Goode v. Goode

22 Mo. 518 | Mo. | 1856

Ryland, Judge,

delivered the opinion of the court.

Some time in April, 1855, John Goode died in Franklin county, having previously made his last will, with a codicil thereto. This will and codicil were admitted to probate about the last of April, 1855 ; and this petition is brought by some of the legatees of said John Goode to reform the will, so as to make it córrespond with the alleged intention of the testator.

To this petition a demurrer was filed, which was sustained by the court below, judgment rendered thereon for defendants, and the plaintiffs bring the case here by appeal.

This action is substantially a proceeding to correct a mistake in a will, and we hesitate not to declare that such a proceeding can not be allowed or sustained ; and, consequently, that the Circuit Court decided the case properly, and its judgment must be affirmed.

Adams, in his treatise on Equity, p.'172, says.: “ A will can not be corrected by evidence of mistake, so as to supply a cause or word inadvertently omitted by the drawer or copyer; for there can be no will without the statutory forms, and the disappointed intention has not those forms. But it seems that if a clause be inadvertently introduced, there may be an issue to try whether it is part of the testator’s will.” Jarman says : “ Evidence is not admissible to supply any clause or word which may have been inadvertently omitted by the person drawing or copying the will.” (1 Jarman on Wills, 353.) In Mann et al. against the executors of Mann et al. (1 Johns. Ch. Rep. 231,) Chancellor Kent says: “It is a well settled rule that seems not to stand in need of much proof or illustration, for it runs through all the books, from Cheny’s case (5 Coke, 68) down to this day, that parol evidence can not be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specific cases : 1st, where there is a latent ambiguity arising dehors the will, as to the person or subject meant to be described; and, 2d, to rebut a resulting trust: all the cases profess to proceed on one or the other of those grounds.” After citing a list of authorities on the doctrine, he proceeds : “ If there be a mistake in the name of the legatee, or there be two legatees of the same name; or if the testator bequeath a particular chattel, and there be two or more of the same description; or if, from any other misdescription of. the estate or of the person, there arises a latent ambiguity, it may and must be explained by parol proof, or the will would fall to the ground for uncertainty. When a latent ambiguity is produced, according to the language of the courts, (Lord Thurlow, in 1 Ves. jr., 259, 261, 415, and Lord Kenyon, in 7 Term Rep. 148,) in the only way in which it can be produced, viz., by parol proof, it must be dissolved in the same way ; and there is no case for admitting parol evidence to show the intention upon a latent ambiguity on the face of the will. They are all cases of latent ambiguity, and the objection to supply the imperfection of a written will, by the testimony of witnesses, is founded on the'soundest principles of law and policy. ‘It would be full of great inconvenience,’ say the justices in Cheny’s case, ‘ that none should know by the written words of a will what construction to make or advice to give, but that it should be controlled by collateral averments out of the will;’ and if collateral averments be admitted, to use the words of Sir Mathew Hale, in Fry and wife V. Porter, (1 Mode, 310,) ‘ how can there be any certainty? A will may be any thing, every thing or nothing. The statute appointed the will to be in writing, to make a certainty; and shall we admit collateral averments and proofs, and make it utterly uncertain ?’ ”

Chancellor Kent says : “ Perhaps a solitary dictum, may occasionally be met with (for there are volumes of cases on the subject of wills, immensus aliarum super alias cumulus') iu favor of the admission of parol proof to explain an ambiguity or uncertainty appearing on the face of a will; though Lord Thurlow says there is no such case. If there be, we may venture to say it is no authority ; the only apology for personal proof in any case is the necessity of the thing, because the ambiguity is so complete as to elude all interpretation, and would destroy the devise altogether unless explained.” Andress v. Weller, 2 Green’s Ch. Rep. 604, supports the same doctrine.

Judge Story, in his equity jurisdiction, (1 Sto. Eq. § 179,) says : “In regard to mistakes in wills, there is no doubt that courts of equity have jurisdiction to correct them when apparent on the face of the will, or are to be made out by construction of its terms ; for, in eases of wills, the intention will prevail. But, then, the mistake must be apparent on the face of the will, otherwise there can be no relief ; for, at least, since the statute of frauds, which requires wills to be in writing, (whatever may have been the case before the statute,) parol evidence, or evidence dehors the will, is not admissible to vary or control the terms of the will, although it is admissible to remove a latent ambiguity.”

Parol evidence of the intention of the testator is inadmissible to vary the express terms of a will. (Avery et ux v. Chappel, 6 Connec. 270; Earl of Newburgh v. Countess Dowager of Newburgh, 5 Maddox Ch. R. 364.)

Apply the universally'admitted doctrine of courts of equity to this case now before us, about reforming wills or correcting mistakes in wills, and there will remain no doubt of the correctness of the decision of the court below.

Here, the parties (plaintiffs) seek to change a sentence or paragraph of the will of the testator, by adding the names of other legatees, so as to alter materially the bequests, — indeed, seek to cut out one paragraph in effect and set up a new one. Admit this doctrine, and you may as well repeal the statute requiring wills to be in writing, at once. Witnesses will then make wills and not testators.

Upon the full examination of this case, and the law arising on it, there can be no doubt of the correctness of the judgment of the court below, and it is affirmed by all the judges.