Pocock v. Redinger

• Decision Date: 21 December 1886
• Docket Number: 12,846
• Citation: 9 N.E. 473,108 Ind. 573
• Parties: Pocock et al. v. Redinger
• Court: Indiana Supreme Court

9 N.E. 473

108 Ind. 573

Pocock et al. v. Redinger

No. 12,846

Supreme Court of Indiana

December 21, 1886

From the Marshall Circuit Court.

Judgment affirmed.

A. C Capron and A. Johnson, for appellants.

M. A O. Packard, O. M. Packard and C. P. Drummond, for appellee.

OPINION

Elliott, C. J.

The will of Catherine E. Redinger contains, among others, this provision: "As to my real estate, I dispose of it as follows: I own the east half of the northwest quarter of section thirty-four, township thirty-two north, of range three east, in Marshall county, Indiana, and I hereby give and bequeath the same to my son, Charles A. Redinger, as and for his own absolute property forever. I also own the east forty-six acres off of the south sixty-three acres of the south half of the southwest quarter of section twenty-eight, township thirty-two north, of range three east, Marshall county, Indiana, which, should the same remain undisposed of at my decease, I desire my executor to appraise and sell."

The testatrix did not own the east half of the quarter section described in the will, but she did own the west half of that quarter section. The facts given in evidence show very clearly that she intended to devise to the appellee the quarter section owned by her, and that she made a mistake in specifically describing it.

The question in the case, as stated by counsel, is, Whether it was competent to show by extrinsic evidence that a mistake was made in describing the land devised?

The general rule undoubtedly is, as the appellants contend, that a mistake in a will can not be shown by parol evidence. Judy v. Gilbert, 77 Ind. 96, and cases cited; McAlister v. Butterfield, 31 Ind. 25; Funk v. Davis, 103 Ind. 281, 2 N.E. 739. But we do not regard this case as within the rule, for, in our opinion, the mistake is shown by the words of the will when applied to the subject-matter upon which, as its language discloses, it was intended to operate. The words of the will show that the provision under consideration was intended to devise the land owned by the testatrix, for she introduces the subject by the words, "As to my real estate," and then says: "I own the east half of the northwest quarter of section thirty-four," and "I devise the same" to Charles A. Redinger, thus clearly showing that she meant to devise the land she owned. The words used in disposing of the second of the two parcels which she devised add strength to our conclusion, for the testatrix says: "I also own the east forty-six acres off of the south sixty-three acres of the south half of the southwest quarter of section twenty-eight." The mistake appears, from the language of the will, without the aid of verbal declarations, for, when it was shown that the testatrix did not own the east half of the quarter section, but did own the west half, no parol evidence was necessary to prove that she had made a mistake in drafting her will.

The case is within the rule declared in Cleveland v. Spilman, 25 Ind. 95, and Black v. Richards, 95 Ind. 184. The principle upon which the rule depends is, that where the will...