Chambers v. Watson

56 Iowa 676 | Iowa | 1881

Adams, Ch. J.

l. equitable i&form°liioa! °i win. That it is not the province of a court of equity to reform a will was held in Fitzpatrick v. Fitzpatrick, 36 Iowa, 674. A will devising real prop- ‘ ei'ty must not only be in writing, but must be executed with certain statutory formalities. If a court of equity could reform a will, and thereby give it an effect which it otherwise could not have, the court would give testamentary force to a mere intention regardless of the manner in which it is expressed. The demurrer to the cross petition seeking a reformation of the will, we think, was properly sustained. Whether the will by its own terms might not be held to operate as a devise of the land in controversy is another question that is to be determined by the meaning of the words, figures, and letters used in the description. It is not impossible that the description is such as the testator was accustomed to use to designate the respective tracts. We can hardly conceive that it was, but it is not for us to say that it was not.

A devise of a thing by any name, or to a person by any name, however different the name used in the will may be from the true name of the thing or person, is a good devise, . provided that it be shown that the name used was one by which the testator was accustomed to designate the thing or person, and such showing may be made by parol. It is always competent to supplement the language of the will by parol evidence so far as is necessary to apply the language of the will to the object or person intended. Parol evidence is allowable too to explain a latent ambiguity. Whether the ambiguity is such in this case we need not determine. That question will arise perhaps upon the issue tendered by the answer.

The cross petition, upon which arises the only question ' now presented, seeks to change the will. It is true it does not seek to eliminate a plainly intelligible term as in Fitzpatrick v. Fitzpatrick, but it seeks sdmething equally objectionable, and that is, to supply terms, without which the cross petition virtually confesses that the description is fatally defective.

The ruling in sustaining the demurrer is

Affirmed.