121 Ga. 836 | Ga. | 1905
The testator gave to his wife a life-estate in all his property. He then undertook to dispose of the remainder interest therein, giving to the heirs of I. 0. Oliver the fee in all of the property, one of such heirs being given, in addition to an equal share, a lot of land which is described as “lot of land (78) in the second district of Dooly county. ” It appears that the testator did not own lot 78. The description “lot 78” is therefore false) and, under the maxim falsa demonstratio non nocet, may be rejected, provided after so doing there is a sufficient description
Likewise ambiguities in a will, both latent and patent, may be explained by parol. Civil Code, § 3325. A latent ambiguity, says Lord Bacon, is “ that which seems certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter, outside of the deed, that breedeth the ambiguity.” See 1 Jarm. Wills (Am. Notes), t. p. 743. This definition was applied in Walker v. Wells, 25 Ga. 141, where it was held that a grant to “ Berry Stephens, an orphan, ” might be shown by parol evidence to have been intended to be a grant to the orphan of Berry Stephens, there being such a person in life, and there being no person answering the first description.
But while parol evidence is admissible to raise a latent ambiguity in a description and then explain it, in every case the intention of the maker of the instrument must be gathered from the instrument itself, read in the light of the parol evidence. Of course it is' not permissible to create a devise or bequest by parol; but the parol evidence must show what the testator’s real intention was from the language used. Thus language which is suceptible of two meanings must have been intended to mean only one; and the question to be decided in each case is, which of the two meanings did the testator intend should be given it. If this double meaning is apparent on the face of the instrument, then the ambiguity is a patent one. If the language is apparently not of double meaning, but is shown to be so only by the aid of collateral or extrinsic facts, the ambiguity is latent. While the general rule is that only latent ambiguities are explainable by parol evidence, under our code either a patent or a latent ambiguity
There are many decisions dealing with questions similar to that raised by the present record. In Judy v. Gilbert, 77 Ind. 96, 40 Am. Rep. 289, a will described property as the “northeast quarter of the southwest quarter ” of a section of land. It was held that parol evidence was not admissible to show that the “northeast quarter of the southeast quarter ” was intended, even though it appeared that the testator owned no such land as that described and no other land than that which it was claimed he intended to devise. In the opinion it was said: “There is no mistake here upon the face of the will which is here subject to investigation. There is no latent ambiguity. The property devised is accurately described. The claim is not that there is an inaccurate description apparent upon the face of the will, but that the testator ought to have described some other property. The court is asked to admit parol evidence to show that although the testator described with perfect accuracy one parcel of land, he meant another. The bare statement of the appellant’s position exposes its hostility to fundamental and salutary principles of jurisprudence.” To the same effect are Bingel v. Volz (Ill.), 16 L. R. A. 321; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674, 14 Am. Rep. 538; Kurtz v. Hibner, 55 Ill. 514, 8 Am. Rep. 665; Ehrman v. Hoskins, 67 Miss. 192, 19 Am. St. Rep. 297; Sherwood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757. See also, in this connection, Venable v. Burton, 118 Ga. 156.
There are, however, decisions which are not in all respects in accord with those just cited. Some of them will be found, upon a close inspection of their facts, to be distinguishable, while others are wholly irreconcilable with the cases just above referred to. All of them purport to be based upon the intention of the testator
In every one of the cases where the parol evidence was admitted there was some general description, other than the false description, sufficient to identify the property intended to pass. In every one of the cases it distinctly appeared that in the district •or block or other area mentioned the testator owned no other property than that which it was claimed he intended to devise, and that he did not own property answering to the description claimed to be false.
In the present case it is distinctly alleged that the testator did not own lot 78 in the second district of Dooly county. ' But to have made the evidence admissible it should have been alleged ■also that the testator owned only one lot in the second district of Dooly county, which lot was number 68. If this had been alleged, the court might well have said, as against the demurrer, that inasmuch as it is manifest that the testator intended to devise a lot in the second district of Dooly county, he must have intended lot 68 to pass, because that was the only lot in that district and county which'he owned. But the petition not only fails to allege that lot 68 was the only lot owned by the testator in that district and county, but it avers that he owned lot 68 in the second district of Dooly county “ and other lands adjoining.” This
Judgment affirmed.