President of North Carolina Inst. v. Norwood

• Citation: 45 N.C. 65
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1852
• Parties: THE PRESIDENT AND DIRECTORS OF THE NORTH CAROLINA INSTITUTE OF THE DEAF AND DUMB v. JOHN W. NORWOOD, EXEC'R. OF JOHN KELLY.

45 N.C. 65

THE PRESIDENT AND DIRECTORS OF THE NORTH CAROLINA INSTITUTE OF THE DEAF AND DUMB

v.JOHN W. NORWOOD, EXEC'R. OF JOHN KELLY.

Supreme Court of North Carolina.

December Term, 1852.

In a case of latent ambiguity, evidence dehors the will or other instrument must be resorted to, to remove the doubt--the question being one of identity, or of fitting the description to the person or thing intended.

In a case of patent ambiguity, the question being one of construction, the instrument must speak for itself.

Where testator bequeathed $6,000. to the “Deaf & Dumb Institution,” and no persons of that corporate name could be found, but persons were found, by the corporate name of “President & Directors of the North Carolina Institute for the education of the Deaf & Dumb,” who are popularly known by the former name:-- Held to be a case of latent ambiguity; and the latter being identified, by extrinsic evidence, as the legatee intended, are entitled to the bequest.

NASH, C. J., dissentiente.

(The case of Taylor v. American Bible Society, 7 Ire. Eq. 201 overruled; and the cases of Bridges v. Pleasants, 4 Ire. Eq. 27; Rea v. Robeson, 5 Ire, Eq. 373, and Barnes v. Simms, 5 Ire. Eq. 392, cited and approved.)

CAUSE removed by consent of parties, from the Court of Equity for Orange county, at Fall Term, 1853. The facts of the case are sufficiently stated in the opinion delivered by this Court.J. H. Bryan, for the plaintiffs : The bequest is in these words--“I give and bequeath to the Deaf and Dumb Institution, if it can be secured, so that the principal will be secure and nothing but the interest used &c. $600, for the purpose of educating poor mutes,” &c. The corporate name of the Institution is “““The President and Directors of the North Carolina Institute for the education of the Deaf and Dumb.”

The presumption of law is, that the testator meant an institution established in the State of North Carolina, of which he was a citizen and resident. If we look out of the State, there is no rule to restrain our wanderings. We may look to Maine and California as well as to Virginia.

The bequest is, by necessary construction, to an institution having charge of the education of the deaf and dumb--having the capacity and the means to give such instruction; and the bequest is for the purpose of having the poor mutes, mentioned in the will, educated by this institution.

It is not necessary, to make a bequest effectual, that the corporate or individual name of the legatee be mentioned, provided such a description is given as to identify the legatee, or the subject of the bequest. Suppose that some individual had established an Asylum in this State for the instruction of the deaf and dumb, and a testator in making a bequest to him, instead of using his name, had described the legatee as the man who had established such an institution for the instruction &c.;--surely this description would be sufficient, not only upon the rule of id certum est &c., but upon authority. A bequest to John, Bishop of Norwich, would be good to the person who was Bishop, although his name should be William. Here, instead of an individual, a corporation is described; and the object and purpose of that institution, its office and functions are necessarily implied by the terms of the bequest--so that it is sufficiently identified.

This Court is often astute, and very properly so, in endeavoring to avoid a patent ambiguity, by rules of construction; but this is a case of latent ambiguity, and the Court is permitted to look outside the will to relieve it; and if a corporation is found which is popularly known by the name mentioned in the will, no rule of law is violated by adopting that corporation as the object of the testator's bounty. The evidence then is merely used to identify the object of the bequest--not to enlarge, or vary or add to the bequest.

Upon the will no ambiguity appears, for there may very well be an institution called the Deaf and Dumb Asylum. Upon the evidence or admissions of the answer, we find that there is an Institution incorporated by the name of the President and Directors, &c., but well known in the community as the Deaf and Dumb Institution, the name used by the testator. The Court then have only to apply the description to the object thus ascertained. The authorities show that this may be done. (Case of Lynn regis, 10 (Co.) Rep. 126; 1 Bos. & P. 41; Angell on Corp. 77, 78; 1 Chit. Cr. Law, 145 (215.)

Iredell, for the defendant .

PEARSON, J.

In March, 1851, John Kelly, of the county of Orange, died, leaving a will, by which he appoints the defendant his executor, and in which is contained the following clause:

“Item, I give and bequeath to the Deaf and Dumb Institution, if it can be secured so that the principal will be secure, and nothing but the interest used; on these conditions, I give six thousand dollars, for the purpose of educating poor mutes, first of this county, when their parents is not able to educate them, if these conditions are complied with, I give and bequeath to the institution and their successors in office forever.”

The plaintiffs were incorporated by the act of 1848, under the name and title of “the President and Directors of the North Carolina Institute, for the education of the Deaf and Dumb;” and they allege they are the only institution for the education of the Deaf and Dumb in this State, and are well and popularly known as “ The Deaf and Dumb Institution,” and by such name were known to the testator, and by him intended to be, and were designated and described in his will. The prayer is for the payment of the $6,000.

The defendant admits, that before and since the date of the will, the plaintiffs were engaged in the education of the Deaf and Dumb, and are the only institution in this State professing to give such instruction, and having the means and present ability to do it. But he avers there are in several of the States of this Union such institutions, of which one is in the State of Virginia, and was in successful operation at the date of the will. He also admits the plaintiffs were popularly called by the title of “The Deaf and Dumb Institution,” but he avers they were also called popularly “The Deaf and Dumb Institute,” “Deaf and Dumb Asylum,” and “Deaf and Dumb School.” He submits to pay under the decree of the Court, but suggests that there may be a deficiency of assets, making an account necessary, in the event of a declaration by the Court in favor of the plaintiffs' right; but he avers he is advised the plaintiffs have no right to the legacy, and that the same is void, for want of certainty in the description of the legatee, and he feels it to be his duty to rely on that ground of defence.

On the argument, our attention was called by the defendant's counsel, to Taylor v. The American Bible Society, 7 Ire. Eq. 201; and it was urged that if that decision is not to be overruled, it decides this case. We are satisfied of that fact, but we are also entirely satisfied that the plaintiffs are entitled to the legacy. This makes it necessary to go into an examination of the cases, and to consider the reason of the thing.

There are two principles settled, and in fact admitted on all hands: 1, If there be a patent ambiguity in an instrument, the instrument must speak for itself, and evidence dehors cannot be resorted to; 2, in cases of latent ambiguity, evidence dehors is not only competent, but necessary. The difficulty grows out of the application of these two principles, so as to say when a particular case falls under the operation of the one or of the other. To remove this difficulty it is necessary to go to the fountain, and trace these two streams down, and thereby avoid confounding them; for although they run close together, there is a plain, marked line between them, which has but seldom been crossed.

The fountain of the first, in the rule as to patent ambiguity, is, that it is a question of construction. Hence the instrument must speak for itself, and in case of doubt, no evidence outside can be called in aid; for the only purpose of construction is to find out what the instrument means, and that must depend upon what the instrument says.

The fountain of the second, in the rule as to latent ambiguity, is, that it is a question of identity--a fitting of the description to the person or thing, which can only be done by evidence outside or dehors the instrument; for how can any instrument identify a person or thing? It can describe, but the identification, the fitting of the description, can only be done by evidence dehors.

Trace these two streams from their fountains: 1, a patent ambiguity is, when there is some defect in the instrument, so as to call for a construction, in order to find out what it means; e. g. an instrument, in describing the subject to be conveyed, uses language so vague that no subject is indicated, although the Court under the maxim “ ut res majis valeat quam pereat,” will try to give it a meaning, yet, if on its face it has none, the Court cannot give it one, without making a will, which it has no right to do. Kea v. Robeson, 5 Ire. Eq. 373, is an instance. The donor gave all that messuage and tenement, but did not say where it was, or give any further description: (it could only be accounted for by the fact that it was copied from a book of forms and the blanks were not filled up,) but it was not even intimated that evidence dehors could be offered to show that the messuage and tenement intended was the place where the donor lived, (although such no doubt was the fact,) because being a matter of construction, the deed must speak for itself. Again, an instrument, in describing the objects of the donor's bounty, uses words so general as to take in an indefinite number of persons, who (not being included within the operation of the Statutes for charitable uses) cannot inform the executor of the intended trust: such trust is void for uncertainty and the...