*1 SupReme [April Term, 317. Vol. af- result, judgment its right The trial court reached Ellison, CC., Seddon and concur. firmed. adopted The foregoing C., is opinion PER CURIAM Lindsay, by except concur, opinion judges of
as the of court. All Gantt, J., sitting. Riley Josephine S. Appellant
William H. et. al. 296 401.W. One, Division June 1927. Ambiguity: reading Extrinsic If will 1. WILL: Evidence. from a of his intention, uncertainty facts arises as to the testator’s true extrinsic doubt therein, explain language re- used and circumstances gardless are admissible ambiguity, patent the nature or latent. Such of whether it be interpret if facts will the court to understand the will as as enable living testator were are admissible. 2.-: requires Middle Name or Initial Devisee. No rule of law of this State interpretation ignore disregard the courts of wills to middle name or initial William N. Bond the testator a named devisee. court cannot rule that H. extrinsic facts meant William unless and circumstances disclose that used middle initial “N” testator mistake, designedly. and not Contradictory possible, -: 3. Clauses. If with the tes- accordance intention, general in- tator’s will should so as construed to harmonize repugnant clauses, them, consistent and to effect to each of entirely contradictory prevail where clauses are two clause should nearly appears express gathered most the intention from the rest of the will. Presumption against. Intestacy. interpreting 4. -: always a will courts presumption dispose start intended to estate, against presumption partial intestacy whole will, and the where whole, complete as a indicates the intent of the testator a dis- to make position property, prevent incongruous the reason passing partly by partly situation the estate will and descent. -: -: grandson Pretermitited Heir. That should pretermitted descent apparent pur- heir is not in accord with pose dispose property by of all of his Ambiguity: Explanation -: 6. a Latent description Scrivener. If a person intended, devisee raises a doubt as to what was and a consideration surrounding of the cuted facts circumstances the testator at the time exe- grandsons still leaves doubt as to which of two intended devisee of real paragraph, estate described in a certain the testi- mony of the scrivener as to the declarations of the testator’s are intentions purpose admissible for the explaining ambiguity. the latent Explanation 7. -:-: Testator’s Declarations: of Intentions. Dec- larations purpose never admissible for the of establish- contrary clearly expressed an intention to that ad- but are aid ambiguous missible in inaccurately an elucidation expressed of an Biley. BoNd v. 1927] description appearing of a devisee the face on of the will. Where there person answering “my grandson,
no living Bond” twenty-five at the time was executed and had not been for years, evidence of the testator’s declared intentions is admissible as grandsons aid to a determination of which of two was the intended devisee. *2 Ambiguity: 8. WILL: Explanation Latent Testator’s Declarations: Intentions: Grandson Described Name: Father's Correction. In paragraph Bond, “having fourth Newton declared that here- my my estate, tofore advanced son John C. Bond his share of will;” plaintiff, heirs shall take more under this and the Wil- liam H. was one of such heirs. the fifth the tes- gave my grandson, accurately tator “to William N. Bond” certain de- scribed real estate. The extrinsic evidence showed that testator had no grandson name, named had a son that who twenty-five years, had been dead for made a son of said son named at the time the was Boyd Bond, C. who was not named in the living long Held, first, that, was with testator and had for a been time. although only grand- the testator at the time the will was drawn had plaintiff, son whose first name was William and he was the he, being William H. clearly an heir para- of John C. excluded the fourth graph. Held, second, that have testimony that the of the scrivener who wrote the will grandson, testator said that he “wanted his William’s property;” grandson’s that he understood the name was Newton, (testator); “William of on his named after him” that it was the fifth clause provide the will which the meant grandson; for this pencil go “my draft grandson, he wrote that this was to thought William “William lived with and the grandson’s N.” that he at the time that this name was N.”; grandson intended was the one at who the time Boyd whose name he Bond; later learned was testimony always of the executor Boyd .referred boy” C. Bond boy as “Bill’s and said he wanted “Bill’s to share in his estate,” William N. competent explain ambiguous description “my Bond,” and to authorize a correction of the to read “my grandson, Boyd C. Bond.” Corpus Juris-Cyc. Names, Cyc., p. References: 269, Wills, 29 n. 41. 40 p. Cyc., p. 1388, 90; p. 1393, 17; p. 1394, 24; p. n. 1409, 4; n. 1416, n. n. n. p. 35, 36; p. 1429, 13; n. n. 36.
Appeal from Ozark Circuit Stewart, Court. —Bon. Judge. Fred Affirmed. T). James, MeOruder,
S. W. A. Mark E. Morrow and M. appellant. Roberts
(1) A From meaning testator’s alone. is to be found in his will the will lan- itself we must if the learn the testator’s intent. But guage employed meaning susceptible is of doubtful of two of either feeling constructions evidence as to the condition - persons toward the competent affected the will is as it tends put in possession the court of the facts as testator viewed them helus passages. Yeld, r^rdain Yon the doubtful Hurst v. De ¡April Term, 317. SupRbmb Missouri, Yol.
596 Toler, 179 112; Snyder v. 113 Mo. 239;-Murphy Carlin, 158 v. Mo. for testator. a will will not make (2) The court App. Mo. 381. words from all its gathered duty his intention Its is to ascertain get- intention; and in to that corners, effect its and to four may puts itself nearly as court as ting intention, perspective looks with his in his shoes and environment, stands v. Me- 615; Mo. Sanitarium Jones, through eyes. v. Stewart .219 369. May, v. 201 Mo. 338; Trustees Cune, App. 112 Mo. ascertain will the court must of a that in the construction doctrines firmly estab- itself, is so from the whole testator’s intention elementary almost an State, as to become by the courts of this lished 627; Frey, 234 Armour v. Layton, v. Mo. of law. Dameron principle 401; Lich, App. 153 Mo. Matthew's v. Yan Cleave. 646; Lich v. Mo. 369; v. 197 Mo. 19; May, Perry, v. Mo. Grace 282 Mo. Trustees 476; Wright, App. v. 116 Mo. 559; Brooks, 187 Mo. Metz Brooks portrayal (4) Explanatory should be restricted to the evidence feeling persons and his towards af- of the testator environment declarations fected, and should not include have made concern- *3 employed in interpretation words the wall at his direction. his would b© to violate Such declarations the rule that “a testator’s A meaning is to in his will be found alone.” formal will -would be practical contradicted, explained by little if it could be varied or value proof Snyder of such Toler, declarations of the testator. 179 App.-381; Hayden, Alleged Mo. Webb v. 46.Mo. declarations of testator made after the execution of incompetent the -will are in a. suit will. to construe the
SEDDON, C. -Suit in ecpiity, brought in the Circuit Court of County by Howell plaintiff, grandson William H. Bond, who is a Bond, deceased, Newton asking a construction of the will of Newton Bond, duly probated -which was in the Probate Court of Howell County July 3, on 1922. The suit was transferred to the Circuit County upon change of Ozark of venue. Omitting the formal parts of paragraphs the several or clauses thereof are as follows: my just "First. All debts, including expenses funeral shall be
paid. having "Second. I my heretofore to daughter, Jose- advanced phine Riley,-her my estate, share of she shall nothing take more under this will. ‘‘ having I Third. heretofore my advanced to Carroll Bond, J. my estate, share of he shall take more under this will. having "Fourth. -I heretofore advanced my tó son, John .C. my share estate, his heirs shall take nothing more under this Ridey. 1927 \ Bond v. Bond, lot bequeath my son, (3) give
“Fifth. I Plains, Howell City original of West twenty-seven in two block any mort- subject the-payment Missouri, County and State of my death. may property at gage on said or incumbrance that be N. (2) my grandson, William bequeath I give and “Fifth. ten hundred and in the west one an undivided half interest original town, now twenty-seven feet lot in block one subject Missouri, City County State of Plains, in Ilowell West may on mortgage incumbrance payment any my property said at death. Haynes Ellen bequeath my daughters, T
“Sixth. west hun- Arnett, half interest in the Annie the one undivided twenty-seven original dred and feet in block ten of lot one Plains, town, City County of Mis- in Howell and'State now West souri, subject any mortgage payment or incumbrance that property my be on said death. my my request It hereinafter
“Seventh. executor named charge buildings Twenty- in Block Two, on Lots One and buildings seven, advantage rent said to the best such time as profits pay lots, the rents and off said incumbrance on when fully paid, my incumbrances placed me on said lots are said property parties executor shall deliver said herein named my devisees, keep improvements said up pay executor to property pos- taxes out of the rents said from while same is session.
“Eighth. my (other Whatever remains of than estate named), paying just ex my hereinbefore after debts funeral penses, I give my and bequeath mother, son,1William Bond, in equal Perlina shares. hereby
“Ninth. I appoint W. W. Plains, Toler of West my Executor of this last and testament.”
Plaintiff is a son of John C. who is named *4 “Fourth” will. John C. Bond was a son of the testator marriage predeceased first father; Bond, Newton prior children, making leaving of the will, a widow and five including plaintiff, surviving. All of said five children of John C. Bond survived the Bond, Newton grandfather. their The testator had marriage another son Bond, fii-st William named N. predeceased who also testator, prior making' to the of said will. William N. Bond was son, Boyd survived Bond, who, C. course, grandson is a of testator. The record herein shows only grandson had bearing one the Christian “Wil- name liam,” grandson being plaintiff hei’ein, William 11. Bond. Paragraph (2)” “Fifth of the will describes as, devise Bond,” said paragraph “my grandson, AYilliam N. [April SupRbme Yol. “'William'’ name bearing the Christain grandson The had no ” Bond, son Boyd C. initial “N. The middle and the Newton ofwill for provided named or Bond,
William N. is not Bond, father, probated, nor is Bond as written and testa- therein testator, named or mentioned son of the by a son minor him a surviving also left tor’s son. The testator provided named Bond, who is marriage, named William second “Eighth” of (1)” and paragraphs.“Fifth for in appointed court probate Pursuant to the directions he sub- Bond, but Newton estate of W. W. Toler as executor of the with the estate administrator sequently resigned his offiee and court. probate by the in his stead appointed annexed several beneficiaries respectively, are, The defendants herein of his estate administrator named in the of Newton alleges petition Bond, the The testator. at law of Newton the heirs Bond Newton said conflicting to the estate of claims that there of testa- the administrator provisions of under the meaning as to doubt parties the suit are tor’s and the estate to enter a decree wherefore, is asked will; the court and terms of the and duties of the determining rights construing said will and parties thereunder. testator, namely, sons of testimony discloses that the two father of plaintiff, and N.
John C. father of years his will. Boyd the testator made died several before death, years residence, many prior to his place of The testator’s place Plains, city' left West of West Plains. Plaintiff young- grandfather, testator, when he was a residence of his years years age, prior to child and about fourteen about eleven making plaintiff, leaving record shows that after will. The Plains, grandfather, or visit his West had never returned to see had never at time in his life made his home with the testator. apparently testimony, plaintiff There was some offered for the for, purpose showing especial in, interest and affection plaintiff, very that, plaintiff young to the effect was a lad, while grandfather presents had plaintiff pecuniary made to some of small val- ue, consisting shoes, toys, knives, etc., grandfather but that the gifts upon plaintiff’s bestowed similar two brothers and two sisters. no Plaintiff, explaining good feeling and affectionate relation which during early boyhood existed between him and plaintiff’s the testa- tor, always buy testified: would “He me to town him and and, presents things, always me liked for and he me to be with him. I got remember time he me some little boots, when red get tops things. would me knives and Then he used to send me things (West away )j when we went from there Plains even after we Texas, went things him and! used to send sometimes.” *5 1927] Riley. Bond v. (cid:127)
R. tlie and one of the -attest Hogan, S. tlie.scrivener who wrote will testify, over tire ob- execution, permitted to witnesses to its was ‘ Bond? jections “Q. you Newton plaintiff, as follows: Did know Yes, 'Q. here? Yes, you question A. will in A. sir. Did write the Q. you request. A. At his sir. At it? request whose did write Q. Q. you Did it written? A. house. Where was At his I Yes, sir; down the terms of the will? A. he sent me draft; pencil went over and I took some notes and down typewritten. Q. you then had I the will will ask whether or not you if know Newton son Bond had a named Bond? Yes, Q. living A. sir. A. He Was he or dead at that time? Q. you was long dead. Do know he had been dead? about how twenty-five Q. A. years. any About Did N. Bond have Q. you A. Yes, children? Do A. son. know son’s name? his Yes, sir, Boyd Q. Boyd . C. Bond. . . Did with live grandfather? Q. A.' explain For some time. Now court to the about that statement of Bond Mr. about what he wanted [testator] you Boyd. will prepared reference What said? A. He called me down house, to the he up, was not able sit put he told me that he wanted me to the will that he didn’t want Riley Q. Mrs. anything already part. have as she had her had disputed part. Just tell about the A. Well, he said in reference to Boyd John did want him he or his heirs to have [Bond?] anything, already he had share; more than his then said he that he boy wanted the who lived with part him to have I estate. As time, understood his name at that his name was William Newton, Well, named . after him. . . he he said that wanted grandson, William’s property, have because he always lived there with g’ood him and had Q. been to him. That clause you where tried convey to draw Boyd C., William, the son of was that the clause in which he provide meant Q. for him? Yes, A. sir: you Do original pencil remember what the draft A. said? That it was to go ‘my Q. of William N.’ son yon What did boy’s think the name was at that time? you did What think his name I thought was? A. Q. it ivas William N. you What do know Boyd having about long lived for a time with Newton Bond? A. T know that he lived there for time, some I don’t know for how Q. long. Did he claim ? that for his home A. Yes, sir, for a num- years. ber of Plaintiff’s counsel.': I move the court that all of this testimony witness’s be stricken out which any way relates in to state- ments of Newton or to directions may have given, for the reason that and no other instrument, declares the intention Newton Bond. parol The testimony is inadmissible to contradict the By terms of the will. the court: ¡April *6 Vol. Missouri, SUPREME n excepts motion, to plaintiff counsel: Plaintiff’s is overruled. not the is this that claim Q. you Then court. ruling what he say is not it Q. You No, sir. A. will of Bond? Newton meant he not what respects? Well, A. wanted some sir, with Yes, A. made? will he Q. Is this respects. some This A. signed? he will Q. exceptions. this Is some acquainted you intimately were Q. How signed. . . . will he I his mother intimately; knew very Boyd A. Not Bond? with C. on, all boy, off married, saw the they were and father before IA. don’t there? left Q. when he was he How old of his life. Q. -About No, A. sir. ? is now Q. you know old he Do how
know. Q. long How years. thirty about judge A. I how old? should About, longer Q. than that? Not years. ten gone? A. has he been IA. think so.” don’t executor, al- -named in the Toler, William who was “Q. as follows: objections plaintiff, testify, over lowed to Q. Yes, Prior A. sir. you Bond? acquainted AYere with Newton any you conversa- have question, will in did this time he made Boyd to in his estate? wanting share with tion him relative to boy Bill’s name, said called that he A. I can’t remember he referring disposition Q. . . . all the time. him have? A. He said he intended say what did he property, wanted, stayed property; boy he said he with to have some had, stayed that Carroll helped him him most of what he make Q. him Who did he mean he said when the left. others when Q. say anything . . Did he Carroll? A. Bill. . He meant I boy having remember; with him? A. don’t I about this lived don’t know the children.” following evidence,
theAt close of-all the the trial court entered the finding judgment:
“Now 14th day on this of November, 1923, coming this cause on plaintiff heard, to be appears by attorney, in person and the de- attorneys, fendants appear ready their both sides announce trial; defendant, being minor, Bond, Hogan a R. S. appointed guardian him, represent ad litem to William Bond, said minor; guardian said filed ad litem herein his written consent act guardian, as such also filed his answer minor, and, on the of said it appearing to the court that of the other defendants been notified of pendency the commencement and by personal of this suit publication, service jury waived, the matters in con- troversy were court; submitted to the the court found the issues for .the defendants: found under fifth clause or paragraph of last said will of Newton deceased, that said will was read, give ‘I and bequeath my Boyd C. son of west, William N. an undivided half interest one hundred Riley. G01 Bond v. 1927\ original Twenty-seven Block in the ten feet Lot One County, and State town, City Plains, in Howell now of West mortgage incumbrance subject 'payment my on death.’ said by the court adjudged “It decreed ordered and therefore New- plaintiff under the last and testament of the last deceased; ton fifth clause or ‘I read, will of and be- the said Newton Bond should and does Bond, an queath my grandson, Boyd Bond, son of feet undivided half interest in the hundred and ten west one (110)^ City Twenty-seven original of Lot in Block town, One now *7 subject Plains, County Missouri, to the West Howell and State of payment any may gage prop- morí or be on said incumbrance that ” erty my death.’ unsuccessfully moving trial, plaintiff
After granted for a new appeal and allowed an court. to this
Appellant assigns testimony error in the admission of the of the witnesses, R. Hogan, William Toler S. the scrivener who wrote .and the He also claims judgment the decree or the trial disregards court the clear and intent 'expressed true of the testator as in his will and amounts to making by the court of a different will than that which the testator made Ambiguity. anrj which upon the court is called It construe. unquestionably the law, established by appellant, contended courts, whether trial appellate, cannot, by construction, make testator, will for province interpret their to ascertain therefrom true meaning intention and of the testa tor", substitute their notions for those of the testator as to the proper disposition of his objects estate and bounty. of his [Ro Brown, 447, Bards v. 367 Mo. Furthermore, the statute of 456.] (Sec. 193.9) this State 555, requires R. S. they of all courts that “shall have regard due to the directions of the will and the true intent meaning brought in all matters before them.” Such intent and meaning can best be ascertained putting court itself, so may be, far as place of the testator and reading the directions of the will in light environment at the lime he made the will. If the true intent and meaning of the clearly testator can be court, thus ascertained then all technical rules of way. construction must [Robards Brown, v. 167 457; Mo. Murphy l. c. Carlin, 117; v. 113 l.Mo. c. Hurst v. Veld, Von De 158 Mo. l. c. When, however, upon a 246.] reading of the will in its entirety, uncertainty doubt or arises as to the testator’s true intention, is the general then it rule that extrinsic facts and circumstances are admissible evidence to ex the language will, regardless plain of the nature of the am [April Yol. 317. CouRt'
602 SUPREME court every for in case patent latent, biguity, whether’it information of all the possession placed in is entitled to be family estate respecting the circumstances is available the court end to the he made at the time may in may be, nearly situation, as in the testator’s living". were [Mc if will as terpret understand the Darrah, Mo. 168 657; Willard v. Coy 650, Bradbury, Mo. v. 668; 56, 229 Mo. Jones, Cox v. 62.] upon statutory imposed mandate, therefore, Bearing mind, given to the directions regard shall be State, that due all courts of testator, and meaning of the intent will and the true (all-its sepa interpreter of a mindful of the rule that “the best (Cox Jones, considered) will itself” parts being rate to find Bond will of Newton 62), Mo. look first the entire l. c. we meaning of the testator. therefrom, possible, if the time intent clearly and indu will, the testator “Fourth” having advanced to bitably that, theretofore his intention manifests making of the had died before the John C. who Bond estate, of John therefore the heirs C. his share the testator’s Appellant, William will.” “shall more under this within hence falls PI. is a son and heir of John paragraph of his in the fourth the class of kin which bounty by clearly intent to from manifests the exclude positive “shall take noth that the of John C. Bond direction heirs *8 (2)” paragraph will.” In of the will more Under this “Fifth (under appellant which seeks the construction that is benefici ary intended), expresses therein named and the intent my give Bond,” N. in an undivided half “to city Appellant in certain real terest West Plains. that, is claims inasmuch shown evidence herein that only grandson appellant is of testator who bears the Christian “Bond,” description by name “William” and the surname beneficiary paragraph to take intended under “Fifth as, (2)” “my grandson, Bond,” only of the will can appellant person, refer to and to and no other hence there ambiguity paragraph seeking no in that clause or of the will. such paragraph will,'however, appellant construction would us-wholly disregard discard, and as a have mere mistake and insertion use the testator of the middle initial describing naming beneficiary “N.” in or intended to take under paragraph (2).” “Fifth' But early while we mindful are that the recognize not common law did a middle name or initial as a (19 an R. L. 1328), rule, the name of individual such as far as we applied principally find, exclusively seems have been and almost and informations in criminal proceedings, to indictments and Riley. Bond 1927} actions, civil in publication,
pleadings process, or orders of and of, initial middle name or in, a mistake or omission which matters (and appellant adjudicated case We find no was deemed immaterial. applied ease) the rule has been ns to no wherein has directed testamentary assume, a instrument. We under will or beneficiaries contrary disclose a therefore, unless facts and circumstances extrinsic initial “N.” the middle intent of the used attempt describing naming, designedly, mistake, and and ing- beneficiary him to name, describe paragraph (2)” under “Fifth of the will. assuming- paragraph (2)”
But the moment that “Fifth will, standing alone, can be said to manifest the intent testa appellant, tor that William H. to take who paragraph (as the devise appellant para said contends graph does), with, then find said we in conflict repugnant to, paragraph clearly “Fourth” which positively (in states that the of John heirs C. Bond which class of kin appellant falls) A “shall take this will.” cardi more under nal rule in the is that, possible, construction wills “if in accord general ance with intention, the testator’s the will should be so con strued as to harmonize repugnant pro inconsistent and clauses visions, give them, effect to each of clauses en where two tirely contradictory, prevail that clause should nearly which most appears gathered to be the intention the testator as from the rest (40 1416.) Cyc. the will.” .recognized Mr. Schouler, in his text (6 Ed.), pages on Wills vol. 1031-1035, states the rule of construc “'A tion thus-. will should carry be construed as whole out intention, testator’s parts compared should be read light others, in effort all parts, harmonize and his plan considered, whole every given word if possible. effect . . . The will should be so construed as to avoid inconsistencies and parts effect to all and repugnant provisions should be so preserve general construed as to intention. ... A later in a clause will must to affirm, contradict, be deemed not to an earlier clause, if such fairly construction can be given. here, The effort one, and a natural is to reconcile the parts instrument in all its disposition whole; make consistent for, in construing doubtful language interpretation preferred should be gives con *9 sistency to will, the whole rather than one which inconsistency. works . . . In short, a will is not to be read so itself, as to contradict if apparent its contradictions can by bringing be reconciled the various together, clauses and deducting interpretation consistent from the whole context.” “To interpret and to reconcile clause a of another, with that can be done without straining where the [April Missouri, Yol. oe
604 SUPREME Court Jones, v. interpretation.” [Cox words, best mode of .is the ... 229 l.Mo. c. 62.] will of Newton the to of construction foregoing’ rule Applying the consistent, each render endeavoring harmonize Bond, and (21” of said “Fifth “Fourth” paragraphs other, with the the intent general plan to the whole will, in effect order to will, and entire of the gathered from the context the testator as accurately or (2)” “Fifth does paragraph that view of fact II. appellant, name indisputably describe and including cor- name, by his and correct full thereof beneficiary whom that the initial, to us evident middle it seems rect ” “Fifth paragraph devise under take testator least, doubt Bond; a considerable of John was not to be an heir that language will, entire minds, of the in our because arises an who is appellant, William II. intended that testator paragraph under Bond, should take the devise heir of John C. (2)” the will. “Fifth always of a will court starts
Furthermore, the construction dispose liis presumption that the testator intended presumption is by will; against or, words, other whole estate whole, indicates partial intestacy of where as a the testator complete disposition all of the intent the testator to make prevent presumption his of the property, the reason by partly partly incongruous passing estate will and situation Brown, 457; l. v. Wat 167 Mo. c. Watson descent. [RoBards 171; son, Darrah, c. Willard v. Mo. l. Mo. l. c. 671.] presumption dispose “The a testator intended his entire and not to either estate die intestate whole or as. to to.the part thereof, i>resump should be so construed unless this provisions clearly tion is rebutted of the will or evidence contrary.” Cyc. apparent us, It seems from 1409.] [40 will in examination its entirety, the testator intended dispose expressly his and estate will. -He deceased, every his children, living names- therein one of whether referring specific designations to each of them “my son” or “my daughter,” except son, save deceased William N. Bond.
In the second and third paragraphs, respectively, of names his daughter, Josephine Riley, son, Carroll J. they and, because have been respective theretofore advanced their estate, provides they the testatór shall take noth shar.es ing more will. Likewise, under his in the fourth paragraph will,, names deceased John C. and, because he has been theretofore advanced his share the estate, the provides heirs shall more under the will. (1)” “Fifth names, and makes *10 Riley. Bond v. 1927} Bond. marriage, William by
provision tbe second for, minor son bis provides and will, names the the paragraph tbe sixth In the Arnett. Haynes Annie and daughters, for his two Ellen in order to make apparently residuary, will, eighth, of the clause by descent, testator the pass shall certain that no estate (other property than the provides of his estate that whatever remains mar- named) by the second pass his minor son thereinbefore shall (testator’s wife), Per- riage, mother second Bond, William and his Bond, does testator name equal in the will lina shares. Nowhere desig- by marriage, Bond, by AVilliamN. first his deceased son de- “my or name heir and descendant son”, nation of son, Boyd Bond, it testator intended ceased C. unless son, provide name for and descendant of deceaséd and the heir Bond, by N. the will paragraph (2)” William “Fifth de- N. scription “my grandson, William Bond.” Unless designation, by the descendant his deceased intended the testator that son, Bond, beneficiary paragraph William under is take as the N. ” (2) “Fifth provide of the then the does not name or Boyd Bond, son son, descendant of such deceased C. descendant of testator’s takes a share of tes- pretermitted tator’s estate as heir under the statute of this State (Sec. 1919). 514, R. Boyd Bond, S. That C. son N. of William grandson by pretermitted of the shall as descent apparent purpose heir not in consonance intent of (as will) dispose disclosed entire permit part of pass and to no estate to descent, opposed against presumption partial to the intestacy of the testator. description Is there a ambiguity latent in tbe beneficiary of the ”
who is to take the under paragraph devise “Fifth of testator’s Or, will? beneficiary, as. contained written equivocal? think so. We seems It clear that the testa tor go intended the devise to to his as evidenced tbe words, “my grandson.” use of the Both claimants to the devise; viz., appellant, respondent, Boyd H. grandsons of the testator, and hence both fall descrip within the relationship tion of beneficiary to the testator. Neither claim ant, however, bears the full name and middle initial of beneficiary named and described to-wit, William N. Therefore, Bond. respects the two claimants of devise, the de ;“Fifth scription beneficiary contained in (2)” partly will is partly correct and incorrect-. It is correct as to the relationship to the testator, namely, “my grand son;” it is not correct full as to name middle initial beneficiary, for neither claimant bears full name, “William N. [April Missouri, Yol. SUPREME of tlie circumstances surrounding Bond.” The environment great in arriv aid render his will testator at the time he us.no by the beneficiary who identity the true very although evidence, some While there is
testator to devise. take the *11 favored Bond, was II. slight, appellant, William tending show that being by early childhood years of his grandfather during value, such pecuniary small presents a recipient made the few appel further shows etc., yet toys, as the evidence knives, shoes, but eleven he was when of testator place lant left the of residence the testator years years before age and about fourteen during grandfather will; appellant seen or visited had never grandfather Plains, where his years after he left West fourteen life, made any time in his never, at resided; appellant and that had hand, is some evidence other there his home with the On the testator. lived the testator grandson, Boyd that testator’s his home grandfather as time, the home of the for some and- claimed respecting years. But, said, have the evidence for a number of as we will, made his aids but the environment at the time he of the testator all, solving identity intended little, if in of the respecting the devise, take and a doubt still remains being person Such true testator to the devise. admitting situation, trial chancellor err in the testi did the learned Hogan, mony witnesses, the latter the scrive Toler and ner who the declarations of intention made wrote will? before, of, or at the time the execution of the always chary extremely We are well aware that courts are admitting proof cautious, rightly so, direct dehors the will of actually provide by what the testator intended to and es at, pecially respecting the testator’s declarations of intention made to, prior general or the time of will. rule, the execution As a rarely, ever, the declarations of a testator are if admissible for purpose impeaching unambiguous the clear and language of the [Neibling Orphan’s v. Methodist Assn., Home 286 S. W. l. c. However, are instances, adjudicated there as shown 65.] cases, admissible, where evidence is deemed not for purpose establishing contrary an expressed intention to that on the face but in aid of the intention of the testator as ambiguously inaccurately expressed upon or the face Says of the will. Mr. Schouler, (6 Ed.) his standard on text Wills vol. 2, pages 1068, 1069: “In place, the first positively, most extrinsic evidence of (or parol evidence, intention it is often called), is admissible to persons which of two things determine or more or was intended under equivocal description.” after Again, discussing adjudicated bearing cases subject, on the same learned text-writer arrives at 1‘ this conclusion: two cases, classes of then, in which direct evi- Riuey. BONDv. 1927] inten appears to show the
denee the will admissible dehors object thing, or sub tion, person are Where or these: applicable in terms ject disposition, described thing. (2) Where the person indifferently to than or more partly in correct and thing partly person or equivocal. Or, per something correct, and the correct leaves subject, extrinsic evidence view haps, to take broader insufficiently the instrument intention be admitted wherever object applied as to a doubt expressed in terms so raise disposition effect, subject intended, and, order to supplied. On insufficiency the other doubt must be cleared hand, proof out its ten such extraneous should ruled whenever dency different in essence from what the is to establish an intention face; on where admissible it.is aid of expresses its own expressed intention, against it.” the testator’s Schouler.-on [2 Ed.) (6 p. Wills 1075.] recognized
Another thus announces the rule: text-writer “When may appear circumstances' is all in, evidence extrinsic *12 description by in the will which apply was intended the testator to object applicable, or thing to one or is with more certainty, less objects things. several or ambiguity, This is case of latent and parol is person thing evidence then received to ascertain which or by ambiguity latent, was intended the testator. Where the is is it by facts, created evidence of extrinsic and the same evidence ad- is missible to remove it. But such evidence not direct evidence of and, if intention, the rule in reception parol relation to the evi- ambiguities dence permitted to solve latent the introduction of such only, require it separable discussion, evidence would not itas would be, synonymous always the rule that extrinsic facts are admissi- explain language ble to will, regardless of the nature of ambiguity, patent wh it ether be or principle goes latent. The much than It is not this. to be confined admission of further facts appertaining -solely circumstances of the and which merely meaning tend to show the of his words. it Under evidence showing suggesting or a direct inference of intention as to things objects disposed will, or inof including the testator’s declara- tions of and, intention uttered at the execution of according cases, subsequently to some of the thereto, are received to assist disposing- the court in ambiguity, by the latent showing which of persons things answering several or description to was intended ‘ by Hence, it will testator. seen may be that there be, usually is, an essential and radical difference between the evidence which raises e., ambiguity, proof or creates the latent i. of extrinsic circumstances case, and the evidence which explains removes it, and be declarations of the intention of the testator as well [April SupRbme Vol. by is claimed Thus, . if a benefit . . evidence cii’cumstances. will one or answering description persons, all several answering per- to it though them none of particulars, material more is re- extrinsic evidence every particular, fectly accurately in Wills, Underhill on including of intention.” ceived, expressions [2 910, pp. sec. 1398-1400.] court, parol applied this rule thus announced The inten declarations of respecting testator’s evidence of the scrivener Darrah, Mo. in Willard admissible, tion was held be "my well-beloved testator to ease, 671. In that a devise was from extrinsic appeared Willard.” It nephews, and William John grandsons named by two was survived evidence named grandnephews, also Willard, John William two nephews no however, had Testator, John and William Willard. pro named grandsons were not bearing The two those names. pro name and the testator intended vided for unless described bene will which for them clause vide nephews, John William "my well-beloved ficiaries thereof Edwards, testimony The of a the scrivener witness, Willard.” the effect he drew the re who wrote the was to given grand that the quest of who directed devise (the Willard, children, John and mistake he scrive ner) "grandchildren.” "nephews” instead of The wrote the word rejected by trial court. Said evidence of the scrivener was Brace, speaking J., P. division of this court that case: "As to this description contained each of these sets brothers partly partly It is to the correct incorrect. correct as Christian set; super- it is surnames each correct as neither relationship description . . . added the testator. The de persons scription partly partly correct and incorrect, leav ing something equivocal. apply precisely does *13 brothers, morally to either of these two sets of but it is legally and apply other, that it was certain intended to to one or the bring thus case within rule established the the second of class cases parol including in which direct or evidence, expressions extrinsic of intention, Such admissible. evidence was therefore admissible in ambiguity in a produced by this case order to solve latent extrinsic application in of evidence the terms of the will objects .to bounty, prevent the fourth clause of the will from partial intestacy and perishing, obviate a of the testator. Its effect establish intention is not to different in essence from that ex light pressed in the let in that intention, ren outside circumstances, obscure be more clearly dered dis cerned, scope and the will the testator its entire effectuated ac conclude, cording meaning'. true intent and Hence, we that Riley. C09 Bond'v. 1927] Edwards, rejecting tlie court evidence of the scrivener erred plaintiff provided or holding and in that not named was grandfather.” the will of his grand-
So, 602, appears v. that in Gordon 141 Mo. it Burris, daughter Lucy May Gordon, was named in the will testatrix as Mary Josephine her whereas name was Gordon. It was ruled true description granddaughter therein that was a the incorrect equivocation ambiguity latent or and in the extrinsic consisting evidence; was testatrix and what said between lawyer respecting beneficiary, who- will drew the the name of prevent grand- was ambiguity admitted to remove the daughter claiming from as a pretermitted heir. Sebern, Covert v. 73 Iowa, prop a testatrix devised certain
erty “my stepson, stepson H. Covert.” S. She no whose S.,” stepson initials were Harvey Covert, “H. but had a named John who usually “Harvey.” Held, upon called such facts appear, ambiguity description there arose latent beneficiary, parol evidence therefore the scrivener the effect that him testatrix directed to write the so as to her “stepson, Harvey,” supposed and that he Harvey’s initials of H. name S., were he therefore wrote those him, initials into the explain to describe was admissible to Gallup ambiguity. Wright, remove the To like effect are latent. (N. Y.) 286, How. Prac. v. Stearns, Morse Mass. opinion testimony We are witnesses, of the Toler Hogan, respecting expressions, declarations, of intentiou ambiguity the testator herein to the latent admissible remove equivocation tes- paragraph (2)” tator to take under “Fifth of his and to aid beneficiary. in identifying the court Our construction of the will of Newton Bond accords with that of the learned trial chan- cellor, believe, for we from a entirety, consideration of the will in its intention, and the extrinsic admitted in evidence aid of the testator’s grandson Boyd intended his son Wil- liam N. appellant, not the H. to take as .beneficiary under (2)” devise “Fifth opinion judgment We of the circuit court was right affirmed, and should be so ordered. Lindsay and CC., Ellison, concur. foregoing opinion
PER CURIAM: SeddoN, C., adopted opinion of the court. judges All of the concur, except Gantt, J.} sitting. not.
.317 Mo. Sup,—39.