 Ind. 134; Starkweather v. American Bible Society, 27 Ill. 50; Van Vachten v. Sill, 11 Johns. 201; Ehrman v. Haskins, 67 Miss. 192. But this is a law case, and the surplusage in the petition relating to a supposed error in drafting the will cannot be regarded as changing the nature of the action into an equitable one, nor confer authority to reform the will or construe it. If however, the section number given applied apparently to the last forty-acre tract alone, then the defect is patent upon the face of the will itself and extrinsic evidence is not admissible to remove such a defect. For there is no general description to be applied. Mudd v. Dillon, 166 Mo 110. There must be a latent ambiguity before the courts can resort to parol evidence to determine the testator's intention. Krechter v. Grofe, 166 Mo. 385; Morris v. Hall, 102 Mo.App. 449; Hawkins v. Garland, 76 Va. 149; Moreland v. Beady, 8 Ore. 303; Hart v. Stover, 164 Pa. 523; Hand v. Hoffman, 8 N. J. L. 76; Brown v. Quintal, 177 N.Y. 75; Stoner v. Freeman, 6 Mass. 435; Marshall v. Haney, 4 Md. 498; Hill v. Felton, 47 Ga. 455; Chambers v. Ringstaff, 69 Ala. 140; Decker v. Decker, 121 Ill. 341. And the fact that the testator did not own the land devised but owned other land to which the description would apply by the addition or alteration of a number does not change the rule or make parol evidence admissible for such purpose. Lomax v. Lomax, 218 Ill. 629; In re Lynch, 142 Cal. 373; Sturgis v. Work, 122 Ind. 134; Funk v. Davis, 103 Ind. 281; Fitzpatrick v. Fitzpatrick, 36 Iowa 674; Nevins v. Martin, 30 N. J. L. 465; Kurtz v. Hibner, 55 Ill. 514; Bishop v. Morgan, 82 Ill. 351; Bingel v. Volz, 142 Ill. 214; Judy v. Gilbert, 77 Ind. 96; McGovern v. McGovern, 75 Minn. 314; Sherwood v. Sherwood, 45 Wis. 357; Starkweather v. American Bible Society, 27 Ill. 50; Senger v. Senger, 81 Va. 687; Jones v. Quattlebaum, 31 S.C. 608; Oades v. Marsh, 11 Mich. 168; Cleveland v. Havens, 78 Am. Dec. 90; Wilkins v. Allen, 18 How. 385; Warner v. Miltenberger, 21 Md. 264; Waugh v. Waugh, 28 N.Y. 94; Best v. Hammond, 55 Pa. 409. Only one description of the land is given in the McMahan will, if this is rejected, nothing is left by which to identify the land. The question thus presented is radically different from that presented by a line of cases where two contradictory descriptions are given in a will and where it is held that one of the descriptions may be rejected and the land identified by the other. (2) It was error for the court to attempt to adjudicate the title while contest of the codicil to the will, materially altering the apparent interests of the parties, was pending. The effect of such contest was to vacate the action of the probate court, or at least suspend its operation, and have the question tried anew in the circuit court, as if on appeal. Hogan v. Hinchey, 195 Mo. 527; State ex rel. v. Guinotte, 156 Mo. 513; Schaff v. Peters, 111 Mo.App. 488; Benoist v. Murrin, 48 Mo. 48; Lamb's Admr. v. Helm's Admr., 56 Mo. 432. And the statutory contest is the only proceeding in or by which the issues thus made can be tried. Stevens v. Oliver, 200 Mo. 514; Stowe v. Stowe, 140 Mo. 594; Jourden v. Meier, 31 Mo. 40; Stevens v. Larwell, 110 Mo.App. 159. The pendency of the suit to contest the codicil was properly set up in the answer. Matters in bar and in abatement should be pleaded in the answer, along with matters going to the defense of the merits of the action. And it was error for the court to exclude the evidence thereof or ignore issues thereon. Cohn v. Lehman, 93 Mo. 574; Baxter v. Railroad, 198 Mo. 1; Little Rock Trust Co. v. Railroad, 105 Mo. 682; Meyer v. Insurance Co., 184 Mo. 481; 1 Ency. Pl. and Pr., 1. The probate of the codicil was had August 24th. On August 26th plaintiffs filed their present suit and August 30th defendants filed suit to contest the codicil. Summons was served upon defendants August 30th.

R. M. Sheppard and John T. Sturgis for respondents.

(1) The presumption is that the testator meant to dispose of his whole estate and not to die intestate as to any part of it. And to prevent the incongruous condition of the estate passing partly by will and partly by descent, words may be supplied, transposed or rejected, and where this can be done descriptions will be so corrected and interpreted as to include the whole property. Robards v. Brown, 167 Mo. 447; Willard v. Darrah, 168 Mo. 670; Whitcomb v. Rodman, 156 Ill. 116; Hurst v. Von De Veld, 158 Mo. 248; Watson v. Watson, 110 Mo 171; Simons v. Cabanne, 177 Mo. 336; Meiners v. Meiners, 179 Mo. 614; Grace v. Perry, 197 Mo. 560; Korf v. Gerichs, 145 Ind. 134; Carney v. Kain, 40 W.Va. 758. (2) Extrinsic and parol evidence is always admissible to show what land the testator owned at the time of making the will and at his death, and it is presumed that he intended to convey his own land and not that of another. Board of Trustees v. May, 201 Mo. 368; Patch v. White, 117 U.S. 210; Riggs v. Myers, 20 Mo. 243; Creasy v. Alverson, 43 Mo. 22; Wolf v. Dyer, 95 Mo. 550; Presnell v. Headly, 141 Mo. 193; Stewart v. Stewart (Iowa), 65 N.W. 976; Eckford v. Eckford (Iowa), 58 N.W. 1093; Pate v. Bushong (Ind.), 63 L. R. A. 602 (overruling Sturgis v. Work, 122 Ind. 134, and Funk v. Davis, 103 Ind. 281, cited by appellants); 2 Underhill on Wills, 1008. (3) Aided by the foregoing rules, the court will, with the aid of extrinsic evidence, put itself in the situation of the testator, apply the description given in the will to the locus in quo, ascertain the intention of the testator, and carry out that intention even if it be necessary to reject some words and supply others, reject a particular description and use a general one, or vice versa, and, in a word, give to the person designated the property intended. Thompson v. Thompson, 115 Mo. 68; Briant v. Garrison, 150 Mo. 670; Hoffman v. Reil, 27 Mo. 554; Wolf v. Dyer, 95 Mo. 550; Riggs v. Myers, 20 Mo. 243; Board of Trustees v. May, 201 Mo. 360; Willard v. Darrah, 168 Mo. 660; Creasy v. Alverson, 43 Mo. 13; Gordon v. Burris, 141 Mo. 611; Seebrock v. Fedawa (Neb.), 50 N.W. 270; Whitcomb v. Rodman, 156 Ill. 116, 28 L. R. A. 149 (overruling Bingle v. Volz, 142 Ill. 214, cited by appellants); Pate v. Bushong (Ind.), 63 L. R. A. 593 (overruling Sturgis v. Work, 122 Ind. 134, and Funk v. Davis, 103 Ind. 281, cited by appellants); Patch v. White, 117 U.S. 210; Wheat v. Pope (In re Pope's Estate), (Minn.), 97 N.W. 1046; Merrick v. Merrick, 37 Ohio St. 132; Covert v. Sebern (Iowa), 35 N.W. 636; Stewart v. Stewart (Iowa), 65 N.W. 976; Flynn v. Holman (Iowa), 94 N.W. 447; Eckford v. Eckford, 58 N.W. 1093, 26 L. R. A. 370; Tobin v. Tobin (Ind.), 69 N.E. 440; Priest v. Lackey, 140 Ind. 399; Huffman v. Young, 170 Ill. 290; Page on Wills, p. 976, sec. 819. (4) The description in a will of land not owned by the testator creates a false description which will be rejected. Falsa demonstratio non nocet. It creates a latent ambiguity which may be removed by extrinsic evidence. "It is settled doctrine that as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence," and it arises when "the thing does not belong to the testator." Patch v. White, 117 U.S. 210; Pate v. Bushong (Ind.), 63 L. R. A. 601; Page on Wills, p. 976, sec. 819; Whitcomb v. Rodman, 156 Ill. 116; Cleveland v. Spillman, 25 Ind. 95; Govin v. Metz, 79 Hun 461; Peters v. Porter, 60 How. Pr. 422; Rook v. Wilson, 142 Ind. 24. (5) If the testator does not own the land particularly described in the will, then the court can reject such part of the description as is shown to be false when applied to the locus in quo; and if enough remains to identify the land owned by the testator, by the aid of extrinsic evidence, then the devise will be upheld. Any expression in the will indicating that the land meant to be devised was owned by testator; any reference to external objects or monuments, and even the size or shape of the whole, or some particular part of the land devised, will be seized upon as identifying the land. Briggs v. Myers, 20 Mo. 239; Creasy v. Alverson, 43 Mo. 13; Rogers v. Rogers, 78 Ga. 688; Pocock v. Redinger, 108 Ind. 573; Bowen v. Allen, 113 Ill. 53; Hunt v. Devling, 8 Watts 403; Decker v. Decker, 121 Ill. 341; Wheaton v. Pope, 91 Minn. 299; Priest v. Lackey, 140 Ind. 399; Zirkle v. Leonard, 61 Kan. 636; Stewart v. Stewart, 96 Iowa 620; Wright v. Collins, 16 Ont. Rep. 182; Hickey v. Hickey, 20 Ont. Rep. 371; Page on Wills, sec. 487, p. 571. This principle is clearly recognized in such cases as Lomax v. Lomax, 218 Ill. 629, 6 L. R. A. (N. S.) 942, and Sturgis v. Work, 122 Ind. 134, relied on by appellants. (6) It is...