Avery v. Chappel

6 Conn. 270

• Court: Supreme Court of Connecticut
• Decided: July 15, 1826
• Status: Published

Opinion

DAGGETT, J.

The object of the bill is to obtain relief against a judgment of the superior court, renderedin favour of C. W. Chappel, one of the defendants, by which he recovered the possession of the real estate of his father Gilbert Chappel, lately deceased, under his will, duly proved and approved, by the court of probate. (See 6 Conn. Rep. 31.)

The plaintiffs (Rebecca Chappel having, since thedecease of Gilbert Chappel, intermarried with Jabez Avery,) proceed oa the ground, that the testator intended to give, by his will, the land in question, to his wife Rebecca, till Charles, his son, should arrive at full age, and that he should them take it by way of remainder. The court decided, that her interest in it ceased, on her intermarriage with her present husband.

The bill alleges, that before the making of the will, at the time of its execution, and afterwards, in repeated conversations with her, and others, the testator declared such to be his intention; and further, that he instructed the scrivener so to express it and that, by mistake, the will was so drawn as to give her the estate only during her widowhood.

The proof offered by the plaintiffs, was parol evidence only. Upon these facts, with our statute of wills, and the solemnities required by it, in view, it is certainly difficult to interpose for the relief of the plaintiffs. The court is asked to take from the devisee, the principal object of the testator's bounty, the possession of this estate, for a long period, in opposition to the true construction of the will, by parol proof of the declarations of the deceased, that he intended to give it to his wife: in other words, to make a will for him, when he sleeps in his grave. Strong reasons should be urged in support of a claim so novel, and so forbidding. It is not suggested, by the counsel for the plaintiffs, that parol evidence of declarations of the testator, made either before or after the execution of the will, to explain or vary it, can be received. Such a suggestion would be too bold. It cannot be suported, by a shadow of authority.

It is however urged, that parol evidence ought to be admitted, to correct mistakes in deeds and other writings ; and that a court of equity will relieve against such mistakes, as well as against fraud. To prove, this position, several authorities are cited. There is no doubt, that a mistake in a deed or contract may be shown, by parol proof; and that, either by a party seeking relief against it in his bill or setting it up, by way of defence, to rebut an equity. This is deemed the settled doctrine, in this country and in England. Many of the cases are brought together, in a lucid manner, Chancellor Kent, in a case cited by the plaintiffs, viz. Gillespie & ux. v Moon, 2 Johns. ch. Rep. 585. In Connecticut, the cases cited from Kirby 400. 1 Root, 404. 2 Root, 78. 3 Conn. Rep. 150, and 1 Day 139. are directly to that point. In the case last cited, Washburn v. Merrills, the principle was much discussed, and thoroughly established. The court, however, in such cases, will not interfere, except upon the most strong and satisfactory proof.

But the plaintiffs in this bill, are obliged to go much further, to obtain the relief sought. They must show, that the testator's intention may be proved to be different from what appears on the face of the will, by parol evidence that he directed the scrivener so to write it that the wife should enjoy the estate till the son should be twenty-one years of age. It is not believed, that any principle or precedent can be found to establish such a doctrine.

The principle of the common law, is, that parol evidence shall not be received to explain, controul or vary a written instrument; and that nothing was intended, at its execution, but what is expressed. Expressio unius est exclusio alterius.

In relation to wills, Chancellor Kent, in Mann & al. v Exetutors of Mann & al. 1 Johns. Ch. Rep. 231. 234. examined the subject, with an industry and learning scarcely equalled, except by himself in other cases, and declares the result to be, "That from Cheney's case (5 Co. 68.) down to this day, it has ben a well settled rule, that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specified cases; 1. Where there is a latent ambiguity arising dehors the will as to the person or subject meant to be described , and 2. To rebut a resulting trust." The cases referred to, fully support his positions.

If it be said, that the plaintiffs rely chiefly on the allegation of the instruction given to the scrivener and the mistake, it may be asked, if a will is to be established, by showing an intent to make one? In the present case, has the testator devised to his wife the land in question, not during her widowhood, as the will proved by the court of probate declares, but till Charles, the son, arrived at full age, because a witness testities, that he so directed the scrivener, though words of a totally different meaning were employed. Then, as Lord Talbot observed, (3 P. Wms. 354.) "the witnesses, and not the testator, would make the will ;" or, as Sir Matthew Hale said, (1 Mod. 310.) " How can there be any certainty? A will may be any thing, every thing, nothing. The statute appointed the will to be in writing, to make a certainty; and shall we admit collateral avermerits and proofs, and make it entirely uncertain ?" Again, in Towers v. Moore, 2 Vern. 93., it was attempted to have the will explained, by proof of what the testator declared, and the instruction he gave. The court said, "that devises of land must be in writiig, and they would not go against the act of parliament."

In Purse v. Snaplin, (1 Atk. 415.) Lord Hardwicke says, "mistakes are not to be supposed, if any construction that is agreeable to reason can be found out." 2 Fenb. 477. "The will that must pass the land, must be in writing, and must be decided by what is contained in it."

It was decided, by the highest court in South-Carolina, after much discussion and deliberation, that parol evidence, even of the person who drew the will, and who was of unimpeachable character, when offered to support the allegation of a mistake in the will, and to prove, that the testator intended to dispose of the property in a manner not apparent on the face of the will, was not admissible. Rothmaler v. Myers & al. 4 Desaus. 215. Where there is a complete and plain will in writing, it cannot be altered, or influenced, by parol evidence as to the intention. 2 P. Wms. 421. Evidence as to matter dehors the will, to show the mistake, is insufficient. 2 Atk. 373. Even the structions for the will, are inadmiss2ble, to show a mistake. 2 Ves & Bea. 318, 1 Mad. Chan, 81.

The doctrine above stated, is fully confirmed, by cases cited in 3 Starkie on Evidence 1010. 1017,-18. 1027., as well as by the opinion of that learned commentator. In a very late decision of the court of Common Pleas, in England, 4 Dow, 65., the same principle is strongly enforced.

I am, then, well satisfied, that the parol evidence offered, ought not to have been admitted; and that the plaintiffs can take nothing by their bill, and would so advise the superior court.

The defendants have also urged, that the jurisdiction of this cause, if relief could be had any where, belongs to the court of probate; that to that court belongs the power of deciding on wills subject to revision in the superior court; and that it would create an anomaly in our law, that a will, having been established in a court of probate, should be annulled, or its pro- visions essentially varied, in the superior court, except by ap- peal, as the law provides. This objection, as it strikes my mind, is of weight; but I have not examined it, with a view to express an opinion upon it, because a decision upon the other point decides the case.

The other Judges were of the same opinion, except Peters, J., who did not hear the argument, and therefore gave no opinion.

New trial to be granted.