Thomson v. Thomson

• Decision Date: 25 March 1893
• Citation: 115 Mo. 56,21 S.W. 1128
• Parties: THOMSON et al. v. THOMSON.
• Court: Missouri Supreme Court

21 S.W. 1128

115 Mo. 56

THOMSON et al. v. THOMSON.

Supreme Court of Missouri.

March 25, 1893.

For majority opinion, see 21 S. W. Rep. 1085.

GANTT, J., (dissenting.)

The plat on page 1085, vol. 21, S. W. Rep., was offered and read in evidence. The trial court having excluded the paper writing or unattested will of 1860, which was offered to show the intention of the testator as to the boundaries of the land described in his will "as the tract on which I now reside," found for plaintiffs. This action of the court constitutes the principal ground of this appeal, and requires us to determine whether the unattested draft of a will of the testator, signed by him, was competent to aid the court in arriving at his intention. In the construction of a will the intention of the testator must be gathered from the will itself and all its parts, and that intention must govern. Bradley v. Bradley, 24 Mo. 311. It is most clearly settled that, when the language employed in the will is clear and of well-defined meaning, extrinsic evidence of what was intended in fact cannot be adduced to qualify, explain, enlarge, or contradict the language thus used, but the will must stand as it is written. Sir James Fitzjames Stephens, in his excellent Digest of the Law of Evidence, (article 91, p. 168,) says: "Putting a construction upon a document means ascertaining the meaning of the signs or words upon it, and their relation to facts. In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers, or may probably have been intended to refer, or which identifies any person or thing mentioned in it." In thus proving these facts the rule forbidding the introduction of parol evidence to vary or contradict a written instrument is not infringed. If, after a careful comparison of all parts of an instrument, the court is in doubt as to the intention of the grantor upon some particular point in the will, it will admit extrinsic evidence of the circumstances and surroundings of the testator at the time he made the will; in other words, as nearly as possible, it will put itself in the testator's place. In this case the intention of Robert Y. Thomson to devise "the tract of land on which he then resided" to his wife for life, remainder in fee to the defendant, Zachary, is perfectly clear. There is no uncertainty of person as to his devisees. Had he merely used the words "the tract on which I now reside," the only inquiry necessary would have been the extent and boundaries of that tract, and there could be no doubt as to the propriety of the court admitting evidence to prove the boundaries of that tract. But the testator did not stop with this general description. He defined this home place by certain metes and bounds, and appellant claims he made a mistake in so doing; that, by omitting one call for a quarter of a mile west from the N. E. corner of the S. E. ¼ of the N. E. ¼ of said section 1, he unintentionally cut off this 40 acres from the home place. The trial court admitted evidence on both sides as to the extent of the home place, and there was evidence that not only this 40 had been used and cultivated by the testator in his lifetime, but the 80 acres immediately west of it also, which he had devised to his son Alvin. The trial judge excluded the unattested paper or will offered by appellant to show the intention of Robert Thomson as to the boundaries of "the tract on which he resided," and this ruling is assigned as error. In Bradley v. Bradley, 24 Mo. 311, Judge Ryland quotes with approval the language of Chief Justice Thompson in Mann v. Mann, 14 Johns. 1: "It is conceived that there is in principle an objection to the reception of the declarations of intention. When a person executes a written instrument, whether a will or deed or written agreement, he must be supposed to express and embody in the instrument all he has to say of his intention. Thenceforward his intention is to be collected only from the instrument; reference also being allowed, when necessary, to surrounding material facts and existing circumstances. * * * And the ground and reason on which the principle is founded must obviously be on account of the great danger and inconvenience which would result from evidence of declarations, well described by Lord Coke as the `nude averments of parties, to be proved by the uncertain testimony of slippery memory.' If declarations are alleged to have been made before or after that time, what complete assurance have we in all cases that the intention of the party, at the time of executing the instrument, was the same as before that time, or...