84 Kan. 791 | Kan. | 1911
This case involves the construction of the following clauses in the will of John Cummins:
“To my son Daniel Cummins, I will and devise the 40 acres of land situate in Leavenworth county, Kansas, and described as follows:
“The south i/2 of the N. E. % of the N. E. % of section 25, township 10, range 22, containing 40 acres more or less. _ -
_ “To my son Dennis Cummins, I will and devise the 40 acres of land situate in Leavenworth county, Kansas, and described as follows:'
“The north l/2 of the N. E. % of the N. E. % of section 25, township 10, range 22, containing 40 acres more or less.”
It will be observed that while the testator spoke of devising forty acres of land to each of the sons named, in each instance the tract specifically described contains but twenty acres. These sons brought an action to have the will construed, claiming that as their father had owned the north half of the northeast quarter of the section named, and no other land in Leavenworth county, his intention clearly was to give to each of them one-half of this eighty acres. A part of the defendants maintained that only the forty acres specifically described was actually devised and that the other forty acres descended to the heirs of John Cummins, the will having contained no residuary clause. The court adopted the latter view and the plaintiffs appeal.
Notwithstanding the inconsistency noted the real purpose of the testator should be carried out, if it can be arrived at with certainty from the language he has used. The case is merely one of repugnant calls, and the rule of reason and authority is to follow the call in which there is least likelihood of a mistake having occurred, and which was likely to have engaged the closest attention of the testator. Here it is appar
It is true that ordinarily the statement of the area, is the least important part of a description of a tract of land — the last to be resorted to where there is ambiguity or obscurity. But that is because ordinarily the matter of acreage is least prominent in the minds of the persons concerned, and is that concerning which a mistake may most readily be made. Where the peculiar-circumstances reverse these conditions the ordinary rule of interpretation is reversed.
“Where the intention is clearly expressed that a specified quantity of land is to be conveyed, the designation of quantity has undoubtedly a controlling effect in determining the boundaries of the land.” (129 Am. St. Rep. 1011, note.)
The following language, although used by Mr. Chief Justice Cooley with respect to a deed, is equally applicable to a will:
“In general, fixed lines and monuments are allowed to control quantity, for the reason that these, being-known and open to the observation of the senses, are more likely to have been noted by the parties in the course of their negotiations, and fixed upon in their minds as the important particulars in their conveyance, than the quantity, which may or may not have been accurately determined, and often is not specially made prominent.
“But cases sometimes arise in which in the deed itself it is made apparent that quantity was more prominent in the minds of the parties than any other single*794 particular which is given; and in such a case the purpose in construction, and the general rule that the particulars shall be allowed to control in respect to which there is least probability of error, would both be disregarded if quantity were to be subordinated in construction to something else.” (Moran v. Lezotte, 54 Mich. 83, 88.)
We think'the will of John Cummins clearly and beyond all substantial doubt expressed 'his intention to devise forty acres to each of his sons, Daniel and Dennis. Therefore so much of the formal description as is inconsistent with this purpose must be rejected. (6 L. R. A., n. s., 967, note; 4 Wig. Ev. §§ 2476, 2477; Zirkle v. Leonard, 61 Kan. 636.) The half of a quarter of a quarter section can not contain forty acres; therefore one part or other of the phrase “of the N. E. 1/4 of the N. E. 1/4” must be wrong. The manifest error can be eliminated by disregarding the entire phrase, and the purpose of the testator may be carried out if •there still remains enough of the description to show what land he had in mind.
“Where the will itself shows that there has been a mistake in specifically describing land which is also designated by a general description, the will may be made to operate upon the land intended to be specifically described, but which, by mistake, is incorrectly described in the specific description which follows the general.” (Pocock et al. v. Redinger, 108 Ind. 573, 575.)
The fact that the will assigns to one of the two sons forty acres designated as the south half of a tract erroneously described, and to the other the north half of a tract indicated by the same erroneous description, makes the intention clear that each was to have the half of an eighty-acre tract in Leavenworth county. In the absence of anything to suggest the contrary the testator must be understood as asserting that he is the owner of a tract which he undertakes to devise, although he does not in terms refer to it as his land, or
“The purpose of the construction of a will is to determine the intention of the testator. That intention must be found in the words of the will itself, as applied to the subjects and objects of the testator’s, bounty. Parol evidence, though not admissible to change the language of the will, may be received when necessary to identify such subjects and objects. A court of equity can not correct a mistake in a will by reforming the instrument, but all the circumstances surrounding the testator and the state and description of his property may be shown, for the purpose of applying the language used to the conditions existing. However many errors there may be in a description .either of a devisee or the subject of a devise, the devise will not be avoided if enough remains, after rejecting-the errors, to show with certainty what was intended, when considered from the position of the testator.” (Collins v. Capps, 235 Ill. 560, 562.)
The view, we adopt is strengthened by the presumption against partial intestacy (30 A. & E. Encycl. of L.. 668), and perhaps also by the provisions made for each of the testator’s children, but we regard the considerations already stated as determinative of the case.
The judgment is reversed and the cause is remanded, with directions to enter judgment in accordance herewith.