Sussex Trust Co. v. Polite

• Decision Date: 15 January 1919
• Citation: 106 A. 54,12 Del.Ch. 64
• Court: Court of Chancery of Delaware
• Parties: THE SUSSEX TRUST COMPANY, Executor of the Last Will and Testament of Joseph W. Marsh, Deceased, v. MARGARET E. POLITE AND OTHERS

106 A. 54

12 Del.Ch. 64

THE SUSSEX TRUST COMPANY, Executor of the Last Will and Testament of Joseph W. Marsh, Deceased, v. MARGARET E. POLITE AND OTHERS

Court of Chancery of Delaware, Sussex

January 15, 1919

BILL BY EXECUTOR FOR INSTRUCTIONS. Joseph W. Marsh by will dated January 19, 1916, directed his executor to sell all his property "excepting, however, the lands and chattels hereinafter more particular devised or bequeathed," made certain legacies, pecuniary and specific, and by the fifth item devised, as follows:

"Fifth I give and devise unto Margaret E. Polite, should she be living at the time of my death, all that certain tract, piece or parcel of land, situate in Sussex County, Delaware, where I now reside, lying on both sides of the county road leading from Millsboro to Lewes, adjoining lands of Joseph Moore Erasmus W. W. Marsh and others, containing forty-five acres more or less, for and during the term of her natural life and at her death the said property to go to Dr. Joseph M. Martin, his heirs and assigns forever."

The testator died March 1, 1917, and letters testamentary were granted to the executor, the complainant. Both Margaret E. Polite and Dr. Joseph M. Martin survived the testator. At the time the will was made the testator owned and resided on a tract of land described as set forth in the will, and containing about forty-five acres. Thereafter he conveyed twelve acres, part of this tract, being a lot not contiguous to the rest of it, and about the same time acquired by deed another lot containing thirty-three acres and located contiguous to the land which he had theretofore owned and devised as aforesaid. At the time of making the will he resided on the tract described therein, and at his death resided on the tract as changed as above stated.

By the bill the executor alleged that Margaret E. Polite, the life tenant under item fifth, and Joseph M. Martin, the devisee thereunder in remainder, claimed that this thirty-three acre tract was a part of the tract devised to them, and that the residuary legatees claimed it to be a part of the estate of the deceased which had not been particularly devised, and, therefore, should be sold by the executor. The executor further represented that it could not convert, or fully administer, the estate as directed until the question so raised was settled, and asked for instructions. All of the devisees and legatees were made parties defendant.

A demurrer to the bill by Margaret E. Polite for want of equity was overruled, and thereafter she answered the bill, claiming therein that the testator by the exchange of the two tracts intended that the thirty-three acre tract of land acquired after making the will became a part of the land described in the fifth item as "the place where I now reside"; that he in his lifetime declared such to be his intention; and that as further evidence of such intention he used and occupied the after-acquired tract as part of the place on which he resided at the time of making the will and at the time of his death.

At the hearing of the cause, evidence was produced to show that by declaration by the testator his purpose in acquiring the thirty-three acre tract was to make it part of the home place. It was also shown that he removed the fence separating it from the land theretofore owned by him, and cultivated and used it as part of the place or farm on which he resided until his death. This evidence was admitted after objection, and subject to be disregarded or stricken out if the court should conclude that it was inadmissible in evidence.

Joseph L. Cahall, for complainant and for some of the residuary legatees.

Robert C. White, for life tenant.

OPINION

THE CHANCELLOR

In the opinion overruling the demurrer the jurisdiction of the court was based on the need of the executor for instructions to properly perform its duty to convert the estate of the decedent as directed by the will. (Ante p. 37.)

Briefly stated the testator in this case, after making a will devising a tract of land capable of identification by the general description thereof, and which contained forty-five acres, sold part of the tract and acquired a new parcel contiguous to the tract described in the will, and actually annexed the new tract and used it as a part of the tract theretofore owned, whereby at his death the acreage was increased beyond forty-five acres.

The first question is as to the admissibility of the testimony (1) of declarations of the testator as to his reasons for making the changes, and (2) as to the use made of the after-acquired land. In this case there is no ambiguity patent or latent, in the will, for it is entirely clear what land was mentioned in the will, and there was no error in the description thereof according to his ownership when the will was made. If he had made no changes in ownership after making the will there would have been no need for evidence aliunde. But having made the changes, was the evidence above referred to admissible?

Declarations whenever made by a testator as to his intentions in using certain words in the will, or as to a proper construction to be made of them, are inadmissible in evidence. And the reason is clear and substantial, and it was thus stated by the Court in Hearn v. Ross, 4 Del. 46, 4 Harr. 46:

"Parol evidence is inadmissible to add to, take from, vary, or explain a written instrument like this. A last will and testament must by our statute of wills, be in writing, and executed with certain formalities. If a paper so executed could be varied by parol, it would repeal the statute."

But evidence is always admissible as to the state of the testator's property, and his purpose in acquiring it, as distinct from evidence of his declarations as to the meaning of the words of his will.

In Sanford v. Raikes, 1 Meriv. 646, Sir William Grant said:

"I had always understood that where the subject-matter of a devise was described by reference to some extrinsic fact, it was not merely competent but necessary to admit extrinsic evidence to ascertain the fact, and through that medium to ascertain the subject of the devise. * * * Here the question is not upon the devise, but upon the subject of it. Nothing is offered in explanation of the will, or in addition to it. The evidence is only to ascertain what is included in the description which the testator has given of the thing devised."

Such purpose may be shown by declarations or acts, and in this case we have both, and evidence of both is admissible for the same purpose. Clearly this would be so if the changes in his holdings of land had been made before the will was made. The intention of the testator must be drawn from the language of the will viewed in the light which the situation and circumstances connected with the property may shed upon it. This was what the Court of Errors and Appeals did in Carson v. Hickman, 9 Del. 328, 4 Houst. 328, when they looked outside the will, viz. to the plots and pretensions of the parties in an ejectment suit, and in the light shed on them by these matters aliunde interpreted the words of the will. The same was done by the Superior Court in the ejectment suit of Knight v. Knight, 28 Del. 570, 5 Boyce 570, 96 A. 32 (1915). There testimony was admitted and considered to show that at the time of, and for many years before, making the will the testator had used two adjoining tracts of land as one tract. This was to aid the court in determining from the will what the intention of the testator was at the time of making his will, there being an inconsistency between the general description given of the farm in the will and the recital in the will of the source of the testator's title thereto. The evidence above referred to was, therefore, admissible not to vary the will, but to show the purpose in making changes in the subject-matter devised, in order to ascertain from the will in the light of such evidence the testamentary intention.

The next consideration is as to the effect of such evidence. It was urged that the Delaware statute as to after-acquired property applied here. There does not seem to be any judicial construction of this statute by our own courts. At common law a will speaks as to real estate from its date, and could not pass property acquired after the...