In Re Hoisington's Estate , 67 S.D. 280 ( 1940 )

Appellant strenuously urges that the court is prohibited from reading into the will by aid of extrinsic evidence matter foreign thereto which is patently erroneous as to the devisees or the property devised and that the court ought not to make the testator's will the instrument itself being clear and concise both as to its terms and as to the disposition of her property. Further that one cannot point out any proposition upon the face of the instrument showing any defect in form or thought. That the rule of law permitting the admission of extrinsic evidence to clarify on the ground of a latent ambiguity does not apply.

I do not believe that there is any uncertainty in the wording of the two clauses in the will. The meaning in the third clause leaves no room for doubt that she intended to give to the devisee therein named Lot Six of Block Thirty-Four of Bryson's Addition no more no less. No reference therein is made to a home or a house. The entire clause is closed up by "* * * hereby transfer to said Louisa A. Spencer a fee simple title in said described real estate." The description, according to the record before us is definite and certain. Under well established authorities to add anything further to this clause by way of extrinsic testimony would mean the rewriting of the clause, making a new will for the testatrix and making an oral will instead of one in writing as provided for by § 613, R.C. 1919 [SDC 56.0210]. The admission of extrinsic testimony was quite thoroughly covered by this Court in Rock et al. v. Zimmermann, 25 S.D. 237, 126 N.W. 265. I shall not attempt to quote from this decision but the reading of it leaves no room for doubt that under the various Code sections relating to the making of a will and the interpretation thereof, parol testimony, such as offered in the record in this case, cannot be admitted upon any theory.

I believe in the wholesomeness of the rule, supported by abundant authority, which reads as follows: "* * * the rule that direct evidence to prove the intention of the testator should be excluded, unless there appears to be a latent ambiguity, should be applied with some strictness. In the absence of such latent ambiguity the declarations of the testator cannot be proved by the scrivener who drew the will to show that the will does not accord with the instructions given." Jones on Evidence, 3d Ed., § 480, p. 744.

Extrinsic evidence as to the intention of the testator, whether circumstantial or otherwise, is admissible only when there is ambiguity or uncertainty upon the face of the will. The intentions of the testator must be expressed in conformity with the law and must be gathered from the intention expressed in the will. Such evidence cannot be resorted to for the purpose of showing actual intention in the mind of the testator different from the intention expressed by the context of the will and clearly the testimony of the scrivener is not at all in harmony with what the testatrix said above her signature in writing. In re Hurley's Estate, 61 S.D. 233, 248 N.W. 194, 94 A.L.R. 13; see note page 26; Napier v. Little et al., 137 Ga. 242, 73 S.E. 3, 38 L.R.A., N.S., 91, Ann. Cas. 1913A, 1013.

I do not believe that the will involved is so indefinite, uncertain, doubtful or ambiguous that it can be said that it is manifest that she desired to give the respondent the two lots containing the home from the language of the will. I prefer to follow and adhere to the rule that the intentions of the testatrix, which courts will carry into effect, is that expressed by the language of the will and that it will not be permitted to import into the will an intention different from that expressed by its language, however clearly such different intention may be made to appear. "The intention of the testator as expressed by the will being clear and unambiguous, the law must give effect thereto, and it is not material whether the intention thus definitely expressed in the will duly executed does or does not accord with the intention which may have existed in the mind of the testator, nor is it material that testator, subsequent to the execution of the will, may have entertained the opinion in his own mind that he had expressed a different intention in the will." In re Hurley's Estate, supra [61 S.D. 233, 248 N.W. 196, 94 A.L.R. 13]; Hill-Taylor Co. v. Shade et al., 57 S.D. 357, 232 N.W. 89; In re Walsh's Estate, 59 S.D. 277, 239 N.W. 240; In re Gray's Estate,27 N.D. 417, 146 N.W. 722, L.R.A. 1917A, 611; In re Griffiths' Will, 172 Wis. 630, 179 N.W. 768; Currie and Naylor Executors of Jacob Odom v. P.R. Murphy et al., 35 Miss. 473; Lillibridge's Estate, 221 Pa. 5, 69 A. 1121, 128 Am. St. Rep. 723; In re Young's Estate, 123 Cal. 337, 55 P. 1011; Succession of Henry,158 La. 516, 104 So. 310; Wooding v. Williams, 110 Neb. 651, 194 N.W. 791.

The testatrix was conscious of the fact that she had other real property than that mentioned in the third clause when in the residuary or fourth clause she made mention of the remainder of her property real or personal. To me it shows clearly that the testatrix was intending by such clause to dispose of the balance of her real estate to her grandson, Wallace Hoisington, pursuant to § 658 R.C. 1919 [SDC 56.0316]. Rock et al. v. Zimmermann et al., supra; In re Kahoutek's Estate, 39 N.D. 215, 166 N.W. 816.

It seems to be a well settled rule of law that it is not within the province of the court to say in examining the terms of a will what the testatrix intended but what is the meaning to be given to the language that she used. Courts, therefore, adopted the rule that in the construction of a will the court must stand by the words used therein and, therefore, it is not what the testatrix meant but what her words mean. The testatrix's intention must, therefore, be discovered primarily from the language of the will and you cannot extract the testatrix's intention from outside of the four corners of the will.

The legal description in the third paragraph is clear and concise. The draftsman was skilled in the understanding of words as he was a lawyer of experience and, therefore, undoubtedly used the phrase, "together with all improvements, hereditaments and appurtenances thereto attached or otherwise appertaining," advisedly and knowingly and did not mean to convey the adjoining lot. I can well imagine that if he had included the adjoining lot by its legal description in said paragraph the same stock phrase would have been used. I, therefore, attach little importance to this phraseology and do not believe that a court ought to, by virtue of such language, say that the testatrix intended to part with more property than that contained in the legal description. To say by the using of the word "appurtenance" in the will that the testatrix meant to devise other and further property than that embraced within the legal description, in my mind amounts to writing a will and one might say to include property which the testatrix did not wish to dispose of in this clause but did dispose of in the residuary clause and amounts to making a will, at least, through interpretation. It may be said that justice requires a court to go that far but justice might require that we should not deprive the residuary legatee from the property that has been devised to him by the testatrix in the residuary clause.

I am strongly impressed that the legal description used by the testatrix contains no error but is a perfect description which description, undoubtedly, was obtained from the survey of the property and is, therefore, in the same class as though the property had been described by metes and bounds and even though the word "appurtenance" is used it could not bring in other property beyond the property line of the survey in obtaining the legal description. It seems to be the general holding that Where the term "appurtenance," as used in conveyance, passes nothing but the land, and such things as belong thereto, and are part of the realty. Therefore, when a conveyance is of a piece of land, defined by boundaries with "appurtenances" other land not included in the boundaries will not pass as appurtenant to the grant. All that can be claimed as embraced in the word "appurtenance" are easements and servitudes necessary to the enjoyment of the land conveyed. Snoddy v. Bolen, 122 Mo. 479, 24 S.W. 142, 144, 25 S.W. 932, 24 L.R.A. 507; Hoboken Land Improvement Co. v. Kerrigan, 31 N.J.L. 13-16, 2 Vroom 13-16.

That the intent of the testatrix must be determined from the language of the will seems to be the general rule. A very interesting case in this connectoin is that of Brown v. Loomis, 119 Cal.App. 195, 6 P.2d 319, relating to descriptions of real property devised to one of the devisees.

It is not necessary in the instant case to create and give additional property by implication, to sustain this will, which the trial court by its decree attempted to accomplish. Estates by implication are not favored in law and it is not necessary in this case to carry out by implication the intent of the testatrix to prevent the will from failure as it is valid in every way on its face. Courts will not imply a devise. See, Allen et al, v. Morrill et al., 129 Cal.App. 347, 18 P.2d 773, and citations therein quoted from.

In re Kline's Estate, 138 Cal.App. 514, 32 P.2d 677-680, the court delved into the intentions of a testator and what he may have had in mind as follows:

"It may be that the testator probably thought that what he had in mind was to create that which in the law constituted a charitable trust; but the estate of the testator is bound by the specific and express directions contained in the testator's will, rather than by inconsistent references or `side remarks' interspersed therein. Taylor v. Keep, 2 Ill. App. [368], 381; In re Sutro's Estate, 155 Cal.. [727], 730, 102 P. 920; Estate of Walkerly, 108 Cal. 627, 41 P. 772, 49 Am. St. Rep. 97; In re Vance's Estate, 118 Cal.App. 163, 4 P.2d 977.

"In Estate of Doane, 190 Cal. 412, 415, 213 P. 53, 54, it is said: `The decedent having made an invalid provision in clear, unequivocal language, the courts are without power to alter that language to express what may have been in the testator's mind but was not attempted to be expressed by him, however beneficient such unexpressed intent may have been. "It may be said of all wills, that the testator's intent is to make a valid disposition of his property. * * * But a court is not therefore authorized to modify or vary the plain language of the testator, and thus create a new and valid will for him, even if it were certain that the testator would have adopted the interpretation of the court, had he known his own attempt was invalid." Estate of Walkerly, supra, 108 Cal. 627, 659, 41 P. 772, 780, 49 Am. St. Rep. 97'."

The language that follows the legal description in the instant case and in which the word "appurtenance" appears can well be said to be a "side remark" and I do not feel that we should add additional real property to the accurate legal description contained in the will.

The intent of the testatrix must be gathered from the language of the will and parol evidence of the testatrix's intent separate and apart therefrom is not admissible. Dahmer v. Wensler,350 Ill. 23, 182 N.E. 799, 94 A.L.R. 1, and see note at page 65 thereof relating to correcting mistakes or supplying omissions holding that it is well settled that equity will not reform a will because of mistakes or omissions and reformation will not be granted under the guise of construction. 28 R.C.L. Wills, § 164. The court erred in permitting the scrivener or draftsman to testify as to his own and testatrix's intention as it was incompetent to show an intention on the part of the testatrix different from that expressed in the will. Napier v. Little, supra, and see note in 38 L.R.A., N.S., 91. Defreese v. Lake et al., 109 Mich. 415, 67 N.W. 505, 32 L.R.A. 744, 63 Am. St. Rep. 584.

Parol evidence is not admissible to show the intention of a grantor as to the character of an instrument which is plain and unambiguous so that its meaning can be ascertained from reading it. Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5.

For all of the foregoing reasons I believe the order and judgment appealed from should be reversed.