113 Ill. 327 | Ill. | 1885
delivered the opinion of the Court:
The proofs entirely fail to sustain the allegations of a want of disposing capacity in the testator, and of undue influence in bringing about the making of the will. In fact, these positions in the bill are not pressed, here, by counsel for defendants in error. The sole questions for our consideration arise upon the fifth clause of the will. These are its words: “To my daughter Dora L. Rees I will and bequeath the south-west quarter of the north half of section 14, town 8, range 2, west,—the remaining lands owmed by me to be divided between the four boys. ” It is insisted in the bill, and in argument, that the description of the land here given to Dora L. Rees “is not such as could be located and determined by section lines and legal boundaries.” We see no foundation for or force in the objection. The south-west quarter of the north half of a given section of land is certainly very definite. It is the same as the south half of the west half of the north half of the section,—in other words, it is the south half of the north-west quarter of the section; and if the section be an exact mile square, the description embraces eighty acres of land off the south side of the north-west quarter of the section. In argument it is said this must be erroneous, because the testator was “not the pwner of all” of the south half of the north-west quarter of this section. If this be so, Dora takes only so much thereof as the testator did own. Kurtz v. Hibner, 55 Ill. 514, and Bishop v. Morgan, 82 id. 351, determine this question.
Counsel for other plaintiffs in error say that there is a mistake in this description, and insist that this error ought to have been corrected so as to give Dora only forty acres, and that so located as to embrace very little of the land here described. This claim is said to be supported by parol proof that the testator, at the making of the will, distinctly directed the scrivener to describe the forty acres named, and that by the blunder of the scrivener the description in the will does not designate the land designated by the testator in his directions to the scrivener. A will, duly signed and attested, as is required by law, can not, in a case like the present, be reformed and such mistake corrected upon parol proof contradicting or changing that which is unequivocal in the words of the will. We must, in such case, deal with it as we find it.
■ It is also insisted, and this most strenuously, that the description of the donees of “the remaining lands” is too indefinite, and, in fact, void for uncertainty. It is said it is entirely uncertain as to whom reference is had by the use of the words, “the four boys.” It is said the testator had then living seven sons, and it is therefore said there is no lawful means of ascertaining which of the seven sons was meant by the words, “the four boys.” When it is shown that at the time of making the will three of those sons were men, and that each of them was then a married man and the head of a family of his own, with whom he resided, away from the parental roof, and that the other four sons were at that time minors, living at home with their father, the testator, and constituting a part of his household, it seems exceedingly plain that by the term, “the four boys, ” used in the connection in which these words were, the testator meant his four minor sons, who were living with him as a part of his household.
It is said this is a patent ambiguity, and it is only latent ambiguities which can be explained by parol proof. We do not think so. Take the will upon its face, and the inference would naturally be that the testator had but four sons, and there is, therefore, on the face of the will, no ambiguity. It is only from proof aliunde there were seven sons, that any ambiguity is made apparent. In such case, the circumstances under which the words were used may be proven, to enable us to determine what meaning is to be given to the words, as used. In addition to the facts above referred to, it is made apparent from the instructions given by the testator to the scrivener, and from the repeated declarations of the testator, both before and after the making of the will, as well as by proof of the gifts which he had made to each of his adult children upon their marriage, that by the words, “the four boys, ” the testator meant his four sons who were then minors, and living with him as a part of his family.
The whole subject of the admissibility of parol evidence in fixing the object or the subject of a devise or bequest, and of the limitations upon the admissibility of such evidence, is fully discussed, and the authorities collected, in 1 Jarman on Wills, chapter 13, with notes and references to American decisions. We do not deem it necessary to enter, here, in detail, upon that discussion, but content ourselves with saying that the subject of the gift to Dora can not lawfully be modified by parol proof, because the description in the will is certain and definite. No equivocation (as it is called in the books) is found in the words of the will in relation to the property described. The clear provisions of the will can not be changed by parol proof. On the other hand, the proof that the testator had seven sons, (unless we limit the term “boys” to males who are minors,) creates what is called an equivocation, and the authorities show that in such ease parol proof,—not only of previous facts which were known to the testator, and of present circumstances in the midst of which he made his will, but his declarations made at the time of making the will, as well as before and after the making of the will,—may be resorted to, to remove the equivocation and fix the objects of his bounty.
The decree in this case is therefore reversed, and the cause remanded, with directions to dismiss the original bill for want of equity.
Decree reversed.
