Mitchell v. Walker
| Decision Date | 13 June 1856 |
| Parties | Mitchell <I>vs.</I> Walker. |
| Court | Kentucky Court of Appeals |
APPEAL FROM MADISON CIRCUIT.
S. Turner for appellant —
COPYRIGHT MATERIAL OMITTED
Caperton and Runyan for appellee —
The only real question in this case is, whether the title shown to have been in Stephen Walker at his death in 1817, and therefore subject to be disposed of by his will, was in fact so disposed of by the devise in which, giving to his wife various articles and species of property during her life, he uses, in the midst of the enumeration, the words "and also my land and mansion house." He says afterwards, "if she should marry, I wish her to have all the above mentioned property that is devised to her except the land, of which I wish her to have only one-third, including the mansion house." There is no further mention either of land or mansion house. But having made this devise to his wife, and other devises of slaves to his children by his first wife, the testator directs the remaining part of his estate, "to-wit: negroes, horses, cattle, sheep, and hogs, and every species of property not otherwise disposed of, to be sold and equally divided together with $250 of bank stock, between his five last children;" and further, that all the property willed to his wife shall, at her death, descend to his five last children.
By this will the testator evidently disposes, and intends to dispose of, his whole estate, and every part of it. And upon the assumption that he owned two tracts of land in the same neighborhood, on one of which he lived and had his mansion house, while the other, of inferior quality, was two or three miles distant, and without inclosure or improvement, the question as between his widow and the younger children would be, whether this latter tract is included in the devise to the wife or in the residuary devise to the children. Upon the face of the will the direct devise of the testator's land to his wife is broad enough to include the whole, though in two tracts, and must be considered as including the whole, unless there be something in that or other clauses of the will to restrict it. The words "my land" in a gift mean, and are sufficient to include, all my land, and they do include all unless their then natural import is restricted by the context of words and circumstances. The additional words "and mansion house," though unnecessary, because the mansion house would have passed without them, if entitled to any effect as tending to confine the gift to the tract on which the mansion house is situated, do but suggest the possibility that such may have been the intention, and if there were nothing else, could have scarcely any appreciable influence on the construction of the devise. But still confining our view to the face of the will, we find that in providing for the case of his widow's marriage, the testator directs that she shall have one-third of the land devised to her, including the mansion house. And as there is no ground to suppose that he intended, in that event, to reduce her interest to less than the law would give her if he made no will, but the presumption on the face of the will is that he did not so intend, then, as by this devise he supposed and intended that she should have one-third of all in case of marriage, it follows that in devising his land to her in the first instance, he intended and supposed that she would have the whole for life if she should not marry. If he did not intend his wife to have both tracts, the one on which the mansion house was not situated was certainly a part of the residuum; and if he did not suppose that all of his land had been devised to her, it is scarcely to be doubted that in specifying various items of that residuum he would not have failed to specify land, the most important species of property. And although land would pass under the general terms of the residuary clause, the omission to name land furnishes a strong presumption that there was no land undevised, or at least that he supposed there was none. And presuming, as we do, that the devise to the wife was in part intended to secure through her a benefit to the younger children, no motive is seen for excluding from the devise to her the unimproved tract, which might be brought into use.
In applying or giving effect to the words "my land," which refer to an extrinsic fact and object, it is of course necessary to resort to extrinsic facts and evidence to ascertain the locality and extent, that is the identity of the land embraced within these descriptive terms. But when it is ascertained that the testator owned two tracts of land, both of which may be included in the description, this fact alone does not raise a question whether both tracts are included and pass by the devise. If both belong absolutely to the testator at the date of his will and at his death, both are certainly included in the general words "my land," and both necessarily pass by them, unless their comprehensive import is otherwise restricted. The question in such a case arises on the words of the will, to be elucidated by such extrinsic evidence or facts as by explaining the circumstances and subjects or objects to which they refer, and the testator's relation to them, may show the sense in which the words were used, and give them application. This is a question, however, arising upon the face or words of the will, and does not admit of extrinsic evidence, further than to illustrate the meaning and application of the words. If, with such aids, the question of intention be still doubtful, the case is one of latent ambiguity, for which there is no remedy by a resort to direct extrinsic evidence of actual intention. This is only admissible in case of a latent ambiguity, which arises, not when there are two or more objects of a like kind, which may both be included in the general terms used to describe what is given, but only when there are two or more objects, persons, or things, to each of which the terms of the gift, though not embracing all, are equally applicable. As if a man devise his manor of S., and it be made to appear that he has two manors of that name, it may be proved by his words and acts which of them he intended to give. But we know of no case in which it has been held that when the words used in describing the subject of the gift comprehended several objects, such evidence is admissible to exclude from the description one or more of them, on the ground that they, or some of them, were not actually intended to be included. In such a case the intention is to be sought for in the words of the will, and although parol testimony may be sometimes resorted to for ascertaining the intended sense of the words, it cannot be resorted to for the purpose of ascertaining and giving effect to a secret intention inconsistent with the words themselves, or restrictive of their natural and legal import.
It is contended, however, that there are facts in this case which authorize the inference, consistent with the peculiar language of the devise to the wife, that the testator did not know that he owned any other land but the tract on which his mansion was situated. And on the ground that if he did not know that the land in contest belonged to him, or that if he believed it did not belong to him h...
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