Cuningham v. Cuningham

| S.C. | Feb 1, 1884

The opinion of the court was delivered by

Me. Justice Feasee.

[Statement of facts is omitted, as it has been already fully given in the Circuit decree.] None of the grounds of appeal bring up for the consideration of this court any questions concerning the personal property included in the life-estate of Mrs. Cuningham, or as to the order for account of the rents and profits, and these matters need not be referred to. The only questions which remain are those affecting the title of the 867 acres and the 760 acres of land. They are as follows:

1. What is the proper construction of the second, third and fifth clauses of the will of Robert Cuningham ?

2. What is the proper construction of the will of Pamela Cuningham, and what interest did plaintiff take under it in this land, if any?

3. Is it competent to use parol or any extrinsic evidence to control or aid in the construction of these wills, as to the matter before the court ?

4. Did Pamela or John Cuningham, or either of them, in making the division of the land, in January, 1875, act in ignorance or under a mistake of law as to what were their rights in the land covered by their deeds of that date?

5. Was there any ignorance or mistake which is a ground of relief in this court?

6. Is Clarence Cuningham, as devisee of Pamela Cuningham, estopped from setting up any claim to the fee in consequence of her accepting a conveyance for life only in the 760 acres from John Cuningham?

When John Cuningham survived his mother, Louisa, who died in 1873, it can scarcely admit of a doubt that he took under the second clause of Robert Cuningham’s will a.fee in one-half of the 1,000 acres of land given to her for life. The only contingency in reference to his interest at her death was as to his having died before her, in which event his issue, if any, were substituted in his place to his share. Precisely the same words are used as to Pamela, and, having survived her mother, she took also a fee in remainder. Upon the words of the will itself, the matter is too plain for argument. Whether parol or extrinsic evidence of any kind can control this will be considered hereafter. The wife and daughter, however, each received in the division, under the fifth clause, 627 acres of land “ subject to the same trusts and limitations as are provided in the second and third clauses.” Now, in the second clause, the life-estate is in the widow, and the period of distribution is her death, and then to the survivor of John and Pamela, or both, if they both survive, the issue of either who had died in her life-time to be substituted. In the third clause, the life-estate is in Pamela, and at her death without issue the property goes to John if living, and if not to his issue.

The construction which would hold Pamela’s share under the fifth clause subject to the limitations in the second, or the widow’s share under that clause subject to the limitations under the third, would lead to such confusion in construction as would make it impossible to carry out the will. It would not be possible, on this construction, to say at what period the fee, as to a part of it at least, became vested in John Cuningham, and the right of his children or issue to be substituted in his place lost. The only view which seems clear of difficulties is, that the widow and daughter took under the fifth clause, subject to the trusts and limitations as to them respectively in the second and third; and that the 627 acres was held by the widow in the same way as the 1,000 acres under the second clause; and as John and Pamela both survived her, they each took a fee in one moiety thereof. So much for the will itself.

The next question of construction is as to what • passed to Clarence Cuningham under the will of Ann Pamela Cuningham. The words of the will are very comprehensive by which the testatrix gave her property to the plaintiff: “ All the property which I hold in my own right at the time of my death.” A will now speaks at the death, as well to realty as to personalty, and as if to provide against any doubt as to what was intended, the time of her death, and not the date of the will, or even of the codicil, is chosen as the period to which is referred the ownership of the property intended to be covered by the terms of the will. These words cover everything, and would cover even after-acquired property as well as property in which, as in the land here in question, the testatrix had a contingent interest — an interest in her own right, if the contingency happened, as it did.

Is there anything in either of these wills as to the matters before the court- to justify a resort to parol or extrinsic evidence? It might not be amiss to refer to some of the authorities on this subject. We find in the general rule of construction laid down by Jarm. Wills, (vol. III., p. 705,) the following rule: “ That extrinsic evidence is not admissible to alter, detract from or add to the terms of a will (though it may be used to rebut a resulting trust, attaching to a legal title created by it, or to remove a latent ambiguity) arising from words equally descriptive of two or more subjects or objects of gift.” We find the same rule substantially in Abbott’s Trial Evidence, § 105, where there is an “ equivocal designation of the beneficiary,” or “A similar ambiguity as to the property given.” “And it cannot be made admissible even by showing that the testator did not own the parcel designated in the will, and did own another, and that the draftsman made the mistake.” Id., § 102.

The rule is laid down in Wigr. & O’II. Wills 14, in these words: “ Where the object of the testator’s bounty, or the subject of disposition, (i. e. person or thing intended,) is described in terms applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator.” This kind of evidence can be admitted when it “ merely tends to explain and apply what the testator has written, and no evidence can be admitted which merely shows what he intended to write.” McCall v. McCall, 4 Rich. Eq. 455, quoted, approved and applied in Scaife v. Thomson, 15 S. C. 357. There can be no doubt as to what persons were intended in either of these wills, or what property is covered by the language used. There is no latent ambiguity which calls for extrinsic evidence as to either the persons or property, and the conclusions reached as to the proper construction of the wills themselves cannot be controlled by any testimony which has been offered as to any intentions not expressed in the wills themselves.

It may be admitted, for the purposes of this case, that John and Pamela Cuningham were ignorant, or fell into a common error, as to their rights under the will of Robert Cuningham; and that the deeds of January, 1875, were executed by them under an impression that Pamela had only a life-estate in one-half of the 1,627 acres. It is more than probable that they reached this conclusion from what they knew of the wishes and general purposes of their father from himself, and not from any careful or critical examination of the terms of the will itself.

This court concurs with the Circuit judge, upon a careful consideration of the testimony, in his conclusion that there was no mistake of law, as contradistinguished from ignorance of law. There does not appear in the testimony anything which goes to* show that any person ever told Pamela that she had only a life-estate in the moiety of this land, and there is certainly no evidence that she ever submitted this will for a construction as toiler rights under it to any one of the distinguished gentlemen^* with whom it is said she conversed on this subject. It is more-reasonable to think that, in a matter to the mind of this court so-plain, they conversed or even advised with her on her own assumed construction of the will than construed it for her. She-was a lady; though of feeble body, yet of well-matured intellect,, of unusual intelligence and national reputation. Even Mr. Yancey, who drew the deeds of January, 1875, got his impressions from her, and, in his testimony in this case, says: “ I was-impressed with the belief that the widow and daughter took under the will only life-estates, derived from their statements or belief.” Even at the' time of this division he does not seem to have construed the will for her, and seems to indicate that, if there was anything for him to construe, he would have declined to act. If there was any error it was her own.

If the mistake in this transaction had been one of fact, without any improper negligence on her part, all the authorities agree-that the court could give relief if application be made in due-time. A mistake of law stands, however, on a different footing. Pacts, material facts, are often in the ‘knowledge of only one of the parties, sometimes known to neither, and either inaccessible- or carefully concealed. It is presumed that every one knows the-, law, and for the very good reason that the source of information is open for all equally. It is true, that questions of law are-sometimes doubtful. Lawyers, and even courts;, differ about them; but there is no unfairness, and nothing unreasonable in requiring parties in ordinary cases to take these with all the-other inevitable risks of human life when they stand on equal footing with their fellows.

The case before the court does not call for any attempt to define the rule by which relief can be granted on account of mistake of law. Mr. Justice Story, in his work on Equity Jurisprudence, (vol. I., § 138,) says that “ it may' be safely affirmed upon the highest authority, as well-established doctrine, that the mere naked mistake of law, unattended with any such special circumstances as have been suggested, will furnish no ground for the interference of the Court of Equity, and the present disposition of the court is to narrow rather than enlarge the operation of the exceptions.” The cases involving special circumstances are referred to in some of the preceding sections; but no general principle is deducible from them. Not more satisfactory is the elaborate collection of the cases and discussion of this subject in the note to Blush v. Ward, 15 Am. Rep. 171, or the rule suggested by Mr. Pomeroy in his valuable work on Equity Jurisprudence, vol. II., § 849.

In this State, however, the distinction has been sharply drawn between ignorance of law and mistake of law. In Lawrence v. Beauhien, 2 Bail. 623, and in Lowndes v. Chisolm, 2 McCord Ch. 455, the court holding that in cases of mistake, the court could give relief, and that it would be refused in cases of mere ignorance. The principal reason given being that mistake could be proved and that ignorance could not. As parties can now testify in their own behalf, it may be doubtful if this reason can be longer sufficient to justify the distinction. In Hopkins v. Mazych, the Court of Appeals, in affirming the Circuit decree, takes occasion to put its judgment on another ground, and to reaffirm the doctrine in Lawrence v. Beauhien and Lowndes v. Chisolm, on which the chancellor had cast some doubt in the Circuit decree. The court, however, has never held that even a mistake in law stands in all cases on the same footing as a mistake of fact. And nowhere have any limitations been laid down capable of general application.

In Keitt v. Andrews, 4 Rich. Eq. 349, Chancellor Dargan, in the Circuit decree, which was affirmed per curiam, uses these words: “ The simple misconstruction of a will or deed where there is no fraud or circumvention, cannot be regarded in any point of view as coming within the scope and authority of those cases where mistakes of law in contradistinction to ignorance of law have been considered as affording grounds of relief. It is a cardinal theory of the law, founded upon a necessary policy,, that every one is presumed to have a knowledge of its principles. This presumption prevails as well in reference to civil rights, as in the criminal code. Without this doctrine, no system of law can practically fulfill the ends of its institution.”

That case arose in this way: The will of Daniel Hesse gave certain lands to his grandchildren. The lands were sold and the money being in hand for distribution, all the grandchildren referred it to the ordinary to make up a statement for them according to the will, the sale and conveyances having been made by the grandchildren themselves. By this statement, a settlement was made letting in several grandchildren who were born after testator’s death, and clearly not entitled to anything. It is true, that there were other grounds on which the Circuit decree rested the judgment, and the action was to recover back money paid. Yet this is very high authority for the opinion that, “ the misconstruction of a deed or will is not to be regarded as coming within the scope and authorities of those cases where mistakes of law, as contradistinguished from ignorance of law, have been considered as affording grounds of relief.”

In this view, this court concurs, and holds that even if there is a difference as to ignorance of law and mistake of law, and it should be regarded as in fact true that Pamela Cuningham had formed an opinion, either from her own construction of this will or in consequence of erroneous advice of others, this is no ground on which this court can relieve her devisee from the effect of these solemn deeds executed in 1875.

In the view taken by the court of this case, it is not necessary to consider the question of laches or the statute of limitations as a bar to plaintiff’s claim; but, though urged in argument, no question has been made in reference thereto by the exceptions.

No act can be considered an estoppel unless it has been acted on by the party claiming the benefit of it. A man will not be allowed to aver against his own deed; but there is nothing in the deed of January, 1875, of John Cuningham to Pamela Cuningham, or in the deed of same date of Pamela Cuningham, which in any way undertakes to dispose of the fee in this 760 acres of land after the death of Pamela. It stands now where it was before the deed was made — one moiety in John Cuningham and one moiety in the plaintiff, to whom it passed under .Pamela’s will. The parties simply held possession according to the terms of their respective deeds. We have held that these ■deeds cannot be reformed, but must stand according to their terms; and if the deed from John to Pamela had gone on to dispose of the remainder in the 760 acres after the death of Pamela, that would have been an end of the whole matter; but the omission of that deed to dispose of this remainder, has left such remainder untouched, and which thus fell under the will of Nobert Cuningham, as herein construed.

No question has been raised by the appeal as to the mode of accounting for the rents and profits.

It is therefore ordered and adjudged, that the exceptions be overruled; that the judgment of the Circuit Court be affirmed, and the appeal dismissed.

* These were David Paul Brown, of Philadelphia; James L. Petigru, Henry C. Young and B. P. Perry, of South Carolina. — Reporter.