Metzger's Estate
71 A. 96
Pa.
1908
Check Treatment

Opinion by

Mr. Justice Stewart,

The question here was whether a piece of ground with respect to which partition was asked in the orphans’ court, had passed to the petitioners — here the appellants — as residuary deviseеs under the will of Charles W. Metzger, deceased; or, whether it is included within the testamentary description of two adjoining lots which by the same will were specifically devised to the appellee and anothеr. If the disputed ground is embraced within the specific devise, then, the petitioners being without interest, were without standing, and the proceedings in partition were properly dismissed. Since it was a question of identifying the thing, specifically devised; the case was one which properly called for parol evidence to enlighten the court with respect to matters of which, when made known to it, it would take judicial cоgnizance so far as not to require special proof that the testator did, in point of fact, dictate his will with reference thereto. But it was submitted on bill and answer, without a particle of evidence extrinsic to the will. This was *281because of a mistaken view entertained that, since there was no apparent ambiguity in the testamentary description of the ground specifically devised, parol evidence was inadmissible. The learned judge in the opinion filed gives us clearly to understand that this was the view taken by the court; and the fact that there was no evidence offered can be explained only on the ground that counsel were of the same mind. It is made apparent, not by anything in the record, but by the argument made before us, and the opinion filed, that the contentions of the petitioners were, that even cоnceding for argument’s sake, that the primary meaning of the words employed in the will to describe the ground specifically devised would include the disputed ground, any attempt to fit the description ‍​‌‌​‌​​​‌‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​​‌‌​‌​​​​‌‌​‌‌​​​​​​‍in the will, accоrding to such primary meaning, to the property devised, would necessarily encounter a want of correspondence because of changed physical conditions existing when the will became operative. In other words, their contention was that there was a latent ambiguity in the testamentary description of the ground devised. A latent ambiguity can only be developed by extrinsic and collateral сircumstances, and it is always competent to show that such ambiguity exists. '' But a discrepancy, or an accordance, between the whole or particular parts of the description, may be shown by еvidence dehors to create, or to destroy an ambiguity which is said to be latent, because it is concealed by the will, and disclosed but by extrinsic circumstances Vernor v. Henry, 3 Watts, 385. “When such latent ambiguity has once been made dehors the will, then the way is open for parol testimony to whatever extent may be necessary to remove it:” Brownfield v. Brownfield, 12 Pa. 136; Brendlinger v. Brendlinger, 26 Pa. 131. While the view taken by the court with respect to this matter was a mistaken one, it is not made a subject of exception, and is not brought to us for review by any assignment. The effect of it was to limit the inquiry to the terms of the will itself; the court having ‍​‌‌​‌​​​‌‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​​‌‌​‌​​​​‌‌​‌‌​​​​​​‍nothing else before it. The learned judge оf the orphans’ court somehow, certainly not from the pleadings in the case nor yet from the will, but with the submission of the parties, as the argument shows, derived the fact that the ground in dispute is composed *282of the rеar ends of two adjoining lots fronting on South Queen street in the city of Lancaster, both of which — however the fact may now be — originally extended back about 245 feet to a public alley in the rear. But for this faсt, judicially imported into the case, disclosing as it does the location of the disputed ground with reference to that admittedly within the specific devise, no correct understanding of the real dispute would have been possible. For all that appears in the pleadings the one may have been miles away from the other, as was the case in Brendlinger v. Brendlinger, supra, a circumstance which there prоved to be a controlling consideration. We take the case as it is thus presented, and it remains only to be determined from the will itself, whether the disputed ground falls within or without the description of the lots devised tо the appellee and her cotenant. The lots are separately devised, one in the main body of the will, and one in the codicil. The first devise is as follows: “I give devise and bequeath my home, being my dwelling house, and lot of land attached' thereto, to my sister, Mary E. Metzger, together with all the contents thereof, during her lifetime, as a home for herself and my niece, Clara Rogers, and after the death of my sister, Mary, if my niеce, Clara Rogers, survive both my wife and my sister, Mary, I give, devise and bequeath the said premises to her and her heirs absolutely with its entire contents.” The devise in the codicil reads thus: “I give, devise and bequeath to my sister, Mаry E. Metzger, and my niece, Clara Rogers, and their heirs in fee the dwelling house and lot of land No. 135 South Queen street, now occupied by my nephew, John Metzger, and the land attached thereto, after the death of my wife.” With respect to the first, it is only necessary to remark that the will itself furnishes not merely an intelligible and sufficient description whereby the thing devised may be identified with reasonable certainty, but the description is sо definite that without some extrinsic evidence tó show that lot No. 133, when the will became operative, was not of the dimensions it had been when the testator acquired it — as that another lot had been carved from it and given another and distinct designation by number or otherwise —it is impossible to fit the description in the will upon anything *283else than the entire lot as it was when testator acquired it. The description of the lot devised in the codicil, while it is by number as in the case of the former lot, does not stop with such designation, but indicates the lot as the lot “now occupied by my nephew, John Metzger, and the land attached thereto.” If by the words “land attached thereto ” is meant land attached to the original lot No. 135, then clearly the reference is to land not involved in the present controversy; if the reference is to a part of lоt No. 135, which because of its appropriation and separate uses by the testator in his lifetime, was not when the will became operative in the occupancy of the nephew, then the words еmployed, if not strictly necessary to an inclusion of such part of the lot in the devise, at least made the inclusion more definite and certain. In the one case they are of no significance in the present contention; in the other, the only meaning to be given then makes against appellant’s contention. Again- — if in point of fact the nephew, John Metzger, was not in the occupancy of the entirе lot No. 135, at the date of the will, such fact, if shown, would be entitled to consideration ‍​‌‌​‌​​​‌‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​​‌‌​‌​​​​‌‌​‌‌​​​​​​‍in any effort to fit the testamentary description to the thing devised. But here again we are utterly without evidence as to the situation and surroundings at that time. We are only permitted to know what the will tells us, viz., that lot No. 135, occupied by the nephew, John Metzger, was devised to appellee and her cotenant. It is a well-settled rule that where a devise contains a plain and certain description of the thing devised, and this is followed by a reference to occupancy as an added description, such reference is to be regarded as a defective description if it indicates less than what is embraced in the prior plain certain description. The rule is thus stated by Mr.. Jarman in his treatise on Wills, vol. 2, page 390: “Where the description is made up of more than one part and one part is true, but the other false, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected.” We are permitted to knоw exactly what lot No. 135 contained when the testator acquired it, and are without anything, either in the will or extrinsic to it, to show that it was ever reduced in size. The description by number is plain *284and certain as a testаmentary description. Confining the inquiry to the will itself, and interpreting it in its own light, it is impossible to reach any other conclusion than that the devise to' the appellee and her cotenant covered lots Nos. 133 and 135 in their original entirety, extending from South Queen street to the public alley in the rear, thus embracing the ground in controversy. This disposes of the only two questions raised by the assignnlents of error.

Upon the argument it was strongly urgеd upon us that the question with respect to the appellant’s ownership of the ground under the devise, was res adjudicata. Indeed, appellant’s main reliance was on this position; and undue confidenсe in its sufficiency may in part explain the failure to support their contention by parol evidence which was within their reach. But unfortunately for ‍​‌‌​‌​​​‌‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​​‌‌​‌​​​​‌‌​‌‌​​​​​​‍appellant there is nothing in this record, whether pleadings, evidence, exception or assignments, which brings to our attention any adjudication with respect to the subject of this controversy other than that appealed from. In the argument we are referred to an appeal from’the orphans’ court of Lancaster county adjudicated in the Superior Court, in the case of Smith v. Metzger, 32 Pa. Superior Ct. 596, which it is claimed is conclusive of the controversy. While the question of res adjudicata is not properly before us, and while the case referred to is therefore not for present' consideration, we have so far yielded to the earnestness with which appellant’s contention is pressed as to give the case referred to full consideration. Unappealed from, it is conclusive as to what was involved in the case; but that was nothing more than the particular fund which was before an auditor for distribution. However much the question of title may have been considered by the court in determining the ownership of the fund for distribution — rents from the disputed ground — the decision settled nothing as to the title itself. We express no opinion as to the correctness of the court’s reasoning and conclusions upon the question of title in that case. All we decide is that there is nothing in that case to conclude the appellee in this.

The order of the court is affirmed; the appeal ‍​‌‌​‌​​​‌‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​​‌‌​‌​​​​‌‌​‌‌​​​​​​‍is dismissed at the costs of the appellants.