Schlottman v. Hoffman

• Decision Date: 02 December 1895
• Citation: 18 So. 893,73 Miss. 188
• Court: Mississippi Supreme Court
• Parties: JOHN SCHLOTTMAN, EXR., ET AL. v. JERRY HOFFMAN ET AL

18 So. 893

73 Miss. 188

JOHN SCHLOTTMAN, EXR., ET AL. v. JERRY HOFFMAN ET AL

Supreme Court of Mississippi

December 2, 1895

FROM the chancery court of Warren county, HON. CLAUDE PINTARD Chancellor.

The opinion states the case.

Decree reversed and cause remanded.

Frederick Speed, for the appellant.

It is said that the meaning of the deceased cannot be shown by parol, and that we are bound to accept the construction which the appellees put upon the characters rather than that which the executor puts upon them. It is undoubtedly true that parol evidence cannot be admitted to destroy the will by substituting something else for what the testator has written therein, and so to make a new will, but when there arises something dehors the will, as to the person or subject meant to be described, which the law knows as a latent ambiguity it is always competent to show by parol evidence what that something is. Love v. Buchanan, 40 Miss. 758-760; Gilliam v. Brown, 43 Ib., 642, 652. That something in this case is the fact that the person who filled up the blank in the codicil employed characters, which, standing by themselves, mean either one of two things--five or five hundred.

While it is true that no judge is at liberty to pronounce anything ambiguous or uncertain, until he has brought to his aid all the lights afforded by the collateral facts and circumstances, which, as we have shown, may be proved by parol (1 Greenleaf on Ev., 298), it is undoubtedly his duty to avail himself of their aid.

A latent ambiguity is something that is "not visible or apparent, not seen, hid, concealed" (Webster); one which arises from some collateral circumstance or extrinsic matter in cases where the instrument itself is sufficiently certain and intelligible" (Bouvier). "These," says Mr Greenleaf, "are subjects for the consideration of the jury, and may be explained by parol evidence." 1 Greenl., § 301. And this author illustrates the doctrine by saying that "when there are two persons to whom the entire description applies, this description, though accurate, would be ambiguous." Ib., § 299, 301. Now, in the case at bar, there are characters which may mean either five or five hundred, according to the location of the absent decimal point, which must be inserted to make either intelligible. The court is called on to add that which is missing, and shall it be said that it must do so blindly when it can call to its assistance a number of persons whose testimony will show where it should be placed to give effect to the intention of the testatrix. Jenkins v. Bodley, 1 Smed. & M. Chy., 344. The same rule applied to land should also be applied to dollars where mentioned in an instrument. Is there any reason why the mistake of a scrivener who draws a deed to land and by mistake inserts a wrong description, should be corrected by parol evidence, and that of an ignorant witness who fails in an attempt to follow the directions of a testator, and, through his ignorance inserts a meaningless description of the number of dollars, or writes a description which is contrary to the intention of the testator, should not be corrected by the same means?

The rule is not now, and never has been, as stated by the learned counsel for appellees, or as it was applied by the chancellor. The maxim is that "a latent ambiguity may be supplied by evidence, for an ambiguity that arises out of a fact may be removed by proof of the fact." Broom's Legal Maxims, 23. It is not necessary that the ambiguity should be shown upon the face of the instrument, but the question is whether the evidence shows such a state of facts as to create a latent ambiguity. Gildart's Administrator v. Howell, 1 How., 205, note; Foute v. Fairman, 48 Miss. 550; 1 Greenl., 397; Elliott v. Connell, 5 Smed. & M., 107; Bowers v. Andrews, 52 Miss. 596, 606; Dayton on Surrogates, 383, 385; Gilliam v. Chancellor & Murray, 43 Miss. 453; Chilton's Probate Court Law, 118; Wilson v. Horn, 37 Miss. 478; Heirn v. McCaughan, 32 Miss. 45; 2 Smith's Leading Cases (Am. ed.), 514, 563; McComb v. Gilkey, 29 Miss. 146, 190; Clark v. Perry & Fox, 4 How., 285; Buckells v. Cunningham, 6 Smed. & M., 358; Williams v. Claiborne, 9 Smed. & M., 489; Marsh & Pendleton v. Lisle, 34 Miss. 173; Eckford v. Hogan, 44 Miss. 398; Luckett v. Henderson, 12 Smed. & M., 334; Hunt v. Chambliss, 7 Smed. & M., 532; Blake v. Morrison, 33 Miss. 123; Anding v. Davis, 38 Miss. 574; Peques v. Mosby, 7 Smed. & M., 340; Lauderdale v. Hallock, Ib., 622; Ross v. Wilson, Ib., 753; Willis & Conley v. Ives, 1 Smed. & M., 307; Whitworth v. Harris, 40 Miss. 483; McGuire v. Stevens, 42 Miss. 725; Wren v. Hoffman, 41 Miss. 616.

It follows from an examination of these authorities that the court must receive parol evidence to ascertain whether an ambiguity exists, and the question simply is whether there are facts dehors the will which explain, not destroy it. If such facts exist at all, they are to be given due weight, and if it is found that they supplement the will, and make clear what was in doubt before, the court must be governed by them. In the case before us, these facts supply that which is indispensable to make it intelligible by showing that the intention of the testator was to place the decimal point after the figure "five," so as to make it read five and not five hundred dollars; and it would have been absurd for her to have defeated the object she had in making a will at all, which was to provide for the support of her unmarried daughter, who had supported and cared for her during her old age, and in her last illness, which was of long duration, by giving a sum which it was impossible for her executor to pay to her sons without defeating the provision she had made for her daughter. If parol evidence is admissible to show her "surroundings and intention to reach her meaning and purpose," then it is incontrovertible that she did not intend to strip her daughter of the provision she had made for her, and to give it to two of her three sons; and this view is emphasized by the fact that the son omitted is an imbecile, and a life burden upon the daughter, and the two who it is claimed she made this extraordinary provision for are shown by the evidence to have been unworthy of her bounty.

2. The chancellor erred in suppressing the parol evidence offered by appellants touching the real intention of the testatrix. The answer and cross bill set forth a state of facts which clearly entitled the appellants to have the codicil reformed and corrected as prayed. It is set forth that the testatrix, Martha Hoffman, an aged person, who could neither read nor write, directed one of the witnesses to her will and codicil to fill up a blank in the codicil with the words "five dollars," and that he (Speiller) wrote what he thought was "five dollars," and so read it to her when he wrote her name there. It was also charged that if anything else was therein written, it was a mistake which defendants were entitled to have corrected by a reformation of the codicil, so as to make it correspond with testatrix's intentions. On authority, the appellants were clearly entitled to this relief. 2 Story's Eq. Juris., p. 998; 1 Ib., §§ 164-167, 179; Nutt v. Nutt, 1 Freeman's Chy., 130; Dayton on Surrogates, 168, 169; Smith's Manual of Equity, 52; Peques v. Mosby, 7 Smed. & M., 346; Lauderdale v. Hallock, Ib., 629; Harringtan v. Harrington, 2 How., 718; Simmons v. North, 3 Smed. & M., 71; Mosby v. Hall, 23 Miss. 82; Kilpatrick v. Kilpatrick, Ib., 128; Gray v. Boden, 24 Miss. 667, 668; Marquis of Townsend v. Stangrood, 6 Vesey, 332, 333; Elliott v. Connell, 5 Smed. & M., 107; Kerr v. Kuykendall, 44 Miss. 145; Dunbar v. Newman, 46 Miss. 235; Willis v. Gattman, 53 Miss. 731; Cummings v. Steele, 54 Miss. 649.

3. It was also error for the court below to order a sale of the fee in the real estate to satisfy the pecuniary legacies. The real estate is not chargeable with pecuniary legacies unless the intention of the testator so to charge it has been expressly declared, or may be fairly deduced from the language of the will. Knotts v. Bailey, 54 Miss. 238. This cannot be said of the present controversy.

Wade R. Young, for the appellees.

1. The question of the competency of parol evidence to contradict or vary the terms of a will has been so often decided in a manner favorable to the contention of the appellees that it is like threshing old straw to cite authorities.

In Schouler on Wills, § 568, we find the rule thus stated: "Where the language employed in the will is clear and of well-defined force and meaning, extrinsic evidence of what was intended in fact cannot be adduced to qualify, explain, enlarge or contradict this language, but the will must stand as it was written. Nor are plain words to be read differently or changed upon any plea, however capable of proof aliunde, that the testator meant different words, especially, if the effect would be to alter the disposition from that expressed in the instrument--as, for example, where it is claimed that a legacy of $ 500 was wrongly written for $ 5,000; while, on the other hand, a clerical error, apparent from the context, might be corrected in construction without the need of external proof at all." To the same effect are the following: Currie & Naylor v. Murphy, 35 Miss. 487; Love v. Buchanan, 40 Miss. 758; Mann v. Executors of Mann, 1 Johns. Ch., 233; Magee v. McNeil, 41 Miss. 17; Gilliam v. Brown, 43 Miss. 641; Ehrman v. Hoskins, 67 Miss. 194.

As there is no question in this case, either of latent ambiguity arising dehors the will, as to the person or subject meant to be described, or of a resulting trust, the motion to suppress the testimony offered by appellants was properly sustained. If there was any ambiguity at all, it was a...