Graves v. Rose

92 N.E. 601, 246 Ill. 76

Opinions

Mr; Justice Cartwright

delivered the opinion of the court:

Plaintiffs in error, Elizabeth Graves and William H. Rose, with Harriet S. Kreigh, three of the heirs-at-law of Joseph Rose, deceased, filed their bill in the circuit court of Will county for partition of the east half of the southwest quarter of section 9 and the north-east quarter of section 12, in township 33, north,' range 11, east of the third principal meridian, in said county, against the defendants in error, James Rose, Charles Rose, Mary J. MacKender and Robert Henry Rose, (who was called Robert Rose Holmes,) the other htirs-at-law of said Joseph Rose, deceased, alleging that said Joseph Rose died intestate as to said lands and that the same had descended to his heirs-at-law. The administrator with the will annexed was also made a defendant to the bill. The defendants James- Rose, Charles Rose and Mary J. MacKender by their answers admitted that said Joseph Rose was the owner of the lands sought to be partitioned at the time of his death, but alleged that he intended to devise the same to them by his last will and testament but in said last will and testament misdescribed the same; that the said will contained the following devises: “I give, devise and bequeath to my son Charles Rose all of west of N. W. of section 12, and tó my daughter Mary J. MacKender east x/¿ .of N. W. of section 12, and to my son James Rose all of the east half of the north-west % °£ section nine (9) that the testator did not own the lands described in the will and intended to devise the lands which he actually owned; that the letter “W” in “N. W. in the devises to Charles Rose and Mary J. MacKender was used by mistake instead of the letter “E,” and the word “north” in the description “north-west J4” in the devise to James Rose was used by mistake instead of the word “south.” The answers alleged that the defendants were severally in possession of the tracts of land intended to be devised to them, respectively, under promises of the testator to convey the same to- them, and each defendant prayed for a specific performance of the promise alleged by the said defendant. They also filed cross-bills alleging the same facts and praying for specific performance of the alleged promises. The chancellor sustained exceptions to the prayers of the answers for relief and sustained demurrers to the cross-bills' but granted leave to amend the cross-bills. The defendants did not avail themselves of the leave so given and no amendment was made. The cause was heard upon the original bill, answers and replications, and evidence, oral and documentary, heard by the chancellor, and it was proved that the testator did not own the lands described in the will but did own the lands sought to be partitioned. A decree'was entered finding that both of the letters “N” and “W” contained in the devises to Charles Rose and Mary J. MacKender should be stricken out as surplusage, and that the word “north-west” contained in the devise to James Rose should also be stricken out, and that said letters and words were incorrect and false. It was ordered, adjudged and decreed that the will devised in fee simple to Charles Rose the west half óf the north-east quarter of section 12, township 33, north, range ix, east of the third principal meridian; to Mary J. MacKender the east half of the north-east quarter of said section 12, and to James Rose the east half of the south-west quarter of section 9, in said township 33, in Will county, and partition of the premises was denied. The record has been brought into this court as a return to a writ of error.

Our statute requires all last wills and testaments to be in writing and properly witnessed, and extrinsic evidence is never admissible to alter, detract from or add to the terms of a will. While the object of construction is to ascertain the intention of the testator, it must be an intention expressed in the will and it must be determined from the language used. A will cannot be reformed to conform to any intention of the testator not expressed in it, no matter how clearly a different intention may be proved by evidence of extrinsic facts. If that were not so, all wills would be subject to proof of mistake and of a different intention from that expressed, so that, in fact, property would pass without a will in writing which the law declares shall not pass except by a written will. In Stark-weather v. American Bible Society, 72 Ill. 50, it was said: “The courts are so strict that they will not permit the terms of a will to be altered even when the devisor has by mistake misdescribed land in a devise, by substituting that which could be clearly proved to have been intendedand in Bishop v. Morgan, 82 Ill. 351, it was held that a mistake in description could not be corrected by extrinsic evidence, and that reference to the number of acres could not cohtrol the plain words of a will. The rule has been clearly stated in numerous decisions. Kurts v. Hibner, 55 Ill. 514; Bingel v. Volz, 142 id. 214; Williams v. Williams, 189 id. 500; Vestal v. Garrett, 197 id. 398.

The testator described the lands devised as certain parts of sections 9 and 12, without township, county, range or State, and the chancellor permitted these matters of description to be supplied by extrinsic evidence. There was no error in this, for the reason that parol evidence is admissible in explanation of a latent ambiguity, which is an ambiguity that arises where the writing upon its face appears clear and unambiguous but the meaning is rendered uncertain by extrinsic evidence, and where the uncertainty is created by such evidence it may be removed in like manner. This is not regarded as a violation of the rule that a writing shall not be contradicted or explained by oral evidence. A common instance of a latent ambiguity is such as appears in this case, where there are descriptions which are not ambiguous but which may be applied to two different subjects. Illustrations have been given of a devise of the testator’s manor of Dale and at his death it is found that he has two manors of that name,—South Dale and North Dale,—and upon proof of that fact it may be shown which one is intended; or where a deed purports to convey Black acre and it is shown that there are two tracts of land bearing that name. (3 Phillips on Evidence, 750.) A latent ambiguity raised in that way can be explained by any evidence which shows the actual subject of the devise or conveyance. That principle was stated in Dougherty v. Purdy, 18 Ill. 206, where there was a conveyance of an undivided half of the north-west quarter of section 1, in township 1, north, in range x, west, in the State of Illinois, and the deed did not show whether the land was east or west of the fourth or any other meridian. The court, by merely looking at the deed, could not say that it did not describe the premises accurately, but by looking outside of the deed, at the acts of Congress and the public surveys, it was found that there were meridians in such surveys and more than one lot of land to which the description would apply. It was decided that the latent ambiguity raised by such knowledge could be explained by evidence. One familiar with government surveys might naturally say that a description of land without township, county, range or State would be; void as describing nothing, but as a rule of law it is immaterial whether the extrinsic facts are such as must be proved by testimony or are so generally known that the court will take judicial notice of them, which is only a question of the method of ascertaining the facts. The same doctrine was applied in Clark v. Powers, 45 Ill. 283, where a deed described a tract as the east half of the south-east quarter of section 14, in Liberty township, 1, west of the fourth principal meridian, in the county of Mercer. There was no township called Liberty in Mercer county, and there were three sections No. 14 in range 1, west. The ambiguity was shown by the evidence of these facts, and it was held susceptible of explanation by showing which one of the several pieces the grantor claimed. In Billings v. Kankakee Coal Co. 67 Ill. 489, a tax deed did not show in what county, State, or. east of what meridian the lands lay. It was held that the deed was not void for uncertainty, there being several meridians to which the description could equally apply, and that the ambiguity, being-latent, could be explained by evidence of facts and circumstances. In Halliday v. Hess, 147 Ill. 588, a deed described land as being in section 8 but did not give any township. There were several sections numbered 8 in the county to which the description might apply, and it was considered proper to explain the latent ambiguity by parol. Here, it was proved that Joseph Rose, the testator, owned lands in sections' 9 and 12, in township 33, north, range 11, east of the third principal meridian, in Will county, which was a proper explanation of the ambiguity concerning the location of those sections. The rule by which a latent ambiguity raised by extrinsic evidence may be removed by the same kind of evidence has no application, in principle or by authority, to a description which is free from' ambiguity, and can only apply to one certain and definite thing, and therefore it does not apply to the definite and certain descriptions contained in the will in this case. There is neither doubt, uncertainty, insufficiency nor ambiguity in the descriptions of the subdivisions of sections 12 and 9 of the will, and neither of them could be applied to more than one subject of a devise.

There is another condition which has frequently arisen in the construction of wills where the description of the property intended to be devised is true in part but not true in every particular, and it is not a violation of the rule that a will cannot be reformed or a mistake in description corrected, to reject that part of the description which is shown to be false. When that is done the devise will be. held valid if enough remains to identify the subject of the devise in accordance with facts and circumstances existing when the will was made, but the rule that nothing can be added to the description is inflexible and forbids the insertion of anything else in place of that stricken out. In all of the decisions it has been emphatically declared that no word or words can be supplied. In Kurtz v. Hibner, supra, the testator devised two tracts of land in Will county,—one in section 32 and the other in section 31. It was held that the words of description being unambiguous and the thing devised certain and specific, no extrinsic evidence was admissible to show that the testator intended to devise different lands, and that to make the change insisted upon would be to make a new and different will. In Bingel v. Volz,.supra, the testator devised to his daughter seventy acres off of the south side of the north half of the north-' west quarter of section 16, which he did not own, but he did own the south half of the north-west quarter and the north half of the south-west quarter of the same section. It was insisted that the intention was to devise the south seventy acres of the north half of the south-west quarter, and such was the fact; but the court said that if a portion of the description were rejected what was left would not correctly describe the land intended, and that the change involved more than construction and required reformation. In Williams v. Williams, supra, there was a devise of “forty acres of land, the same being the north-east forty of section 22.” The testator did not own any land in the northeast quarter of section 22 nor any tract of forty acres which could be. located by striking out a part of the description, but he did own three tracts aggregating about forty-one acres, one of which was situated in the north-west quarter and the other two in the south-west quarter of that section. If the word “north-east” should be stricken out there was no forty-acre tract owned by the testator, and it would be necessary to put three descriptions together to give effect to the intent of the testator, which it was held could not be done. The court, said, to permit evidence the effect of which would be to take from the will plain and unambiguous language and insert other language in lieu thereof would violate the established rule of law. In Lomax v. Lomax, 218 111. 629, the testator owned land in section 14 but did not own the south-west fractional quarter of section 24, which he devised. It was held that parol evidence could not be admitted to show a mistake in the section; that the language described a tract of land capable of being readily identified, and that if the word and figures “section 24” or the figures “24” were rejected nothing would remain to indicate in what section the land was located, and, it would be necessary to import something into the will by substituting the figures “14.”

There is another class of cases where the court has given effect to the intention of the testator by striking, out words of false description where it was not considered necessary to substitute .anything or to add to the language of the will. In the case of Decker v. Decker, 121 Ill. 341, there was a devise of twenty acres off the west half of the north-east quarter of the north-east quarter of section 33. The testator never owned the north-east quarter of the north-east quarter but did own the north-west quarter of the north-east quarter. The court struck out the words “of the north-east quarter” where they occurred the first time as being false, leaving the description “twenty acres of the north-east quarter.” The land was then described by quantity and its location as being in the north-east quarter, and the evidence showed that the testator owned only twenty acres in that quarter, which was identified as the land devised. The court said there was nothing1 added to the terms of the will; that courts are without the power of substituting for the written words of the testator other and different -words not used by him, and that the only effect of the decision was to malee the devise effective of the twenty acres which the testator owned.

Where the subject of a devise is described by quantity it may be identified by extrinsic proof, and there have been several other cases of that kind where the property could not otherwise have been identified without adding to the will. In Whitcomb v. Rodman, 156 Ill. 116, the devise was of one hundred acres of land to the testator’s son Joseph,—sixty acres off of the west side of the south-east quarter of section 22, and forty acres being the north-west quarter of the south-east quarter of said section. The testator did not own the forty acres as described but did own a forty-acre tract known as the south-east quarter of the north-east quarter of the same section. The court said that while words could not be added to a will, so much as was false in the description mig'ht be stricken out if enough remained to identify the land. The court therefore struck out the words “north-west” and “south-east,” which left forty acres, it being a quarter of a quarter of section 22, and the testator owned two forty-acre tracts in the northeast quarter. He also devised to his son Edward forty acres, in which there was a like false description and it was treated in the same way. The circuit court had held that the two forty-acre tracts were devised severally to the sons, but this court said that the two sons took the two tracts undivided, since the separate forties could not be identified without adding to the will, but the error did not affect the plaintiffs in error. The court was enabled to do that on account of the designation of the lands by quantity. In Huffman v. Young, 170 Ill. 290, there was a devise, by quantity, of 62^ acres off of the east side of the north-east quarter of section 20. The testator owned 62^ acres in the quarter section but not off of the east side. A devise of 62^ acres in a certain government subdivision is sufficient by identifying the portion intended, and the court struck out the words “off of the east side.” As the quantity of land was mentioned, the remaining description was sufficiently definite without any addition. In Pelkel v. O'Brien, 231 Ill. 329, the testator devised to his widow a life estate in the north half of the south-east quarter of section 27, containing eighty acres, more or less. He did not own the whole of the north half of the south-east quarter but did own the east half of the quarter section. The court said that the purpose of the testator being to devise land “containing eighty acres,” the devise would be given effect by striking out the word “north.” In Collins v. Capps, 235 Ill. 560, the devise was of the west half of the north-east quarter of section 10, containing about seventy-six acres. The court held that by striking out the word “west,” which was false, there remained a devise of the half of the north-east quarter, and as the testator only owned in the quarter section seventy-six acres and the description applied to it, the devise was valid. In Gano v. Gano, 239 Ill. 539, certain words were stricken out of the devise, and it was thought that sufficient then remained to identify the property intended to be devised, and the decision was in accordance with that conclusion.

In some cases there has been a designation of the subject of the devise which was sufficient in itself but followed by a misdescription which could be rejected and leave a valid devise. Emmert v. Hays, 89 Ill. 11, is an example, where the property devised was described as "being what is known as the Hays farm” but misdescribed as to the section. The added description was rejected as surplusage and the correct description allowed to stand. Also in Morrall v. Morrall, 236 Ill. 640, there was a* devise of "the homestead” followed by an imperfect description," which was rejected. Inasmuch as the devise of the homestead would have been good, it was considered proper to determine the correct description of it. Whatever difference of opinion may have existed in any of these cases, related to the application of the rule forbidding reformation of a will and not to the rule itself, which the court always asserted.

In this case the devisees who were defendants, by their answers, alleged mistakes of the testator, and proposed that the letter “W” after the letter “N” in the first two devises, and the word “north” before the word “west” in the third devise, should be stricken out. If that had been done and nothing substituted there would have remained no description of the lands which they alleged the testator intended to devise to them, respectively. Evidence that the testator did not own the lands devised did not tend to show a latent ambiguity or affect the accuracy of the certain and definite description of the will which described lands in existence. It only tended to show mistakes of the testator in making the will, and a mistake is not a latent ambiguity. The mistakes, inaccuracies or deficiencies of a will cannot be corrected by extrinsic evidence, and parol evidence can not be adduced either to add to, contradict or explain the contents of a will. “No principle connected with the law of wills is more firmly established or more familiar in its application than this.” (1 Jarman on Wills,—6th ed.— 412.) The chancellor, by the decree, struck out the letters “N. W.” in the first two devises and the word “northwest” in the third devise, and when that had been done there was no remaining description of any tract of land, . by number of acres or otherwise. To complete .either description, so as to definitely describe lands owned by the testator and which it was alleged he intended to devise, it became necessary not only to strike out letters and words but to insert others in their places, and this the chancellor did. Not only were the letters “N. W.” in the first two devises struck out but the letters “N. E.” were inserted in their place, and when the word “north-west” was struck out in the third devise the word “south-west” was inserted in lieu thereof, which were the same changes, in effect, as were proposed by the answers. This was nothing but reformation for the purpose of correcting mistakes of the testator and making the will correspond with his intention, based on the fact that he did not own the lands devised. That such a change in a deed, contract or instrument other than a will, to make it conform to the intention of the maker, would be a reformation has never been questioned, and we do not see how it can be called anything different in case of a will. The changes made to correct mistakes of the testator in describing his lands had the effect to make lands pass to the devisees without a will in writing, which the law says can only pass by 'a will in writing executed and witnessed in the manner prescribed by the statute.

The decree is reversed and the cause is remanded to the circuit court, with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.