22 Haw. 644 | Haw. | 1915
OPINION OP THE COURT BY
This is an action brought under tbe statute (Cb. 153, R. L. 1915) to quiet tbe title to certain land situate at Kapahulu,
The will in question was made at Edmonton, Alberta, Canada, on September 9, 1912, while the testator was on a visit to that city, his former place of residence. The controversy has grown out of the uncertainty involved in the second paragraph of the will. The material portions of the. will in the order in which they appear in what is certified to be a fac simile copy of the original are as follows:
“I give, devise and bequeath all my real and personal estate which I may die possessed of or interested in, in the manner following that is to say: I give and bequeath to my wife Jane Mercer, all articles of personal, domestic or household use or ornament, including all my furniture, furnishings, fixtures, books, pictures, provisions, plate and all other household effects which at the time of my death shall be in, about or belonging to the house in which I shall be residing at the time of my decease;
“I give and bequeath all of those certain lots or parcels of land situate lying and being at Kapahulu” etc., describing at length the premises in dispute, but not naming or describing the object of the gift.
“I give all my real and personal property whatsoever and wheresoever situate, and not hereby otherwise disposed of, unto my trustees,” upon certain trusts, after payment of debts, in favor of the testator’s wife and children.
The trustees named in the will are residents of the city of Edmonton. The testator left srirviving him his widow, the plaintiff, three children by a former marriage, and two children by the present widow, who are defendants herein. The defendants, in two sets, filed answers denying the title claimed by the plaintiff, and claiming title in themselves, also cross-complaints in which they asserted title against the other defendants; the trustees claiming to take under the residuary clause, and the
On behalf of the plaintiff it is contended (1) that a fair construction of the will taken as a whole, and by itself, requires that the word “her” should be implied and read into the paragraph by which the testator undertook to dispose of the premises in dispute after the words “I give and bequeath,” in order to give effect to what is claimed to have been the obvious intention of the testator to give the homestead to his wife; (2) that the will read in the light of the circumstances surrounding the -testator at the time of its execution discloses clearly that such was his intention; and (3) that evidence of an express declaration made by the testator of his intention to devise the premises to his wife was erroneously excluded by the trial court. In support of the first contention the presumption against partial intestacy is invoked; also the presumption that a testator intends to make ample provision for his widow; and it is pointed out that the testator stated in his will that he thereby disposed of all his real and personal estate; that the furniture and other contents of the home were given to the wife; that the wife, who, upon the death of the testator, would become the head of the family and
In dealing with wills the function of the court is to ascertain, if possible, and give effect to, if it be not unlawful, the intent of the testator as he has expressed it in the instrument, and, in case of any latent ambiguity, or of uncertainty or incompleteness of expression in the will, to accept the aid of evidence of surrounding circumstances which will place the court as near as may be in the position of the testator as of the time he made the will- To this end also certain presumptions are indulged, and certain canons of construction, designed to aid in discovering the intention, may be made use of, and c.ourts are authorized to reject surplus words and to supply words obviously omitted through ignorance or inadvertence where it is clear what words the testator intended to have used. “Where it is evident from the context that the testator’s intention has been inaccurately or incompletely expressed by the words used, and it is also equally evident what words have been omitted, these words may be supplied in order that the testator’s intention may be given effect.” 30 A. & E. Enc. L. (2d ed.) 690. “To supply missing words where the words used do not show what they must necessarily have been is to step over the limit of the power of the court which is to discover the intention which the testator has expressed by the words used by him.” Boston Safe Deposit Co. v. Buffum, 186 Mass. 242. The foregoing are elementary principles — difficulty lies only in their application.
A will is a disposition of property to take effect on or after the death of the owner. Such a disposition of property implies
The next question is whether, as the will itself does not show clearly who the intended devisee was, the evidence of the circumstances which surrounded the testator at the time he made his will, and which, it is urged, confirm the contention that he intended to name his wife as the devisee, may be availed of as a basis for supplying the omission. The fundamental obstacle in the case at bar, and like cases, is not that the testator has not made his intention clear, but that he has failed to express it. “Where the will contains a latent ambiguity, or its language is uncertain and indefinite, it is a firmly established rule that parol evidence is admissible to show the facts and circumstances that surrounded the testator at the time of the execution of the
The final question presented by the exceptions is whether the trial court erred in refusing to admit testimony (which was offered) of a declaration said to have been made by the testator to his wife immediately after he had made his will, when handing her a copy of it, that “I made my will today, and I thereby give you the home.” The rule is that evidence of declarations or statements made by the testator as to the intent of his will, though admissible in cases of latent ambiguity (40 Cyc. 1435), is not admissible in cases like this. Lurie v. Radnitzer, 166 Ill. 609, 618; Fosters. Smith, 156 Mass. 379, 385; Walton v. Draper, 206 Mass. 20, 22; Lowe v. Whitridge, 105 Md. 183; McAleer v. Schneider, 2 App. Cas. (D. C.) 461, 467; Zabriskie v. Huyler, 62 N. J. E. 697, 701. “A testator’s declarations of his intentions are inadmissible, though logically they would seem to be the best evidence obtainable. They are excluded, however, by reason of the statute, which requires wills to be in writing, and also of the rule that forbids the introduc
The exceptions are overruled.