Morton v. Calvin , 164 S.W. 420 ( 1914 )

The objections urged to the judgment in the brief filed by appellant Miss Mattie Morton are not the same as those urged to it in the brief filed by appellants Mrs. Ellen Reynolds and her husband. We will first consider questions made by assignments in the brief of Miss Morton, and in doing so will refer to her as "appellant."

Appellant insists the court erred in finding that William Morton devised the land in controversy to Ellen Reynolds, "because," she says, quoting from the brief, "the undisputed evidence shows that it was the intention of the said William Morton to not give the said land to Ellen Reynolds, but to give it to Mattie Morton and Annie Morton."

If the evidence appellant refers to is that furnished by the language used by the testator in his will, clearly she has misconstrued the meaning of that language, for it not only does not show the intention of the testator to have been to give the land to her and her sister Annie, but, on the contrary, shows his intention to have been to give it to Ellen Reynolds. The testator owned on the Nathan Screws survey only the tracts of 17, 15, 41, and 284 acres, respectively, referred to in the statement above. In plain language he gave to appellant and her sister Annie the 17 and 15 acre tracts, and in as plain language he gave to Ellen Reynolds 325 acres, or the sum of the other two tracts.

If the evidence referred to in the assignment is the parol testimony heard on the trial, then, to determine whether the contention should be sustained or not, it is necessary to look to the record to see what that testimony was, and then to inquire whether it was testimony the court was authorized to consider for the purpose of determining the intention of the testator.

It was shown that the testator claimed he had acquired title to the 41 acres from one Berry, and that he had had possession of it, cultivating and using it as his own during the 35 or 40 years immediately preceding his death. It was also shown that he regarded it as a part of his homestead or "home place." A few days before his death he had the witness Ras Young, a lawyer, to come to his home, where he was sick, for the purpose of preparing the will in question. He then stated to Young, as he had previously to other persons who testified, that he wished appellant and her sister Annie "to have the home place, so that they would not be interfered with at all in their occupancy or use of that." He further stated to said Young that he wished to give to his daughter Ellen Reynolds the land "he brought from Geo. Foster that lay north of the home place." Young did not remember whether the testator, at the time he expressed his wish with reference to the devise to said Ellen Reynolds, said anything about the number of acres in the tract he mentioned as one he bought from Geo. Foster or not, but thought he did not, and that in writing the will he (Young), in stating the number of acres in the tract, followed the recital, as to quantity, contained in the deed from Geo. Foster to the testator's deceased wife, which was placed in his hands by members of the testator's family for use by him (Young) in drafting the will. In the deed from Geo. Foster referred to the land thereby conveyed was described as 325 acres of the Nathan Screws survey, and by metes and bounds, which embraced both the 41 acres in controversy and the 284-acre tract hereinbefore referred to.

The testimony recited above and that furnished by the will itself is about all, if not all, there is in the record which can be said to have a bearing on the question as to the disposition the testator intended to make of the land in controversy. As we have seen, looking to the language of the will alone, the intention of the testator clearly was to give the land to Mrs. Reynolds, and not to appellant and her sister Annie. Assuming that the other testimony recited established his intention to be to the contrary (that is, to be to give the land to appellant and her said sister, instead of to Mrs. Reynolds), then the question to be determined is this: Should the court have given effect to the intention of the testator evidenced by the language used by him in the will, or should it have given effect to his intention as shown by the parol testimony heard?

In the light of the authorities, we think the only answer to be made to the question is that the court was bound to give effect to the intention of the testator evidenced by the language used in the will. The rule has been thus stated: "That parol evidence is not admissible to add to, vary, or contradict the words of a written will, not only because the will itself is the best evidence of the testator's intention, but also because wills are required by the statute of frauds to be in writing." 30 A. E. Enc. of Law, p. 673. Discussing the rule and the qualifications to which it is subject, the author of the article in the work cited says: "Where the will contains a latent ambiguity, or its language is uncertain or indefinite, it is a firmly established rule that parol evidence is admissible to show the facts and circumstances that surrounded the testator at the time of the execution of the will, such as the condition and situation of his property and family, so that the court may be placed as nearly as possible in his position, and thus arrive at his intention; but, when the words of the will are plain and unambiguous, such evidence is inadmissible. Although collateral aids, such as a view of the situation and circumstances surrounding the testator, are often necessary to enable a court to see things as he saw them, and to apply his language as he understood and intended it, yet the will must speak for itself, and the intention of the testator must be gathered from what appears on its face. To allow the natural import of the words thus ascertained to be varied or contradicted, or omissions supplied, or apparent ambiguities removed, or intention supplied by parol evidence, would be to repeal the law requiring a will to be in writing and to introduce all the uncertainty, fraud, and perjury the statutes were designed to prevent." 30 A. E. Enc. of Law, pp. 676 to 678; 2 Underhill on Wills, § 908 et seq.; Hunt v. White, 24 Tex. 643; Peet v. Ry. Co., 70 Tex. 527, 8 S.W. 203.

The case-made clearly is not one of a latent ambiguity appearing in the will, when considered with reference to the property devised. The bequest to appellant and her sister Annie of land on the Nathan Screws survey was, as has been stated, of the 17 and 15 acre tracts alone. The bequest to Mrs. Reynolds was of the 325 acres on that survey "purchased in one block from Geo. Foster." It appeared that the testator, or his deceased wife, whose estate he was disposing of with his own, had purchased of Geo. Foster "in one block" 325 acres of the Screws survey. It may be that at the time this purchase was made the testator owned 41 acres (the land in controversy) of the 325 acres, but we think the fact that he did was of no importance, for nevertheless, as shown by the deed from Foster, he, or his said wife, purchased same as a part of the 325 acres, and "in one block." So, it appearing that the 325 acres, the only land owned by the testator or his wife on the Screws survey not otherwise disposed of by the will, answered in all respects the description of the tract devised by the will to Mrs. Reynolds.

The case-made, instead of presenting a latent ambiguity in the will which could be explained by a resort to the parol testimony, presented one in which it may have appeared from the parol testimony that the testator, as the result of a mistake, devised the land in controversy to his daughter Ellen, when he intended to devise same to appellant and her sister Annie. It is well settled that, unless the mistake is one apparent on the face of the will, courts are powerless to grant relief against it; and that "omissions in a will, though due to accident or mistake, cannot be supplied by parol proof of intention." 30 A. E. Enc. Law, p. 680; Underhill on Wills, § 912; Hunt v. White, 24 Tex. 652. In the section cited in Underhill on Wills it is said: "Parol evidence is never receivable to supply single words or clauses where the omission is not apparent on a reading of the will. Thus it cannot be shown by parol that the testator stated that he would give or had given a legacy to a person whose name is not mentioned, or that the draughtsman of the will had forgotten to insert a legacy which the testator meant to give; nor can the amount of a legacy precisely stated be increased or diminished by parol evidence, no matter how clear and convincing such evidence may be. * * * Under the rule that parol evidence cannot be employed to vary or add to a will, it is incompetent to show by the declarations of the testator or other intrinsic evidence that the testator has by his own mistake or that of some other person given a legacy of less value or of a different character from that which he in fact actually meant to give. Thus, where the testator owned land in A. county, and also in B. county, both of which he intended to devise to his wife, but, as was conclusively proved, the description of the land in B. was inadvertently stricken out in copying the will, parol evidence was rejected, though it appeared that the final copy of the will had never been read to the testator, and that the original draft in his own hand included the property in B. county. In another case $10,000 was directed to be divided equally between A. and B. The draughtsman drew two clauses, in each of which, by his mistake, $10,000 was given to A. The name of B. was wholly omitted from the draft and also from the engrossment, and the will was executed with the mistake uncorrected. The name of A. was stricken out of one of the clauses by the court, as the error was apparent upon the face of the will. But the name of B. could not be inserted on parol evidence to give him a legacy not given by the will."

It thus appearing that the effect of the will was to pass the title to the land in controversy to Mrs. Reynolds, and not to appellant and her sister Annie, it follows that the judgment, so far as it is in favor of Calvin against appellant, must be affirmed. For it is clear that the title so vested in Mrs. Reynolds never passed from her until it was conveyed by her and her husband to Calvin. The mere fact that she did not know that the land had been devised to her, and treated appellant and her sister Annie as the owners thereof, would not operate to transfer the title to them. The title of a married woman to land belonging to her separate estate cannot be passed in that way. Article 1114, R.S. 1911.

The objection and only one urged by appellants Reynolds and his wife to the judgment is that it should not have been against them either for the land or for any of the costs, because Calvin did not sue them for the land, but on their warranty of the title thereto. The argument is that as Calvin recovered the land of appellant Miss Mattie Morton, the only person he sued therefor, he was not entitled to recover and did not on the warranty, and therefore that judgment should have been that he take nothing as against Reynolds and wife, and that they recover costs of him. It is further urged that as to Mrs. Reynolds the judgment against her for costs was unauthorized, if for no other reason, because she was a married woman. In making the contention, said appellants, Reynolds and his wife, seem to have overlooked the fact that the land belonged to Mrs. Reynolds' separate estate, and that in their answer they asked for a rescission of the contract of sale between them and Calvin, praying that the title to same be decreed to be in them. They thus in effect became plaintiffs in a suit against Calvin to rescind the sale made to him and to recover the land. They failed in this suit, and clearly were liable for the costs thereby incurred. Therefore the assignments urged by them are overruled.

There is no error in the judgment, and it is affirmed.