Thomson v. Thomson

21 S.W. 1085, 115 Mo. 56, 1893 Mo. LEXIS 37
CourtSupreme Court of Missouri
DecidedMarch 20, 1893
StatusPublished
Cited by22 cases

This text of 21 S.W. 1085 (Thomson v. Thomson) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomson v. Thomson, 21 S.W. 1085, 115 Mo. 56, 1893 Mo. LEXIS 37 (Mo. 1893).

Opinions

Sherwood, J.

I. The rule in regard to descriptions of land in a deed or will is that where general words are used in describing the property conveyed or devised, .and such general description is followed by one [64]*64more particular, that in such case the general description shall prevail over the particular. Thus in Rutherford v. Tracy, 48 Mo. 325, a conveyance was made of a certain lot in a certain block, and superadded to that were words of a particular description, which actually embraced a less area than the lot mentioned; but .this court applying the familiar rule just stated rejected the particular description as repugnant to the general intention. As shown in that case by Wag-nek, J., this is the prevalent rule and not confined to any class of intruments.

In Greenleaf’s Cruise on Real Property, the point is thus expressed: “The modern rule is to give effect to the whole and every part of the instrument, whether it be a will or a deed, or other contract; to ascertain the general intention, and permit it, if agreeably to law, whether expressed first or last to overrule the particular ; and to transpose the words wherever it is necessary in order to carry the general intention plainly manifested into effect.” 4. Greenleaf’s Cruise on Real Property, ch. 12, sec. 26, note 1, and cases cited.

In Lodge’s Lessee v. Lee, 6 Cranch, 237, the description was “all that tract or upper island of land called ‘Eden,’ ” and then it was added, “beginning at a bounded maple,” and déscribing the land conveyed by bounds, courses and distances, but so as not to include all the island.' The court held that the whole island passed.

In Keith v. Reynolds, 3 Greenleaf, 393, the description was, “a certain tract of land or farm lying in Wins-low, it being included in that tract which was granted’ ’ to Esq. Pattee, and afterwards there was added a particular description of courses and distances, which did not include the whole farm. It was contended that the particular description should prevail in- preference to the other, which was more general and uncertain; [65]*65but it was decided that the first description was certain enough, and that it was to be adopted rather than the description by courses and distances, which was more liable to errors and mistakes.

In Jackson v. Barringer, 15 Johns. 471, the grant was, “the farm on which J. J. D. now lives,” which was bounded on three sides, and “to contain eighty acres in one piece.” The farm contained one hundred and forty-nine acres, and the decision was that the whole farm passed.

Now in the present instance, the words of general description are: “The tract of land on which I now live,” followed by words of particular description. Under the rule stated, it would seem that there should be no difficulty if any conflict should arise between the general and the particular descriptions, to retain and uphold the former and reject the latter. 1 Jarman on Wills [6 Ed.] 481.

In this case there is evidence identifying the “X” forty as part and parcel of the home place or tract on which the testator resided at the time his will was executed and at his death. Fowler, a brother-in-law of Thomson, plaintiff, and of defendant, a disinterested witness, states that that forty was fenced in with the other land, i. <?., the home tract, by a fence which commenced at the Lexington road and ran around from that point on the west and north sides of the forty up to the southeast corner of Ham’s land, and was under the widow’s control all the time until her death; and Fowler was in a position to know, for he for some years had the place in cultivation, and there was other testimony of like import.

As before remarked, it was a conceded fact at the trial that the rest of the land except the “X” forty constituted the home tract, and parol evidence was obviously [66]*66competent to identify the home tract, to show what were its boundaries and how the testator regarded the matter. Abbott’s Trial Evidence, 144; 1 Jarman on Wills [6 Ed.] 431, 432, 433, and cases cited; Wigram on Wills, 142; Taylor v. Boggs, 20 Ohio St. 516. This point is well illustrated in Sanford v. Raikes, 1 Mer. 646, where Sir William Grant in discussing the admissibility of extrinsic evidence in such cases observed: “I had always understood that, where the subject of a devise was described by reference to some extrinsic fact, it was not merely competent but necessary to admit extrinsic evidence to ascertain the fact and through that medium to ascertain the subject of the devise. * * * Here the question is not upon the devise but upon the subject of it. Nothing is offered in explanation of the will or in addition to it. The evidence is only to ascertain what is included in the description which the testator has given of the thing ■ devised. Where there is a devise of the estate purchased of A, or of the farm in the' occupation of B, nobody can tell what is given until it is shown by extrinsic evidence what estate it was that was purchased of A or what was ■ in the occupation of B. ” '

The fact that hundreds of acres of land were owned by the testator contiguous to his home tract, should not have the effect to destroy the probative force of evidence showing what the boundaries of the home tract were.

II. When the extrinsic evidence was introduced in this case to show the boundaries of the tract on which the testator resided, the controversy became centered alone on the“X” forty. The evidence thus properly introduced disclosed this state of facts: That by following the literal words of the will, and running the western boundary of the home tract as indicated by the dotted lines, the public road would not be reached by [67]*67exactly one quarter of a mile, nor would such dotted line go south with that road as required by the exact words of the will; but that if the words in parentheses were added to the description so that on reaching the southeast corner of Ham’s land the course would be “thence west one quarter of a mile,” no difficulty would be experienced in following the west line of the disputed forty, “thence south one quarter of a mile, thence west •one half quarter of a mile to the Lexington and' Glasgow road, thence south with said road one quarter of a mile, ’ ’ etc. It is true the distance bf the last call is an error, but it is an error common to both descriptions, and it is true also that the dotted line could be extended west by legal implication one quarter of a mile in order to strike the Lexington and Glasgow road, but this would be the case even if that road were ten miles distant.

It would seem plain from the circumstances already set forth that an error in fact had occurred in the description of the lines in question; an error so palpable as to authorize the supplying by intendment of the evidently missing words, “thence west one quarter of a mile.” Supplying these words all difficulty vanishes and all discrepancy ceases, except the one call after the Lexington and Glasgow road is reached, to-wit, “thence south with said road one quarter of a mile;” but the extra half quarter of a mile can be exscinded by applying two legal principles, one the maxim of falsa demonstratio, etc.; the other in. regard to monuments controlling rather than distances.

In relation to supplying words where it is obvious that from the words used and the .general tenor and context of the instrument that certain words or their substance has been omitted, such words may be supplied by construction.

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Bluebook (online)
21 S.W. 1085, 115 Mo. 56, 1893 Mo. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomson-v-thomson-mo-1893.