Moreland v. Brady, 8 Or. 303

Moreland v. Brady

8 Or. 303 | Or. | 1880

By the Court,

Boise, J.:

This appeal is taken from a decree rendered by the circuit court for the county of Multnomah, in favor of the respondent and against the appellants. The suit was brought to quiet the respondent’s possession and title to lot number three in block one hundred and eighty-seven, in the city of Portland, against Matthew Brady and George Brady, who sues by his guardian, James Wilson. The appeal is taken alone by Matthew Brady. The parties all claim to derive title from one Bernard Brady, late of Multnomah county, deceased.

The facts established by the evidence are as follows:

1. That Bernard Brady made his will on the twenty-ninth day of October, 1862, and died at the city of Portland, Oregon, on the thirty-first day of October, 1862. It was admitted to probate in the county court of the county of Multnomah on the seventh day of November, 1862, and his estate has been duly administered upon.

2. The fourth clause of his will is, so far as is material, as follows: “As also a certain parcel of ground or lots in the city of Portland, and numbered as follows, to wit: No. block, 187, one hundred and eighty-seven, lot No. (2) two, I bequeath to Margaret McGill.”

3. Sixth clause of will: “I also bequeath to my sister Esther Brady, that lot or parcel of ground, in the city of Portland, as here described, lot No. (1) one, in block (187) one hundred and eighty-seven—otherwise its value.”

4. Twelfth clause of will: “The remainder of my estate and effects I bequeath to be equally divided between my *311brother, Matthew Brady, and Margaret McGill, and George A. Brady, orphan child of John Brady, deceased.”

5. That Bernard Brady did not, at the time he made his will or died, or ever, own, or claim to own, or have any interest in, lots 1 and 2 in block 187, or either of them, but did, at the time he made his will, and when he died, own lots 3 and 4 in the same block by an equitable title derived from Jasper W. Johnson, under an instrument in writing, dated October 4, 1862, executed and acknowledged by the said Johnson and his wife, and in all respects a perfect deed, except that no seals were affixed to the grantors’ signatures.

6. That, on the nineteenth day of March, 1878—during the pendency of this suit—for a nominal consideration, and on purpose to correct the alleged error of the want of a seal in the preceding deed, and upon the representation of Matthew Brady, this defendant and appellant, that he, the said Matthew Brady, was the sole heir of the said Bernard Brady, and the bona fide owner of the premises, the said Johnson and his wife duly executed a good and sufficient confirmatory deed to the said Matthew Brady of said lots 3 and 4 in said block 187.

7. The respondent introduced in evidence a power of attorney, executed in Ireland by Esther Brennan and her husband, John Brennan, to Margaret McGill; and a deed from Esther Brennan and John Brennan, her husband, by Margaret McGill, attorney in fact to James N. Lyon, and a chain of conveyances from Lyon to respondent, and offered in evidence a certified copy of the will of Bernard Brady, and probate thereof.

One of the witnesses signs by making his mark. The signature of Bernard Brady and the attestation of the witnesses are as follows:

Witness His

The signature, Bernard X Brady.

Patrick Macken. Mark.

The above instrument of three pagés was now here subscribed by Bernard Brady to be his last will and testament, and he then acknowledged to each of us that he had sub*312scribed tbe same, and we, at his request, signed our names hereto as attesting witnesses.

Patrick Brady,

Residing at Portland, Or.

His

Daniel X McGill,

Mark.

Residing at Portland, Or.

Witness to this will and testament of Bernard Brady, .

Patrick Macken.

It is claimed by tbe appellant tbat tbe will of Bernard Brady is void, because it appears tbat be signed it by making bis mark, and tbat some other person signed his name to tbe same without stating tbat be signed tbe testator’s name at bis request, and as a witness, as required by tbe statute of Oregon. Tbe manner in which tbe will was signed by tbe testator, and attested by tbe subscribing witnesses, was in substantial compliance with tbe requirements of tbe statute in tbat respect, as was held by this court in Pool v. Buffum (3 Or. 438), to which we refer as decisive of this point.

But it is further claimed that tbe devise is void on account of a false description of tbe lots intended to be devised, and tbat no parol evidence is admissible in aid of its construction. While it is conceded to be tbe general rule, tbat oral evidence is not admissible, to explain or vary tbe words of a written instrument, there are so many exceptions and qualifications of tbe rule, tbat no case is tried where tbe force, operation, and construction of a written instrument are concerned, tbat oral evidence is not received in aid of its construction. Tbe rule excluding oral proof in explanation of written instruments, applies to tbe language of tbe instrument, and not to its import or construction. (1 Greenleaf Ev. sec. 277.) But tbe written instrument “ may be read in tbe light of surrounding circumstances,” in order to more perfectly understand its true meaning.

It is very common “ to receive oral proof to show tbat language was used in a peculiar sense, or tbat one term was used for another; or tbat an essential term, to make tbe defi*313nition perfect, was wholly omitted or erroneously stated. These corrections are every day made by courts in fixing the construction of wills and other written instruments, by aid of extraneous evidence in regard to the state and condition of the subject-matter of the devise or of the devisee, in regard to one or the other.”

Wills are frequently made during the last sickness of testators, and they too often depend wholly upon memory for description of their lands, and in consequence they are liable to great indefiniteness and occasional error. And on looking into the many cases decided, we find that courts have for a long period of years been compelled to deal with these descriptions in a very lenient manner, in order to reach the true intent of the testator “where that seemed practicable by the act of construction, and by the admission of oral evidence to remove latent ambiguities.”

Mr. Redfield says: “One rule upon the subject is so thoroughly established as to have become a maxim in the law, Falsa demonstratio non nocet. The practical meaning of which is, that however many errors there may be in description, either of the legatee or of the subject-matter of the devise, it will not avoid the bequest, provided enough remains to show with reasonable certainty what was intended.” (Redfield’s American cases upon the law of Wills, 544; Roman Catholic Orphan Asylum v. Emmons, 3 Bradf. Sur. R. 144; Jackson v. Sill, 11 Johns. 201-218; 1 Redfield on Wills, 580.)

Then we apprehend there can be no question of the admissibility of extraneous oral evidence to show the state and extent of the testator’s property, in order to place the court in the same position the testator was in at the time he made the Avill in question. This, Ave think, is unquestionably the rule established by the decided cases. This being done, it appears that the testator had no such lots as those described as lots 1 and 2 in the particular block named. This renders it certain that the lots named were erroneous, and the words describing them can have no possible operation, and must be rejected. The devise is the same as if the numbers of the lots had not been mentioned at all or *314had been named and the numbers left blank. We are then compelled to fall back upon the remaining portion of the description, to wit: “A certain parcel of ground or lots in the city of Portland in block No. 187;” also “that lot or parcel of ground in the city of Portland in block 187.” And by thus planing ourselves in the position of the testator, by oral evidence, at the time of the execution of his will, we find that there were two lots or parcels of ground in the city of Portland, and in block 187, belonging to the testator at that time and also at the time of his death. This renders the devise entirely certain from the language of the will as to the intention of the testator. The description would have been sufficient by merely naming the block and city in which the lots or land lay without specifying the numbers of them. The testator could not have intended to devise lots to which he never had any title, but must have intended to devise those which did belong to him. He had two just such lots or pieces of land as he names, and every way described as these are, with the single exception of this one false particular, and this is the very kind of case to which the maxim falsa demonstratio non nocet applies. (Allen v. Lyons, 2 Wash. C. C. 475; Winckley v. Kaine, 32 N. H. 288; Myers v. Riggs, 20 Mo. 239; The Domestic and Foreign Missionary Society’s Appeal, 30 Penn. St. 425; Button v. The American Tract Society, 23 Vt. 336.) In Winckley v. Kaine, supra, the devise was of “ thirty-six acres, more or less, of lot thirty-seven in the second division of Barnstead,” and it appearing that there was no such lot in that division, but that the testator owned land in lot ninety-seven in that division, it was held to pass under the will. In Allen v. Lyons, supra, the devise was of a house and lot in Fourth street, Philadelphia. But it appeared on oral proof admitted by the court that the testator had no such property in Fourth street, but did own a house and lot in Third street, and it was held to pass under the devise.

While it is admitted that the court might go thus far in safety under the authorities, it is claimed that the devise can not be sustained because it can not be ascertained from the language of the will which lot the testator intended to *315give to Esther, and which to Margaret, To this we answer that it does appear that he intended to give each one a lot, and the evidence disclosing that there was no particular difference in the situation and relative value of the lots, it may be presumed that they took them in common; that each was to have an interest in both lots. And the sisters having amicably arranged between themselves as to which lot each one would take, we are unable to see which interest the appellant had in that matter.

But it is further claimed that respondent has failed to show title to any interest which Esther Brennan might have had in the premises described in the complaint, for the reason that she, being a married woman, could not convey real property by an attorney in fact. It appears in evidence that a power of attorney was executed in Ireland by Esther Brennan and John Brennan her husband, to Margaret McGill, fully authorizing her in their names to convey her title to the property in question. Said power of attorney being duly acknowledged by Esther Brennan and her husband before an officer with authority to take such acknowledgments, also a deed from Esther Brennan, and John Brennan, her husband, executed in their names by the said Margaret McGill, their attorney in fact, to James N. Lyons, which deed constitutes a link in the chain of respondent’s title. The question presented is that Esther Brennan, being a married woman, could not convey her interest in the property through an attorney, notwithstanding her husband joined with her in the execution of such power. Misc. Laws, p. 515, c. 6, tit. 1, sec. 2, provides that “a husband and wife may by their joint deed convey the real estate of the wife in like manner as she might do by her separate deed, if she were unmarried.”

The California statute contains a section like this, and the courts there hold that a married woman can not invest another with power to convey any interest she may have in real estate in the absence of any statute to that effect. Section fifteen of our statute provides that “when any married woman, not residing in this state, shall join with her husband in any conveyance of real estate situated within this *316state, tbe conveyance shall have the same effect as if she were sole, and the acknowledgment or proof of the execution of such conveyance by her may be the same as if she were sole.” The California statute had no such section as this.

Thus it will be seen that under this section Esther Brennan and her husband, residing out of the state, could have joined in the execution of a deed to the property in question, which would have been sufficient under the law to convey any right she had therein. In this state there is no statute prohibiting a married woman with investing another with power to convey any interest she may have in real estate; and we are unable to see any good reason why the section above referred to should be construed to have that effect; and especially when we take into consideration that the tendency of modern legislation and modern decisions is to remove the disabilities imposed by the common law upon married women.

Entertaining the views herein expressed, it follows that the decree of the court below should be affirmed.