Patch v. White

• Decision Date: 01 March 1886
• Citation: 117 U.S. 210,29 L.Ed. 860,6 S.Ct. 710
• Parties: PATCH v. WHITE. Filed
• Court: U.S. Supreme Court

6 S.Ct. 710

117 U.S. 210

29 L.Ed. 860

PATCH v. WHITE.

Filed March 1, 1886.

Calderon Carlisle and J. D. McPherson, for plaintiff in error.

[Argument of Counsel from pages 211-212 intentionally omitted] W. D. Davidge and J. H. Gordon, for defendant in error.

BRADLEY, J.

Ejec

tment for two undivided thirds of a lot of land in Washington city, known on the plats and ground-plan of the city as lot No. 3, square 406, fronting 50 feet on E street north. Plea, not guilty. The plaintiff, John Patch, now plaintiff in error, claims the lot under Henry Walker, devisee of James Walker. The latter died seized of the lot in 1832, and by his last will, dated in September of that year, devised to Henry Walker as follows, to-wit: 'I bequeath and give to my dearly-deloved brother, Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected and appurtenances thereto belonging.' The testator did not own lot No. 6, in square 403, but did own lot No. 3, in square 406, the lot in controversy; and the question in the cause is whether the parol evidence offered, and by the court provisionally received, was sufficient to control the description of the lot so as to make the will apply to lot No. 3, in square 406. The judge at the trial held that it was not, and instructed the jury to find a verdict for the defendant. The court, in general term, sustained this ruling, and rendered judgment for the defendant, and that judgment is brought here by writ of error for review upon the bill of exceptions taken at the trial.

The testator at the time of making his will, and at his death, had living a wife, Ann Sophia, an infant son, James, a mother, Dorcas Walker, three brothers, John, Lewis, and Henry, (the latter being only eleven years old,) and three sisters, Margaret Peck, Louisa Ballard, and Sarah McCallion, and no other near relations, and all of these are provided for in his will if the change of description of the lot given to Henry is admissible; otherwise Henry is unprovided for, except in a residuary bequest of personal property in connection with others. The following are the material clauses of the will: After expressing the ordinary wishes and hopes with regard to the disposal of his body and a future life, the testator adds: 'And touching wordly estate, wherewith it has pleased Almighty God to bless me in this life, I give, devise, and dispose of the same in the following manner and form.' He then gives and bequeaths to his wife one-third of all his personal estate, forever, and the use of one-third of his real estate for life, remainder to his infant son, James. He then proceeds: 'I bequeath and give to my dear and affectionate mother, Dorcas Walker, forever, all of lot numbered seven, in square one hundred and six, as laid down on the plan of the city of Washington, together with all the improvements thereon erected and appurtenances thereto belonging. I bequeath and give to my dearly-beloved brother John Walker, forever, all of lot numbered six, in square one hundred and six, with the two-story brick house, back building, and all appurtenances thereto belonging. I bequeath and give to my dearly-beloved brother, Lewis Walker, forever, lots twenty-three, twenty-four, and twenty-five, in square numbered one hundred and six, together with a two-story brick building, with a basement story back building, and all appurtenances thereto belonging and erected on one or more of said lots. I bequeath and give to my dearly-beloved brother Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected and appurtenances thereto belonging.'

Then, after giving to his three sisters and his infant son, respectively, other specific lots, with houses thereon, he proceeds as follows: 'I also bequeath and give to my infant son, James Walker, forever, the balance of my real estate believed to be and to consist in lots numbered six, eight, and nine, with a house, part brick and part frame, erected on one of said lots, in square one hundred and sixteen; lots thirty-one, thirty-two, and thrity-three, in square numbered one hundred and forty, and a slaughter-house erected on one of said lots; lots numbered eight and eleven, in square numbered two hundred and fifty; and lot numbered twenty-eight, in square numbered one hundred and seven; and, further, I bequeath and give to my infant son, James Walker, one thousand dollars, to be paid out of my personal estate, and applied at the discretion of his guardian hereinafter appointed, for the education of my son, James Walker.' He then adds: 'The balance of my personal estate, whatever it may be, I desire shall be equally divided between my mother, Dorcas Walker, my sister Sarah McCallion, and my brothers, Jno., Lewis, and Henry Walker.'

It is clear from the will itself: (1) That the testator intended to dispose of all his estate. (2) That he believed he had disposed of it all in the clauses prior to the residuary clause, except the specific lots thereby given to his son. (3) That when he gave to his brother Henry lot number 6, in square 403, he believed he was giving him one of his own lots. On general principles he would not have given him a lot which he did not own; and he expressly says: 'Touching worldly estate, wherewith it has pleased Almighty God to bless me in this life, I give, devise, and dispose of the same in the following manner.' (4) That he intended to give a lot with improvements thereon erected.

Now, the parol evidence discloses the fact that there was an evident misdescription of the lot intended to be divided. It shows First, as before stated, that the testator at the time of making his will, and at the time of his death, did not, and never did, own lot 6, in square 403, but did own lot 3, in square 406; secondly, that the former lot had no improvements on it at all, and was located on Ninth street, between I and K streets, while the latter, which he did own, was located on E street, between Eighth and Ninth streets, and had a dwelling-house on it, and was occupied by the testator's tenants,—a circumstance which precludes the idea that he could have overlooked it. It seems to us that this evidence, taken in connection with the whole tenor of the will, amounts to demonstration as to which lot was in the testator's mind. It raises a latent ambiguity. The question is one of identification between two lots, to determine which was in the testator's mind,—whether lot 3, square 406, which he owned, and which had improvements erected thereon, and thus corresponded with the implications of the will, and with part of the description of the lot, and rendered the devise effective; or lot 6, square 403, which he did not own, which had no improvements thereon, and which rendered the devise ineffective.

It is to be borne in mind that all the other property of the testator except this one house and lot was disposed of to his other devisees,—at least, that was his belief as expressed in his will, and there is no evidence to the contrary; while this lot (though he believed he had disposed of it) was not disposed of at all, unless it was devised to his brother Henry, by the clause in question. In view of all this, and placing ourselves in the situation of the testator at the time of making his will, can we entertain the slightest doubt that he made an error of description, so far as the numbers in question are concerned, when he wrote or dictated the clause under consideration? What he meant to devise was a lot that he owned; a lot with improvements on it; a lot that he did not specifically devise to any other of his devisees. Did such a lot exist? If so, what lot was it? We know that such a lot did exist, and only one such lot in the world, and that this lot was the lot in question in this cause, namely, lot number 3, in square 406. Then is it not most clear that the words of the will, 'lot numbered six, in square four hundred and three,' contained a false description. The testator, evidently by mistake, put 'three' for 'six,' and 'six' for 'three,' a sort of misspeech to which the human mind is perversely addicted. It is done every day even by painstaking people. Dr. Johnson, in the preface to his Dictionary, well says: 'Sudden fits of inadvertence will surprise vigilance, slight avocations will seduce attention, and casual eclipses of the mind will darken learning.' Not to allow the correction of such evident slips of attention, when there is evidence by which to correct it, would be to abrogate the old maxim of the law, 'falsa demonstratio non nocet.'

It is undoubtedly the general rule that the maxim just quoted is confined in its application to cases where there is sufficient in the will to identify the subject intended to be devised independently of the false description, so that the devise would be effectual without it. But why should it not apply in every case where the extrinsic facts disclosed make it a matter of demonstrative certainty that an error has crept into the description, and what that error is? Of course the contents of the will, read in the light of the surrounding circumstances, must lead up to and demand such correction to be made. It is settled doctrine that as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence. Such an ambiguity may arise upon a will, either when it names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or, secondly, it may arise when the will contains a misdescription of the object or subject; as where there is no such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator. The first kind of ambiguity, where there are two persons or things equally answering the description, may be removed by any evidence that will have...