American Bible Society v. Pratt

91 Mass. 109

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1864
• Status: Published

Opinion

Metcalf, J.

It is an unquestioned general rule of law that no extrinsic evidence of the intention of a testator is admissible to control or alter the written provisions of his will. There is an exception to this rule in cases of latent ambiguity; that i% when the will on its face is clear, and becomes doubtful only when applied to the subject matter of the devise or bequest, or to the devisee or legatee. And the question now before us is, whether this case is within the general rule or within the exception.

The cases on this subject are numerous. They are also irreconcilable, as was said by Lord Abinger, 5 M. & W. 367, and by Shaw, C. J., 7 Met. 204; less latitude in the admission of" extrinsic evidence having been allowed in the later cases than in the earlier. 1 Greenl. Ev. § 289. 1 Story on Eq. (8th ed.) § 180 a. A much larger number of these cases relate to the admissibility of such evidence to show who were the devisees or legatees intended by the testator, than to its admissibility to show what was the intended subject matter of his devise or bequest. But the same general principle is everywhere treated as applicable alike to both classes of cases. In none of the books which treat of this matter do we find these two classes of cases discussed separately, but the two are intermixed, as if there were no difference in the principle to be applied to them; and courts, in deciding cases of one class, refer to and apply decisions on the other. “ I do not know much difference,” said Lord Hardwicke, “ in error in the description of the person of the legatee or of the thing.” 1 Ves. Sen. 256. And in 7 Met. 204, Chief Justice Shaw declared that the judgment in Miller v. Travers, 8 Bing. 244, excluding extrinsic evidence as to the estate intended to be given by a will, was decisive that such evidence as to a testator’s intended legatee was inadmissible, in the case then before the court for adjudication.

Now it seems to us there can be no doubt that if this testatrix had made a bequest to the Dedham Bank, in Dedham, the Dedham Institution for Savings could not successfully have claimed it; that extrinsic evidence would not have been admissible to show that she meant that institution and not the bank named in her will. The case of Tucker v. Seaman's Aid Society, 7 Met. 188, is conclusive on this point. And we incline to the opinion that we might well decide this case for the defendant an this single ground. But we have proceeded to examine all the authorities and grounds of argument found on the parties’ briefs.

Selwood v. Mildmay, 3 Ves. 306, was cited by the counsel fo the plaintiffs — a case in which the testator bequeathed to his wife the interest and proceeds of ¿61250, part of his stock in the four per cent, annuities of the Bank of England. Evidence was admitted that he had no stock in those annuities, either when he made his will or wdien he died, but that he formerly had such stock, and had sold it and invested the proceeds thereof in long annuities, which were his at the time of his death; and it was decided that the bequest should operate on those long annuities. See also Gallini v. Noble, 3 Meriv. 691; Lindgren v. Lindgren, 9 Beav. 358, and other similar cases cited in Wigram on Extrinsic Ev. (3d ed.) 102-106; and Redfield on Wills, 600-603; Roman Catholic Orphan Asylum v. Emmons, 3 Bradf. (N. Y.) 144. It would be a useless labor to examine and discuss these cases severally, and to state the differing opinions of judges and writers concerning them. It will be found, in all of them, that the testator bequeathed property purporting to be that which he had at the time of making his will; that he had not then the property described, but had other property of a similar nature, which was held to pass by the bequest. We cannot apply those cases to the will of this testatrix, who bequeathed, not what purported to be hers in the Dedham Bank when her will was made, but what might be hers in that bank at the time of her decease. No decision on a case like this was referred to in argument, or is to be found, which warrants the admission in evidence of the facts agreed in the present case, to show that the testatrix meant that the plaintiffs should have the money that might be due to her, not in the bank named by her, but in another institution. When she made her will, she may have designed to deposit in the Dedham Bank money which, or so much thereof as might be there at her decease, should be received by these plaintiffs. Besides; if it had so happened that she, after her will was made, had deposited money in that bank for safe keeping merely, or if a third person had deposited . money there in her name and for her personal benefit, there cent be no legal pretence for denying that such money, or such part of it as should have remained there at her decease, however small the sum, would have been all which the plaintiffs could legally claim under this bequest. The consequence, that in such case the presumed wishes of the testatrix would have been frustrated, and that the bequest might have been inadequate to effect her benevolent purpose, is no legal reason for admitting extrinsic evidence which is not admissible in other cases. Jones v. Curry, 1 Swanst. 66.

The cases of Allen v. Lyons, 2 Wash. C. C. 475, and Winkley v. Kaime, 32 N. H. 268, cited by the plaintiffs’ counsel, are-of a class mentioned in 1 Greenl. Ev. § 301, and in other books, where upon applying a will to its subject matter it appears that the description of that subject matter is true in part, but not true in all particulars. In such cases, so much of the description as is false is rejected, and the will takes effect if a sufficient description remains to ascertain its application. The maxim, falsa demonstratio non nocet, is applied to such cases. In the case in 2 Wash. C. C. the testator devised to his daughter his lot in Third Street, Philadelphia, in the occupation of H. Evidence was admitted that he had no lot in Third Street, but had a lot in Fourth Street, in the occupation of H. After rejecting Third Street, as a false description, sufficient remained to show that he meant to devise his lot which was occupied by H. The case in 32 N. H. and several English cases are of the same kind. But neither of them is applicable to the present case. To make a case of that class applicable to this, a decision should be produced like that which we will suppose: to wit, that a testator, who never had but one house, and that in Boston, had devised any house he should have in Dedham, at the time of his decease, and it had been adjudged that his house in Boston passed by that devise. Judgment for the defendant.