Taylor v. Horst

• Decision Date: 08 December 1900
• Citation: 23 Wash. 446,63 P. 231
• Court: Washington Supreme Court
• Parties: TAYLOR v. HORST et al.

63 P. 231

23 Wash. 446

TAYLOR v. HORST et al.

Supreme Court of Washington

December 8, 1900

Appeal from superior court, Thurston county; O. V. Linn, Judge.

Action by Sarah Taylor against Nellie Horst and others. Judgment for defendants. Plaintiff appeals. Affirmed.

W. I Agnew, for appellant.

J. W. Robinson, Troy & Falknor, and A. E. Rice for respondents.

DUNBAR, C.J.

This appeal involves the construction of a will, and is from the order of the court refusing to allow the admission of testimony offered to assist the court in construing the will and from the order dismissing the suit for want of jurisdiction. The decedent, Ignatius Colvin, conveyed, by his last will and testament, to the appellant, Sarah Taylor, a life interest in a certain tract of land. Colvin, it is alleged, was an ignorant man, unable to read and write. The scrivener (J. R. Mitchell) who drew the will was ready to testify that Colvin employed him to draw the will, and that he directed Mitchell to convey to the appellant what was known as the 'Taylor Ranch.' One half of this ranch which is known as the 'Mize Donation Claim,' is in township 16, and the other half in township 15. According to the testimony offered, Mitchell prepared the description from an old plat of Colvin's, which showed simply township 16; and in accordance with that plat the will was drawn, conveying to the appellant a life interest in that portion of the claim north of the township line, or that portion which is in township 16. It is claimed that the description intended to be in the will contained the part south of the township line, or that part which is in township 15, and that will was executed on the supposition that that portion of the ranch which is included in township 15 was included. The respondents objected to this testimony on the ground that it was the introduction of parol testimony to vary or dispute the terms of a written instrument, and the objection to its admission was sustained by the court, which is alleged as error here. We think the objection was correctly sustained. Frimarily, the rule of law is that parol testimony cannot be introduced for the purpose of changing the provisions of a will. But another doctrine is equally well authentricated, viz. that extrinsic evidence may be introduced in order to explain the intent of a writing, and the true meaning of the same, when there is any patent or latent ambiguity in the writing. Of course, the policy of the law is to reach the intention of the writer as expressed in the writing, and the expressions may be explained when they are indefinite and inaccurate. But this must always be done in consonance with the settled rules of evidence. It is claimed by the appellant that she is brought within the rule allowing one to introduce extrinsic evidence to arrive at the intention of the testator and to correct the inaccuracy of the description, from the fact that the will clearly shows that the testator intended to dispose of all the property he had and should die possessed of; and it is urged that the policy of the law is strongly against partial intestacy. It is doubtless true that under the authorities it is a favored presumption that the testator intended to make disposition of the entire estate, in the will executed, but it is not conclusive; for it may well happen that a person will desire to make definite disposition of a portion of his estate, and be willing to leave the disposition of the remainder to the direction of the law.

It is also insisted by the appellant that if, as a matter of fact the testator dies possessed of lands which have not been conveyed by the will, such fact raises a latent ambiguity, which warrants the introduction of extrinsic testimony to explain. If this were true, it would terminate this case in favor of the appellant; for it is conceded that Colvin was the owner of that portion of the Taylor ranch which was situated in township 15, and that such land was not devised. But an examination of the cases cited by appellant convinces us that the proposition is not sustained. Patch v. White, 117 U.S. 210, 6 S.Ct. 617, 710, 29 L.Ed. 860, holds that a latent ambiguity in a will, which may be removed by extrinsic evidence, may arise (1) 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 (2) 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...