Mr. Justice Sharswood
delivered the opinion of the court, May 25th 1874.
Parol evidence was unquestionably admissible to show what was the “ extent of the McKinstry farm occupied and farmed by William Brown,” at the date of the will of the testator, Adam Hoke, and that the descriptive addition to the devise, “ containing eight fields,” was a mistake. If this was shown it would fall within the [200]*200rule Falsa demonstrate non nocet. But it is very plain that this was a question for the jury. However clearly the parol evidence might establish the fact that the McKinstry farm occupied and farmed by William Brown at the date of the will contained nine fields — and not eight, as described — the credibility of that evidence, and the application of it to the case, must be determined by the jury, under instructions as to its legal effect by the court. We think, therefore, that the learned judge below fell into an error in directing a verdict for the plaintiff, which established that the McKinstry farm did consist of nine fields, and not eight, as described in the will.
Judgment reversed, and venire facias de novo awarded.
The case came on for trial again on the 24th of January 1874, before Rowe, P. J.
The evidence was substantially the same as on the first trial.
The plaintiff’s third point, which was affirmed, was :—
The words “ containing eight fields,” will not control the more specific designation which Adam Hoke used to describe the land devised to the plaintiff, embodied in the languageii that part of the McKinstry farm at present occupied and farmed by William Brown,” and these latter words, if they correctly described the land in dispute, at the date of the will, must prevail to give the plaintiff the verdict.
The defendants’ 2d and 3d points, which were refused, were:—
In the devise under which the plaintiff claims, the testator, has given a clear and unmistakable description of the land which he intended to give to the plaintiff by his will, namely, eight fields of the McKinstry farm then in the tenancy of William Brown, and as the plaintiff has failed to show that the testator was acting under a mistake, when he made that description, the plaintiff is limited to the eight fields and cannot recover.
When the jury come to apply the devise to the land, doubtful and ambiguous expressions must give way before those which are clear and unambiguous, and if the jury from the evidence find that the eight fields in the description are found in the plaintiff’s favor, witho'ut the one in dispute, then this fills the description and gives the plaintiff all he has any right to claim, and he cannot recover.
The court charged:—
“ The language of the will is : ‘ I give and bequeath to Charles Adam Eberly (the plaintiff) that part of the ‘ McKinstry farm ’ at present occupied and farmed by William Brown, containing eight fields.
[“ Now the construction of this devise is for the court, and we say that under this devise the plaintiff took all that part of the McKinstry farm at the date of the will occupied and farmed by William Brown, whether eight fields or more. The words, con[201]*201taining eight fields, do not limit the previous clause, but are a descriptive addition, as if the testator had said containing 200 acres.]
“ All we have to do is apply the description in the will to the subject of the devise, and give to the plaintiff this field if it was a portion of that part of the McKinstry farm occupied and farmed by William Brown on the 21st of May 1867, and to refuse it to him if it was not. That the testator describes the tract devised to the plaintiff as containing eight fields is a fact in the case bearing on the question of whether this ninth field was in the occupancy of Brown at the date of the will.
“ First, then, was this field in dispute, part of the ‘ McKinstry farm ?’ For the testator gives the plaintiff only ‘ part of the Mc-Kinstry farm,’ and under these words he cannot take lands which were not part of the McKinstry farm.’ How did the testator use the words 4 the McKinstry farm ?’ The plaintiff contends that he used them to describe the whole body of land conveyed by Mc-Kinstry to Hoke; and I think this is the most easily accepted interpretation. In another clause of the will he speaks of the ‘ Stewart farm’ as including a portion of the McKinstry farm. Now it is not disputed among counsel that this 18-acre field, indeed, the whole of the ‘Old Wilkey field,’ was conveyed by McKinstry to Hoke. This field in dispute then was a part of the McKinstry farm, if these words — the McKinstry farm — were used by the testator to mean the tract bought by him of McKinstry. But the defendants contend and have tried to show that this field is part of a larger field called by the testator the ‘ Old Wilkey field,’ which though bought with the other lands from McKinstry, was not regarded by the testator as any part of the McKinstry farm, as he was accustomed to use fhe words‘the McKinstry farm.’ This position of the defendants has not been established very satisfactorily to me, but may have been established to your satisfaction, and if you find it to be sustained by the evidence the plaintiff cannot recover.
“I incline to think that the testator used the words ‘McKinstry farm ’ to mean all the lands he had bought of McKinstry; and if so, then this field was part of the McKinstry farm, and the plaintiff will have taken one step toward a recovery. But only one; for he must go on and show that not only was the field a part of the McKinstry farm, but that it was, at the date of the will, occupied and farmed by William Brown. ‘ Occupied ’ is defined by Webster as ‘ held in possession.’
“ The plaintiff has called William Brown and others. The substance of their testimony is* * * After stating it the court proceeded:—
“ The defendants, on the other hand, have endeavored principally to. show that Hoke was familiar with his farms; that this field was not previously used in connection with the Eberly farm, which con[202]*202tained' the eight fields not in dispute; that it was not contained in the tract leased to Brown by the written agreement; that Hoke had given him another field for oats in the spring previous, but only temporarily; that Hoke and Anderson pastured this field in the fall of 1867, and that Anderson repaired the fences that year ; that this field was always used in connection with the ‘ Home,’ or ‘ Stewart ’ farms; that in 1866, when Hoke allowed Brown to take it for corn, it was under lease to Miller, and at the date of the will, was under lease with the ‘ Home ’ farm, to Anderson. And so I understand the testimony of Miller and Anderson to be.
“ If the evidence of these two witnesses is to the effect that defendants contend for, they may argue that at the date of the will this field was under lease to Anderson, and that he had therefore the possession and occupancy of it, though it was planted in corn at the time, by Brown; that though Brown was permitted to put a crop of corn in the field — for he says that it was given to him for that purpose only, and that though he pastured it, he did not think he had any right to do so — yet that Miller under his lease was in possession in 1866, and Anderson under his lease in 1867. This is a very strong point made by defendants. * * *
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Mr. Justice Sharswood
delivered the opinion of the court, May 25th 1874.
Parol evidence was unquestionably admissible to show what was the “ extent of the McKinstry farm occupied and farmed by William Brown,” at the date of the will of the testator, Adam Hoke, and that the descriptive addition to the devise, “ containing eight fields,” was a mistake. If this was shown it would fall within the [200]*200rule Falsa demonstrate non nocet. But it is very plain that this was a question for the jury. However clearly the parol evidence might establish the fact that the McKinstry farm occupied and farmed by William Brown at the date of the will contained nine fields — and not eight, as described — the credibility of that evidence, and the application of it to the case, must be determined by the jury, under instructions as to its legal effect by the court. We think, therefore, that the learned judge below fell into an error in directing a verdict for the plaintiff, which established that the McKinstry farm did consist of nine fields, and not eight, as described in the will.
Judgment reversed, and venire facias de novo awarded.
The case came on for trial again on the 24th of January 1874, before Rowe, P. J.
The evidence was substantially the same as on the first trial.
The plaintiff’s third point, which was affirmed, was :—
The words “ containing eight fields,” will not control the more specific designation which Adam Hoke used to describe the land devised to the plaintiff, embodied in the languageii that part of the McKinstry farm at present occupied and farmed by William Brown,” and these latter words, if they correctly described the land in dispute, at the date of the will, must prevail to give the plaintiff the verdict.
The defendants’ 2d and 3d points, which were refused, were:—
In the devise under which the plaintiff claims, the testator, has given a clear and unmistakable description of the land which he intended to give to the plaintiff by his will, namely, eight fields of the McKinstry farm then in the tenancy of William Brown, and as the plaintiff has failed to show that the testator was acting under a mistake, when he made that description, the plaintiff is limited to the eight fields and cannot recover.
When the jury come to apply the devise to the land, doubtful and ambiguous expressions must give way before those which are clear and unambiguous, and if the jury from the evidence find that the eight fields in the description are found in the plaintiff’s favor, witho'ut the one in dispute, then this fills the description and gives the plaintiff all he has any right to claim, and he cannot recover.
The court charged:—
“ The language of the will is : ‘ I give and bequeath to Charles Adam Eberly (the plaintiff) that part of the ‘ McKinstry farm ’ at present occupied and farmed by William Brown, containing eight fields.
[“ Now the construction of this devise is for the court, and we say that under this devise the plaintiff took all that part of the McKinstry farm at the date of the will occupied and farmed by William Brown, whether eight fields or more. The words, con[201]*201taining eight fields, do not limit the previous clause, but are a descriptive addition, as if the testator had said containing 200 acres.]
“ All we have to do is apply the description in the will to the subject of the devise, and give to the plaintiff this field if it was a portion of that part of the McKinstry farm occupied and farmed by William Brown on the 21st of May 1867, and to refuse it to him if it was not. That the testator describes the tract devised to the plaintiff as containing eight fields is a fact in the case bearing on the question of whether this ninth field was in the occupancy of Brown at the date of the will.
“ First, then, was this field in dispute, part of the ‘ McKinstry farm ?’ For the testator gives the plaintiff only ‘ part of the Mc-Kinstry farm,’ and under these words he cannot take lands which were not part of the McKinstry farm.’ How did the testator use the words 4 the McKinstry farm ?’ The plaintiff contends that he used them to describe the whole body of land conveyed by Mc-Kinstry to Hoke; and I think this is the most easily accepted interpretation. In another clause of the will he speaks of the ‘ Stewart farm’ as including a portion of the McKinstry farm. Now it is not disputed among counsel that this 18-acre field, indeed, the whole of the ‘Old Wilkey field,’ was conveyed by McKinstry to Hoke. This field in dispute then was a part of the McKinstry farm, if these words — the McKinstry farm — were used by the testator to mean the tract bought by him of McKinstry. But the defendants contend and have tried to show that this field is part of a larger field called by the testator the ‘ Old Wilkey field,’ which though bought with the other lands from McKinstry, was not regarded by the testator as any part of the McKinstry farm, as he was accustomed to use fhe words‘the McKinstry farm.’ This position of the defendants has not been established very satisfactorily to me, but may have been established to your satisfaction, and if you find it to be sustained by the evidence the plaintiff cannot recover.
“I incline to think that the testator used the words ‘McKinstry farm ’ to mean all the lands he had bought of McKinstry; and if so, then this field was part of the McKinstry farm, and the plaintiff will have taken one step toward a recovery. But only one; for he must go on and show that not only was the field a part of the McKinstry farm, but that it was, at the date of the will, occupied and farmed by William Brown. ‘ Occupied ’ is defined by Webster as ‘ held in possession.’
“ The plaintiff has called William Brown and others. The substance of their testimony is* * * After stating it the court proceeded:—
“ The defendants, on the other hand, have endeavored principally to. show that Hoke was familiar with his farms; that this field was not previously used in connection with the Eberly farm, which con[202]*202tained' the eight fields not in dispute; that it was not contained in the tract leased to Brown by the written agreement; that Hoke had given him another field for oats in the spring previous, but only temporarily; that Hoke and Anderson pastured this field in the fall of 1867, and that Anderson repaired the fences that year ; that this field was always used in connection with the ‘ Home,’ or ‘ Stewart ’ farms; that in 1866, when Hoke allowed Brown to take it for corn, it was under lease to Miller, and at the date of the will, was under lease with the ‘ Home ’ farm, to Anderson. And so I understand the testimony of Miller and Anderson to be.
“ If the evidence of these two witnesses is to the effect that defendants contend for, they may argue that at the date of the will this field was under lease to Anderson, and that he had therefore the possession and occupancy of it, though it was planted in corn at the time, by Brown; that though Brown was permitted to put a crop of corn in the field — for he says that it was given to him for that purpose only, and that though he pastured it, he did not think he had any right to do so — yet that Miller under his lease was in possession in 1866, and Anderson under his lease in 1867. This is a very strong point made by defendants. * * *
“ The case turns very much upon the word ‘ occupy.’ That this field was, at the date of the will, farmed by William Brown, is not a matter of contention among the counsel, but was it then in a proper sense, occupied — held in possession — by him ? To farm land is not necessarily to occupy it. If, for instance, the testator or his tenant had had a crop growing in this field, ready to harvest, and Brown had been permitted to cut it only, and had been so engaged at the date of the will, it could be said he was, at the date of the will, farming the land, but it could not be said that he occupied it. So in the same way, the question arises whether one who merely puts a field in corn for one crop, though he farms the land, can be said to occupy it. If the testator, in your opinion, attached this field to the other lands leased to Brown, so as to make it a part of the farm occupied by him, and i.t was so attached to and made a part of that farm at the date of the will, then it was occupied by Brown. But if Mr. Hoke, without attaching it to Brown’s land, only permitted him to use it for a special and temporary purpose, then, though farmed, it cannot be said to hare been occupied by Brown.” * * *
The verdict was for the plaintiff.
The defendants sued out a writ of error and assigned for error: the answers to the points and the part of the charge in brackets.
The case was heard in the Supreme Court, on this writ of error, May 12th 1875, before Agnew, 0. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
[203]*203J. Stewart (with whom was F. M. Kimmell), for plaintiffs in error. — The doctrine falsa demonstratio non noeet, applies only when the words of devise exclusive of the false description are of themselves sufficient to describe the property; reference being had to the situation of the premises and other circumstances pointing to the meaning of the description: Hubbard v. Hubbard, 15 Q. B. 341. If all the references to the devise are true, the court can not reject any of them.
J. Me.7). Sharpe (with whom was F. S. Stambaugh), for defendants in error, cited Vernor v. Henry, 6 Watts 193; Stebbing v. Walkey, 2 Brown Ch. Rep. 85.
Judgment was entered in the Supreme Court, May 24th 1875.
Per Curiam. — The devise of “ that part of the McKinstry farm at present occupied and farmed by William Brown,” is clearly a description of the thing devised. It has no other means of'identification. A devise of that part of the McKinstry farm containing eight fields, would not define the devise at all unless the McKinstry farm had but eight fields upon it in all.
■ It is clear therefore when there were more than eight fields in this farm, the devise could be determined only by ascertaining what part of the farm was occupied and farmed by Brown. If he occupied and farmed more than eight fields and we confine the devise to eight, what fields shall they be? Neither court nor jury could determine this, for it would be to make a will not to interpret it. It is manifest that the two descriptions cannot stand together, and we must take that which will give the will effect, which is by giving the devisee the part of the farm occupied and farmed by Brown. This was necessarily a fact for the jury, and was fairly submitted.
Judgment affirmed.