58 Ky. (1 Met.) 264 (1858)
Case
47—PETITION EQUITY—October 1.
Allan and Wife v. Vanmeter's
Devisees.
APPEAL
FROM CLARKE CIRCUIT COURT.
1. See in this case the particular terms employed to
express the devises in a will to infants, and the general provisions thereof,
by which the court say each infant devisee took a vested interest in the estate
devised, and which passed to the father, as heir-at-law, upon the death of the
infant; and refer to 6 Dana, 162; 7 B. Mon., 628; 12 Ib., 632.
2. Where
a devise is made in words apparently creative of a future estate, and that even
import a contingency, such words, if a prior interest has been carved out, will
be construed as referring to the futurity of possession occasioned by the
carving out of such prior interest, and as pointing out the determination of
that interest, and not as designed to protract the vesting. (12 B. Mon., 632; 7
Ib., 628.) Where a testator directs that the balance of his land shall be put
in grass and rented out for the benefit of his estate, and the accumulations of
this and all other sources to be equally divided among all the devisees, this
is in express terms the carving out of such prior interest.
3. A
testator first devises specifically a portion of his lands, and then "the
whole balance of my (his) lands" is given to his sons. He then disposes of
some of his slaves, the balance and their hires to go to his sons. And finally
he directs a sale of the whole balance of his estate, the proceeds to be
divided among his sons. Held--That whatever interest the testator had, as
heir-at-law of his children, who died in infancy, in estate which had been
devised to them by their grandfather, passed by these clauses, although the
testator at the time did not know that he owned any such interest. (13 B. Mon.,
273; Ib., 292; 17 Ib., 66, and authorities there cited.)
4. It
has been long established that a reversion in fee, however remote, and though
clearly not in the contemplation of the testator, passes by general words in a
will, even though there are other lands to satisfy the words of the devise. (1
Jarman, 599, note 1, and authorities cited.)
5. It
is well settled that evidence of extrinsic facts is admissible in aid of the
exposition of wills; but this evidence must be such as explains what the testator
has written, and not what he intended to have written; not in explanation of
what the testator intended, as contradis-tinguished from what his words
express, but as to what is the meaning of the words he used. (5 B. & Adol.,
129; 13 B. Mon., 292; 1, 2, and 5 "propositions of Wigram."
6. Where
the facts attending a devise are such as to exclude the primary meaning of the
words, or where the object of the testator's bounty or the subject of
disposition is described in terms applicable indifferently to more than one
person or thing, parol evidence of extrinsic facts is admissible to determine
whether the intention of the testator is certain in any other sense of which
the words are capable, in reference _|265
to the facts; or to identify the person
or thing referred to in the will. (1 Ves. & B., 422.) But where the words
used in reference to the subject of the gift comprehend several objects, parol
evidence is not admissible to exclude from the description one or more of them
on the ground that it was not intended to include them; this intention must be
sought for in the words of the will. (17 B. Mon., 66.) Nor is such evidence
admissible for the purpose of ascertaining and giving effect to a secret
intention inconsistent with the words themselves, or restrictive of their
natural and legal meaning.
The
facts appear in the opinion of the court.
Johnson, Marshall and
Allan, for appellants—
Argued:
that the grand-children of Isaac Cunningham, under his will, took vested
interests in his estate, and that the shares of the devisees who died before
they were twenty-one years of age, descended to their father, Isaac Vanmeter.
The residuary clauses contained in the will of Vanmeter do not embrace those
interests, which passed by descent to his heirs-at-law.
Authorities
cited: Grigsby, &c. v. Breckinridge, &c., 12 B. Mon., 629; Danforth v.
Talbott's adm'r, 7 B. Mon., 623; 1 Jarman, 614, 624; Fearne on Remainders, 224
to 226; 1 Atkyns, 501; 26th chap., 1 Jarman on Wills; Wheeler v. Dunlap, 13 B.
Mon., 191; 6 Cruise's Digest, 120-1; 15 Pick., 400; 1 Greenleaf's Evidence,
note p. 363; 1 Jarman on Wills, 361, 541, 539, and 633; 6 Cruise's Digest, 205,
207, 208, 202, 217; Vessey v. Wilkinson, 2 Term R., 197; Benning v. Benning, 14
B. Mon., 585; Noland v. Johnson, 5 J. J. Mar., 351; Darnall v. Adams, 13 B.
Mon., 273; Mitchell v. Walker, 17 B. Mon., 61; 1 Greenleaf's Ev., note on page
355; Wigram on Wills.
Kinkead and Hunt, for adult devisees—
1. The adult devisees claim that the several
devises by their grandfather created vested estates, which passed by descent to
their father on the death of the several devisees. 2. They contend that
these estates are clearly embraced in the residuary clauses of his will, and
that consequently the appellants have no interest in them.
Upon the latter question the following authorities
cited: Hart v. Knott, Cowper, 43; Morton v. Fossick, 1 Barn. & Adol., 186;
1 Jarman on Wills, side page, 599; Glover v. Spendlove, 4 Bro. C. C.,
338--Eden's note (a) and cases cited; Steel v. Cook, 1 Metcalf, 281.
_|266
Parol evidence not admissible to show
that the testator did not know that he owned these interests. (Jarman on Wills,
363, n.; Greenleaf Ev., 287, n.; 2 Parson's on Contracts, 73, n.; Observations
of Parke, B., in Gord v. Needs, 2 M. & W., 129; Wigram on Wills, sections
20, 23, 24, et seq., sections 102, 103, 128; Cartwright v. Vawdry, 5
Ves., 530; Boys v. Williams, 3 Sim., 573; Clemenston v. Gandy, 1 Keen, 309;
Bailey J., in Jersey v. Smith, 2 Brod. & Bing., 553; Wheeler's heirs v.
Dunlap, 13 B. Mon., 291; Mitchell v. Walker, 17 B. Mon., 61.)
If
Vanmeter did not know of his interests in the Cunningham estate, that ignorance
will not prevent them from passing under the residuary clauses of his will. (1
Jarman on Wills, 293, n.; Ib., 589, side page 599 and n.; Rev. Stat., 695;
Glover v. Spendlove, 4 Bro. Ch. C., 338--Eden's note (a) and cases cited; Steel
v. Cook, 1 Metcalf, 281; Darnall v. Adams, 13 B. Mon., 273; Lex. Ins. Co. v.
Page & Richardson, 17 B. Mon., 443.)
As
to rules of construction: Stokes v. Salomon, 4 L. & E. R., 136; Code v.
Wade, 16 !Ves., 46; 18 Ves., 368; 1 Jarman on Wills, 424, side page; 19 Ves.,
653; Williams on Ex., side page, 933, citing 1 Ves., Jr., 269, 8 Ves., 42 and
notes; 4 Ves., 329.
G. Robertson, for infant devisees.
JUDGE DUVALL DELIVERED
THE OPINION OF THE COURT:
By
the will of Isaac Cunningham, dated the 28th July, 1842, and admitted to record
in November of the same year, the testator devised to his wife, during her
life, four hundred acres of land, and numerous slaves.
To his two grand-sons,
Solomon and Isaac C. Vanmeter, he devised "the four hundred and five
acres of land I own in Fayette county, originally bought of Pain and Taylor. I
have also given them four negro boys, Anderson to Solomon, and Anthony to Isaac
C. Vanmeter; the small boys, Josh and Caesar, I leave them
to divide between themselves. I have also given them some horses, cows, and
hogs."
“Thirdly.
I give to my grand-son, Jacob Vanmeter, when he arrives at the age of twenty-one, two
hundred cres of land, to be bought by my executors, equal in value to each of
the lands I have given to Solomon and Isaac C. Vanmeter;
and it is my _|267
will that he shall have two negro boys of
equal value to those I have given each of them; and that he shall have horses, cattle,
&c., equal to the stock each of them got; if not stock, its value in
money.
“Fourthly. It is my will that the balance of my lands
be all put in grass, and rented out for the benefit of the estate; and as the
others of my grand- children become of the age of twenty-one years, each one
shall draw from the estate two hundred acres of my land, and the boys each to
draw two negroes of the male part of my servants, equal in value to those I
have given the other boys. The girls, each, shall have one woman and a girl, of
as near equal value as they can be made. It is my will that my executors lay
off four hundred acres of my land, adjoining Isaac Vanmeter's land, extending
the full length of my farm on the west side, not to run south further than the
land I bought of the Crocketts; this I give to the two youngest of my
grand-children when they become twenty-one years of age, to be divided between
them equally, each one to have the benefit of the spring and creek for water.
“Fifthly.
It is my will that each one of the younger children, as they become of age,
draw from the estate horses, cattle, &c., of equal value to what I have
given the boys of age; if not the stock, its value in money.”
By
the succeeding clauses, the testator appoints his three grand-sons, Solomon,
Isaac C., and Jacob Vanmeter, his executors; directs a sale of all the balance
of his estate, and a division of “the dower negroes” among his grand-children;
and he provides finally, that “if the estate produces at any time a fund
sufficient to purchase two hundred acres of land, it is my wish that those
funds should be vested in land for the estate. At the time the youngest child
arrives at the age of twenty-one years, all the servants and all the other
proceeds of my estate, after fully compensating my three executors for all
their trouble, I wish to be equally divided among all my grand-children.”
It appears that Mrs. Vanmeter, the wife of Isaac
Vanmeter, was the daughter and only child of the testator, and that her
children, twelve in number, are the grand-children mentioned _|268 in the will as devisees. Four of these
grand-children died in the lifetime of their father--one of whom, Jacob Vanmeter,
being of full age, disposed of a portion of his estate by will. The other three
were infants, and died intestate and without issue.
Afterwards,
in September, 1854, Isaac Vanmeter died, leaving a will, the several provisions of
which will be fully noticed hereafter.
This
action was brought by the appellants, (Mrs. Allan
being the daughter of Vanmeter), who claim that her deceased brothers and
sisters, under the will of their grandfather, Cunningham, took vested interests
in his estate; that those interests, except that of Jacob, passed by descent to
their father, Isaac Vanmeter; that the various residuary clauses contained in
the will of the latter do not embrace those interests, but that they passed by
descent to his heirs-at-law, and that under the provisions of the Revised
Statutes (p. 282) she is entitled to be made “proportionately equal” with her
co-heirs and distributees in the distribution of this undevised estate.
The
appellees, in their answer, concur in claiming that by the will of their
grandfather, the deceased devisees took vested interests, which passed by
descent to their father; but they insist that those interests are embraced by
the residuary clauses of his will, and that the appellants are therefore
entitled to no part of them.
The
court below was of opinion that the testator, Cunningham, did not intend that
his minor grand-children should take any present interest in any part of his
estate; that the devises to them were contingent, and were to take effect only
in the event that they should live to the age of twenty-one years; and it was
therefore decided that, upon the death of the three infant devisees, their
several interests did not vest in their father, Vanmeter, but fell into the
residuum of Cunningham's estate.
To
reverse that judgment this appeal is prosecuted; the appellees uniting with the
appellants in insisting that the construction of the will of Cunningham, on
which the judgment was founded, is erroneous.
_|269
We proceed at once to dispose of the
question thus presented.
In
the interpretation of this will, the intention of the testator is, of course,
the governing consideration, and that intention is to be ascertained by a
reference to the general provisions of the instrument, as well as to the
particular terms employed to express each separate devise or bequest--subject
to the operation of those well settled principles and rules of construction
which the courts have long recognized as applicable to similar cases.
It
is perfectly clear that the testator intended to leave no portion of his large
estate undisposed of by his will, and that it should be enjoyed by the twelve
children of his only daughter upon terms of perfect equality. Two of those
children, Solomon and Isaac, were adults at the date of the will, and for that
reason he devised to them, absolutely and specifically, the four hundred and
five acres of land in Fayette, and the slaves and personalty mentioned in the
second clause of the will. The other devisees were all minors, and were, no
doubt, considered by the testator incapable of managing profitably and
prudently the estate given them, and for that reason he thought it best to
postpone their right to the possession and control of it until each should have
attained the prescribed age. No other conceivable motive could have existed for
the distinction made in the devises of the two classes of devisees. They were equally
the objects of his affection, and must be presumed, from all that appears in
the will, to have been equally the objects of his intended bounty. A
construction, then, which would result in a discrimination so unfavorable to
the infant devisees, should not be adopted, unless rendered necessary by some
more explicit indication of the testator's intention than the words of the will
afford. He must be supposed to have been, and doubtless was, aware of the
difference between a vested estate and one which was contingent, as it respects
the legal consequences and incidents attaching to each.
The
arrival of the infant devisees at the age of twenty-one was certainly a future
uncertain event, and the expressions which refer to that event may be literally
construed as import-_|270
ing a contingency; but the question is,
whether the event was so regarded by the testator, and whether those
expressions must therefore be interpreted to postpone the vesting of the
estates until the happening of the contingency? It will be seen that there is
no devise over, in case either of his grand-children should die before
attaining the age of twenty-one. In the devises to them he does not use the
words “if,” or “upon the condition,” or “in the event of,” &c. But he says,
“I give to my grand-son Jacob, when he arrives at the age of twenty-one,”
&c. So, in the fourth clause, all
the balance of his land is to be rented out, and “as the others of my
grand-children become of the age of twenty-one years, each one shall draw from
my estate two hundred acres;” and in the same clause, the executors are
directed to lay off four hundred acres, being two shares. “This,” he says, “I
give to the two youngest of my grand-children when they become twenty-one years
of age,” &c. Again, in the fifth clause: “It is my will that each one of
the younger children, as they become of age, shall draw from the estate horses,
cattle &c., of equal value to what I have given the boys of age;” and in
the seventh clause, a final division of all his remaining estate, and of all
the proceeds and profits, is directed to be made “among all my grand-children.”
But
without particularizing further, it is evident, from the whole face of the
will, that the death of either of the devisees, before attaining the age of
twenty-one, did not enter into the contemplation of the testator, and that he
therefore made no provision for such event.
The
decisive influence to which these circumstances are entitled, upon the question
whether the vesting of the statute, or the mere possession and enjoyment, was
intended to be postponed to a future period, has been determined by this court
in numerous cases. In Briscoe's devisees v. Wickliffe (6 Dana, 162) it is said,
in reference to a devise to A, if or when he attains a certain age, that the law,
in ascertaining the intention of the testator, may regard him as only looking
to the point of time when the event referred to must certainly happen, if at
all, and not to the happening of the event, and that the devise might be
construed as referring to a certain time which must come, _|271 and being thus uncontingent, be effectual to
convey an immediate vested interest. The same distinction is recognized in the
subsequent cases of Danforth v. Talbot's adm'r., (7 B. Mon., 628), and Grisby
v. Breckinridge, &c., (12 B. Mon., 632.) In the former it is said that as
the testator seemed “not to have doubted but that his son would live until that
period, and has made no provision for a different event, we should more
probably violate his intention, and his own understanding of the language used,
by regarding it as a contingency, than by considering it, as he probably did,
as fixed and certain.” In both those cases, under devises substantially the
same as those contained in the will of Cunningham, it was held that the
devisees took vested, and not contingent estates. And inasmuch as those cases
present a statement and review of the authorities, ancient and modern, which
establish this principle of construction, a citation of them is deemed
unnecessary here.
One
of the grounds upon which the conclusion of the circuit judge seems to have
been founded is, that no prior interest in the estate devised to the infant
grand-children was vested or created by the will. It seems to us that this view
is the result of a misapprehension of the effect which must be given to the
fourth clause before quoted, in which the testator directs that the balance of
his land shall be put in grass, and rented out for the benefit of the estate.
By a subsequent clause, the accumulations from this and all other sources are
to be equally divided among all the devisees. A prior interest is thus, in
express terms, carved out for the benefit of the ulterior devisees, and
extending over the whole period for which the possession and enjoyment are postponed.
It is therefore, in effect, a devise of the whole estate, instanter, to
the devisees, with the exception of the partial interest carved out for their
benefit. (Jarman on Wills, 629.) And in Grisby v. Breckinridge, supra,
it is said “that where a devise is made in words that are apparently creative
of a future estate, and that even import a contingency, such words, if a prior
interest has been carved out of the estate, will be construed as referring
merely to the futurity of possession occasioned by the carving out of a prior
interest, and as pointing out the determination of that interest, and not as
designed to protract the vesting.”
_|272
So in the case of Danforth v. Talbot's adm'r, supra,
the intermediate profits were devised to the wife, the daughter, and the
principal devisee himself; and this is referred to as a "decisive
circumstance," bearing upon the question we have been considering.
Upon
this branch of the case our conclusion, therefore, is, that each of the three
deceased grand-children took vested interests in the estate of Cunningham by
the devises contained in his will, and that, as a legal consequence, those
interests, upon the death of the several devisees, passed by descent to their
father, Isaac Vanmeter, as heir-at-law.
2. It becomes necessary, therefore,
to determine, in the next place, whether the estates thus acquired by Vanmeter
were disposed of by his will, or whether he died intestate as to them.
As
already stated, Vanmeter died in September, 1854, leaving a will dated
in August of the same year, the provisions of which, so far as they relate to
the present question, are substantially these: He gives to his wife, for life,
the tract of land containing the dwelling-house and all the improvements, to be
laid off to her by a minutely defined boundary; also numerous slaves and
personalty. He devises specifically to each of his children one hundred and
fifty acres of land, in fee-simple, to be laid off to each out of designated
parcels, except as to the 150 acres given to his son Thomas; that is to be paid
off at the discretion of his executors. He then directs as follows: “The whole
balance of my land, not herein already devised, I wish to be managed by my
executors for the benefit of my estate, until my youngest child arrives at age,
at which time my son, Isaac Vanmeter, is to have twenty acres of it more than
either of my other sons, and the whole balance is then to be equally divided
among all my sons; the twenty acres I give to Isaac to make up the value of the
one hundred and fifty acres devised to him equal to that devised to the other
children, as I consider his 150 acres to be of less value than that which the
others get. In dividing said balance, the children are to have, as far as
practicable, their interest therein laid off to them adjoining to that herein
devised to them.” He next bequeaths _|273
to each of his sons, as they become of
age, the same number of slaves that he had already given his elder sons, and
adds: “After the youngest child gets his part, the balance, with the hires that
may arise in the meantime, is to be equally divided among all my sons.” And
finally, after giving certain cattle to all his children, and a particular cow
and calf to his daughter, he says: “The whole balance of my estate is to be
sold by my executors and divided among all my sons, after my debts are paid and
the legacy to my wife.”
The
estate which Vanmeter acquired by descent from his three children, and which
forms the subject of this controversy, consisted of over six hundred acres of
land, besides numerous slaves and personalty. He had obtained the actual
possession of none of this estate in his lifetime.
On
the part of the appellants it is insisted, first, that it is apparent, upon the
face of the will itself, that this estate is not embraced by any of its
provisions; and, secondly, that it is shown by the proof tendered by them that
the testator was ignorant of his right or title to the interests which his
deceased children had acquired under the will of Cunningham, and that therefore
those interests were not intended, and should not be held, to pass under his
will. In the investigation
of this case we have not encountered the difficulties arising from the
awkwardness and want of skill on the part of the draftsman, which so frequently
attend the construction of wills. The language of this will is clear, explicit,
and unambiguous, and the various dispositions are expressed with the utmost
precision. We refer to this in the outset, as a circumstance of some
significance in its bearing upon the question before us.
That
the testator intended to dispose, by will, of the whole of his property, of
every description, can not be doubted. He first devises specifically a portion
of his lands, and then “the whole balance of my (his) land” is given to his
sons. Next he disposes of some of his slaves, the balance, and their heirs, to
go to his sons. And finally, after some bequests of the personalty, he directs
a sale of the whole balance of his estate, the proceeds, after payment of
debts, to be divided among his sons. These _|274 clauses are certainly comprehensive enough to
repel any rational inference that the testator intended to die intestate as to
any portion of his lands, or slaves, or personal estate. And besides, it is
shown by the record that nearly one-half of the property in the possession of
the testator passed by these residuary clauses--the two-fold inference from
which is, that he well understood their legal effect and operation, and that
they were intended to comprehend every species of property owned by him.
We
have deemed it scarcely necessary to offer an argument, or to cite authority
for the purpose of showing that the interests owned by Vanmeter in the
Cunningham estate were such as would pass under a general devise of all the
testator's lands. “It has been established from the earliest period, that a
reversion in fee, however remote, and though clearly not in the contemplation
of the testator, passes by general words in a will, even though there are other
lands to satisfy the words of the devise.” (1 Jarman, 599, note 1, and
authorities there cited.) It can not be doubted, therefore, that the interests
in question are embraced by the general clauses referred to, unless there be
other provisions of the will which can be construed as modifying their plain
import, and as restraining their legal effect.
It
is contended by the appellants that, in describing the boundary of the land
devised to his wife, the testator uses this language: “Beginning in the line
between the tract of land owned by Isaac Cunningham in his lifetime, and the
land owned by me, and running thence,” &c., “till it strikes the aforesaid
division line between my land and the land belonging to the estate of Isaac
Cunningham, deceased; thence with said division line to the beginning”-- which,
they say, is to be construed as a recognition by Vanmeter of the division line
between his lands and those of the Cunningham estate; that none of the specific
devises apply to any land across that line, and that the residuary devise of the
whole balance of his land must be confined to the same restricted application.
Now,
it must be remembered that the object of the testator, in this clause of the
will, was only to describe and identify the tract intended for his wife, and
not, as argued, to designate his _|275
own title or to define the boundaries of
his own entire estate. Regarded then as mere matter of description, for the
purpose indicated, the language is strictly accurate and appropriate, even upon
the assumption that he was aware of his title to the undivided interests in the
Cunningham estate, and expresses what the testator obviously intended to
express--the mere designation of a well known and long established division
line between the lands owned by himself and those belonging to the Cunningham
estate. In our judgment, these expressions are not entitled to the least
influence in determining the effect or application of the residuary clauses.
But
the appellants have presented an elaborate and ingenious argument, illustrated
by numerous maps and diagrams, by which they undertake to demonstrate
mathematically, from the situation and quantity of the sereval [sic] tracts of
land in the actual possession of the testator, and from the mode in which he
located certain specific devises out of those tracts, leaving a residue which,
upon the final division, may be so partitioned among the devisees as to suit
the allotments already made by his own will and by that of his father-in-law,
that the words “the whole balance of my land,” must have been intended to
relate exclusively to this balance of the known lands thus partially disposed
of by the prior specific devises, and can not, therefore, be construed as
including the lands in contest.
This
view of the case may be briefly disposed of. In the first place, the testator
did not locate all even of the specific devises of 150 acres each. The share
given to Thomas is to be located at the discretion of the executors, who are
also directed to lay off, out of designated tracts, several of the other shares.
And, “in dividing said balance, the children are to have, as far as
practicable, their interest therein laid off to them adjoining to that herein
devised to them.” So that the face of the will altogether fails to support the
theory insisted upon by the appellants--that the testator had in his mind a
fixed and determinate scheme of division, which his representatives were merely
directed to execute in a designated mode. It seems to us, on the contrary, that
quite a large discretion was confided to the executors in the location of both
the specific and residuary _|276
devises. Nor does it by any means follow,
that because a portion of the balance of the testator's lands is susceptible of
a convenient and advantageous division among the sons, therefore another
portion of such balance must be held exempt from the operation of a plain
provision requiring a division of all the testator's lands, upon the mere
ground of inconvenience. It is a well settled principle that the obvious
construction of a will can never be controlled by the inconvenient, or even
unmeritorious, nature of the devise.
Without
pursuing this branch of the inquiry further, we are satisfied that there is
nothing upon the face of the will which authorizes the assumption that the
testator used the words, “the whole balance of my land,” in any other than
their ordinary and primary sense, and that the construction which would
restrict the application of those words to a part only of the lands then owned
by the testator, so far as such construction is made to rest on the context, is
admissible.
2.
The remaining point involves the effect and competency of the parol testimony
which has been introduced for the purpose of proving that the testator did not
know that he owned the estate in controversy, and that he did not, therefore,
intend to dispose of it by his will.
It
is now well settled that evidence of extrinsic facts is admissible in aid of
the exposition of wills, although they are by our statute required to be in
writing, and are, for that reason, peculiarly within the general principle
which excludes parol evidence which tends to contradict, add to, or explain the
contents of written instruments. But this extrinsic evidence must always be
such as, in its nature and effect, simply explains what the testator has
written, and not what he intended to have written. In other words, the question
in expounding a will is not what the testator actually intended, as
contradistinguished from what his words express, but what is the meaning of the
words he has used? (Gwillim v. Gwillim, 5 B. & Adol., 129.)
Keeping
in view this important distinction, which has been expressly recognized by this
court, (Wheeler's heirs v. Dunlap 13 B. Mon., 292), there is but little
difficulty in applying the _|277
rules of law regulating the admission of extrinsic evidence in
cases of this sort. Those rules are laid down with great precision by Wigram in
a work devoted exclusively to an examination of this perplexing subject, and to
which repeated reference has been made by counsel on both sides.
Such
of those rules as relate to the point under consideration are found in the
first, second, and fifth “propositions of Wigram,” and are as follows:
1.“A
testator is always presumed to use the words in which he expresses himself
according to their strict and primary acceptation, unless from the context of
the will it appears that he has used them in a different sense, in which case
the sense in which he thus appears to have used them will be the sense in which
they are to be construed.”
2.
“Where there is nothing in the context of a will from which it is apparent that
a testator has used the words in which he has expressed himself in any other
than their strict and primary sense, and where his words so interpreted are
sensible with reference to extrinsic circumstances, it is an inflexible rule of
construction that the words of the will shall be interpreted in their strict
and primary sense, and in no other, although they may be capable of some
popular or secondary interpretation, and although the most conclusive evidence
of intention to use them in such popular or secondary sense be tendered.”
5.
“For the purpose of determining the object of the testator's bounty, or the
subject of disposition, or the quantity of interest intended to be given by his
will, a court may inquire into every material fact relating to the person who
claims to be interested, and to the property which is claimed as the subject of
disposition, and to the circumstances of the testator, and of his family and
affairs, for the purpose of enabling the court to identify the person or thing
intended by the testator, or to determine the quantity of interest he has given
by his will.”
Now,
it has been already shown that there is nothing in the context of Vanmeter's
will from which it can be inferred that he used the words in which he expressed
himself in any other than their strict and primary sense. The question then
arises, _|278
are the words so interpreted sensible
with reference to the persons and things described in the will? They certainly
are. The objects of the testator's bounty, as designated in the residuary
clauses, are his sons; the subjects of disposition are the whole balance of his
land, and the whole balance of his estate. The language is perfectly free from
ambiguity, and perfectly sensible in its application to the “extrinsic
circumstances.” The inflexible rule of construction, therefore, demands that it
should be interpreted in its strict and primary import, and in no other,
although the most conclusive evidence of an intention to use it in a different
sense may be tendered.
There
is nothing in the rule laid down in the 5th proposition, when understood as
limited by the two former, and as expounded and illustrated by the author,
which conflicts with these principles. The whole effect of the rule is, that
where the facts of the case are such as to exclude the primary meaning of the
words, or where the object of the testator's bounty, or the subject of
disposition, is described in terms which are applicable indifferently to more
than one person or thing--in both these classes of cases parol evidence of
material extrinsic facts is admissible to enable the court to determine whether
the intention of the testator is certain in any other sense of which the words,
with reference to the facts, are capable; or to enable the court to identify
the person or thing referred to in the will. For illustration: the word child,
strictly speaking, means a legitimate offspring, yet it has been applied to an
illegitimate offspring, where the circumstances of the case made it impossible
that the testator (who must have had some meaning) used the word in such strict
and primary sense. (Wilkerson v. Adams, 1 Ves. & B., 422.) And where a man
devises his manor of S., and it is made to appear that he has two manors of
that name, parol evidence is admissible to enable the court to determine which
of them he intended to give.
But
the case before us involves no question of primary and secondary meaning of
terms, nor of patent or latent ambiguity. It is the case of a clear and plain
gift of all the balance of the testator's lands, and of all the balance of his
estate, to his sons. _|279
The property in contest constituted a
part of the lands and estate then owned by the testator, and is necessarily embraced
by the words of the devises, in their natural, legal and ordinary
signification. And, as was said by this court in Mitchell v. Walker, (17 B.
Mon., 66), “we know of no case in which it has been held that where the words
used in describing the subject of the gift comprehended several objects, such
(parol) evidence is admissible to exclude from the description one or more of
them, on the ground that they, or some of them, were not actually intended to
be included. In such case, the intention is to be sought for in the words of
the will; and although parol testimony may sometimes be resorted to for
ascertaining the intended sense of the words, it can not be resorted to for the
purpose of ascertaining and giving effect to a secret intention inconsistent with
the words themselves, or restrictive of their natural and legal import.”
This
is the true principle deducible from all the authorities on this subject, and
is conclusive of the question under consideration. The effect of the proof
offered in this case is, not to explain the sense of ambiguous words, or to
apply them to doubtful or uncertain objects or subjects, but to establish a
secret intention, independent of, and inconsistent with, the words themselves.
It
results from what has been said that the fact so confidently relied on in the
argument, that the testator did not know he owned the estate in controversy,
would not, of itself, restrict the operation of the words of the will, or
prevent the estate from passing under it. The point has been expressly and
repeatedly decided by this court. In the case of Darnall, &c., v. Adams,
(13 B. Mon., 273), it was proved that the testator believed his interest in
certain slaves ceased with his own life, and of which he therefore supposed he
had no power to make any disposition by will; yet it was decided that the
property being his, and a part of his estate, passed by the broad terms of the
residuary devise.
And
in Wheeler's heirs v. Dunlap, supra, the court refused to consider the
parol evidence introduced to show that the testatrix only claimed and did not
suppose that she had a right to _|280
any more than a life
estate in the land, upon the ground that the fact offered to be proved afforded
no aid in ascertaining the meaning of the language used, inasmuch as that
meaning had to be arrived at from indications furnished by the will itself.
In
the more recent case of Mitchell v. Walker, supra, the same doctrine is
expressly recognized, and the adjudged cases relied upon by the appellants as
favoring the principle they contend for, are elaborately reviewed. The case,
especially, of Doe on demise of Vessey v. Wilkinson, &c., (2 Term R., 197),
is critically examined, and the remark of one of the judges to the effect that
if the testatrix "were not aware of her power, she did not intend to give
that which she was not aware she could give, and then the law gives it to the
heir, and we can not take it from him," is characterized as, at most, but
an obiter dictum, and not a judicial decision, even by one judge.
A
reference to the English authorities upon this point is deemed unnecessary, as
they tend to the same conclusion. Nor need we dwell upon the obvious
consequences which would result from the principle contended for. The only
purpose of a residuary clause is to pass all the estate not disposed of by the
other provisions of the will; and to allow proof in such cases that the
testator did not know, or had forgotten, that he owned certain property, and to
decide upon such proof that this property did not pass by the words of the
devise in which it was clearly and plainly comprehended, would be to offer a
premium to perjury, and to let in all the evils intended to be guarded against
by the statute which requires that these final and solemn dispositions shall be
made only in writing. The effect would be, also, in a majority of cases, to
defeat the actual intention of the testator. In the very case before us, it is
not denied that the testator intended an inequality in the disposition of his
estate, as plainly appears upon the face of the will. Where is the foundation,
in the will or in the record, for the presumption that if he had known the
estate in contest belonged to him, the same motives and reasons would not have
operated, and that he would have made no distinction between his sons and his
daughter in respect to the value of the devises to each?
_|281
Upon the authorities and principles
referred to, we are of the opinion that, by the will of Vanmeter, all the
interests he acquired in the estate of Isaac Cunningham by descent from his
children, were included, and passed to his sons, and that the appellants are
entitled to no part of those interests.
And
the judgment of the court below, which denied to the appellants this relief,
though upon a different ground, is therefore affirmed.