*1 '1885. 210.
Syllabus. of revision 18'TOtbe insolvent- law was reenacted is formally (cid:127) immaterial.- If those had laws entirely then been enacted for would, time, the first so far as they inconsistent with the bank act, have been while that act rupt inoperative remained force, but its would have come into upon repeal The en operation. of actment the insolvent law of life during bankrupt act would have been tantamount to a merely provision former should take effect on the fol latter. repeal lows since the act all repeal bankrupt provisions. (cid:127) of the- insolvent of Louisiana have Valid law been and opera \ tive. said, what we have from
Although, appears charge court did not effect of the cession state accurately tibe of the assets of the dissolved firm of A. surviving partners Car-riere& it is -clear that the law Sons, and the facts yet upon The error of the court, jury right. the..verdict therefore, works the no not a does plaintiff injury, require . reversal of the the attachment. v Brobst judgment dissolving Brock, Wall. 519; Construction Co. Phillips Seymour, S.U.
Judgment affirmed. PATCH v. WHITE. TO THE SUPREME COURT OF THE OE
ERROR DISTRICT COLUMBIA. Reargued January Argued November 12, 1885. 13, 14, 1886. March 1, 1886. Decided will, evidence, ambiguity in maybe A-latent a which removed extrinsic may (1) person object arise Either a gift, when names as the or a it, thing subject persons as the and there are things two or that answer or description: (2), name or such when the will contains misdescription subject, object or person thing where there is no such or exist- ence; or, existence, intended, person thing if in is not the one or the belong does to the testator. study language, applied When a careful testator’s the circumstances surrounded, inadvertency which discloses an or mistake in a persons things in a can be corrected without WHITE. PATCH v.
Argument for Plaintiff in’ Error.
language,
making
and thus
adding to the testator’s
different will from
him, the correction should be
by,
that left
made.
which,
saying
estate,”
“and touching
worldly
after
[my]
A made a
dispose
manner,”
give,
following’
same
devise
he de-
*2
thereon,
specific
buildings
lots with
respectively,
vised certain
to each
and,
others,'to
relations,
amongst
of his
brother H a lot
near
described
403,
6,
square
together with
improvements
in
as “lot numbered
.
thereon
to his infant
He then devised
son as follows
erected.”
: “the balance of
estate,
six,
my
to be and to
real
believed
consist in
eight
lots numbered
nine,
lots,
&c.,” describing
3,
a number of
but not describing lot
No.
406,
Held,
square
(1)
hereafter mentioned :
That the testator intended to
estate,
;
dispose
(2)
of all his real
and thought he had done so
That in the
;
giving
devise to H he believed he was
him
(3)
one of his own lots
That
not,
might properly
evidence
be received to show that the testátor did
’ n
did,
6,
403,
square
never
own lot No.
which had
no
there-
406,
;
3,
thereon,
on but did own lot
No.
which had house
oc-
;
cupied by
;
his tenants
raised
this
a'latent
and that
evidence,
taken in connection with the context of the
was suffi-
show
cient to
there was an error in the description, and that the lot
3,
really
devised
lot No.
was
406.
at issue
construction of a
Ejectment.
of which are
forth
set
principal parts
opinion
of the court. The case was first
1885.
November
argued
below was affirmed
court,
a divided
Novem-
judgment
ber 26, 1.885. On the 14th December this
was set
judgment
aside,
made Jan-
ordered, which was
and.a reargument
the same counsel.
uary
14, 1886, by
Mr. John D.
MoPherson
Mr. Calderón
for
Carlisle
; n
cited
error,
Co.,
v. Packet
212
1885.
n Opinionof the Court.
; DoeY.
y.
3 M. & 1H1;
295
S.
Newton
6 Sim.
Greening,
Lucas,
8
Travers,
v.
54;
244;
Miller
Doe v.
B.
Roberts, 5 &
Bing.
Merrick,
Aid.
Merrick v.
37 Ohio
126
407;
St.
Cleveland v.
25 Ind.
Moreland v.
8
95;
Spilman,
303; /SV
Brady, Oregon,
n wwoíZv.
3 Ves.
v.
1
306;
Geary, Ves. Sr.
Mildonay,
255;
2
&
v.
Jac. Walk.
Olark
207;
v.
90
Ley,
N.
Atkyns,
Pentecost
C.
v.
Tucker
Seamarks Aid
629;
Met.
Society, 7
(Mass.) 188;
Button V. American Tract
MR. Justice delivered of the court. opinion for two undivided thirds of a Ejectment lot land in Wash- ' known and on ington City, plats ground plan city as lot 3, 406, No. 50 feet E square Street north: fronting plea, John now plaintiff, Patch, guilty. plaintiff
PATCH v. WHITE.
Opinion of the Court. claims the lot under error, devisee of Henry Walker, James tije Walker. The latter died seized lot and his last dated in devised to September year, Henry- Walker as follows, wit: and bequeath give my dearly- beloved brother, Walker, forever, lot six, numbered Henry four hundred and three, with the square together thereon erected, and thereto appurtenances belonging.” testator did not own lot number in6, but did own square lot number 3, 406, the lot and the controversy; in the cause is, whether evidence offered and parol the court received, sufficient to control provisionally of the lot so as to description make the will to lot apply number 3, 406. The at the trial that it held judge not, instructed the to find a for verdict the de- jury fendant. The court in General Term sustained ruling rendered for -the judgment defendant; is judgment here -writ of error for brought review the bill of upon excep- tions taken at the trial.
The testator, at the time of his and at his making death, had Ann wife, an living infant son, Sophia, James, mother, Dorcas three Walker, brothers, John, Lewis, (the Henry latter eleven only and three being years old), sisters, Margaret Peck, Ballard, Louisa and Sarah McCallion, and no other near relations, all of these are for in his provided will, if the of the lot change given Henry admissible; otherwise for, in a Henry unprovided except be- residuary' in connection quest with personal property others. The fol- are the material clauses of the will. After lowing expressing wishes and with ordinary hopes regard disposal and a future life, testator adds : And body touching *4 estate, wherewith has God worldly to bless pleased Almighty me in this I life, devise, and in same give, dispose and manner form.” He then and following gives bequeaths to his wife one-third of all his estate, forever, and personal the use of one-third of his real estate for life, remainder to his “ bequeath son, infant James. He then I and proceeds give to dear and affectionate my mother, forever, Dorcas Walker, all lot numbered in seven, one hundred and six, square
Opinion of the Court. laid on down City plan Washington, together thereon erected and with all the improvements appurtenances thereto belonging. “ I and to John brother, give my dearly-beloved bequeath all of lot numbered one Walker, forever, six, hundred square and with the brick six, back and all two-story house, building, thereto appurtenances belonging. “ I and dearly-beloved brother, Lewis bequeath give my Walker, forever, lots and twenty-three, twenty-four,- twenty- .iq five, numbered one hundred and six, square with a together brick two-story with basement back building, story building, and all thereto and erected on appurtenances one or belonging more of said lots. “ I and bequeath give my dearly-beloved brother, Henry lot numbered 'Walker, forever, six, four hundred square and three, with the together thereon erected and ap- thereto purtenances belonging.” Then, after to his three and sisters, his giving infant son, other lots with houses respectively, specific thereon, pro- ceeds as follows:
“I son, also and infant James bequeath give my Walker, forever, the balance of real estate believedto be and to my con- sist in and with six, house, lots numbered nine, eight, part brick and erected frame, of said lots, one one part square and hundred lots sixteen; and thirty-one, thirty-two, thirty- numbered three, one hundred and and square forty, erected on one of said lots lots; numbered slaughter-house and numbered eleven, two hundred and eight fifty; and lot numbered' numbered twenty-eight, one hun- dred and seven; further, I bequeath my give infant James son, Walker, one thousand dollars, out paid estate, at my the discretion of personal applied hereinafter for the education of guardian son, appointed, iny James Walker.” He then adds: “ The balance of estate, whatever it my personal be, may desire shall be divided between Dorcas equally mother, my Walker, Sarah sister, my McCallion, brothers, John, my Lewis Walker.” Henry
PATCH v. WHITE.
Opinion of the Court. itself— will fromthe
It clear testator intended to That the of all his estate. dispose had he believed he of it all in 2. That the clauses disposed to the lots clause, residuary except specific prior thereby son. to his given 3. That which he to his "brother, lot number 6, gave Henry, pe he was him 403, one of his own giving square .believed he would not have him a
lots. -On principles, general given did not and lot which he he own; expressly says, touching wherewith- has estate, God to worldly pleased Almighty bless me in this and same in life, devise, give, dispose manner.” following
4. That intended to a lot with he thereon give improvements erected. evidence
Now, discloses the that there fact, was parol, an evident lot intended to be devised. misdescription It shows, first, stated, before at the testator, time death, his and at the time of his did not, and making never own lot hr but did did, 6, 403,. own lot in3, square 406; the former lot had no square secondly, improve- ments on it at all, was located on Ninth Street, between I .and K whilst Streets, which he did latter, own was located on E between Street, and Ninth Streets, had a Eighth house on it, dwelling Toy ten- occupied testator’s ants —a circumstance which the idea that precludes he could have overlooked it.
It seems to us that taken in evidence, connection with as, the whole tenor of the will, amounts' to demonstration to which lot was the testator’s mind. raises latent am- is one of identification between biguity. two to determine which was .in lots, the testator’s mind, whether lot which 406, 3, owned, which improve- had ments thereon, erected and thus with the corresponded impli- cations of the and with part lot, and rendered the devise effective; lot own, he did which had no thereon,' which rendered the devise ineffective.
It is be borne in mind that to. all the other property 1885...
Opinion of' Court. this one testator, house and' lot, was of to his except disposed other at least that devisees, belief in his expressed *6 there.js no to will, evidence the whilst this lot contrary; he believed he had of (though not disposed of it), disposed at unless all, it was devised to his brother, the H'enry, clause' in In view of all question. this,, ourselves placing in the situation of the testator at the of time his will, making can we entertain the doubt that he an error of slightest made so far as the numbers' in description, are concerned, question he or vyhen. wrote, the dictated, clause under consideration? "What he meant to devise awas lot that owned; a lot with on a lot it; that he did not devise to specifically other of his devisees. Did such lot any a exist ? so, If wThatlot was it? We know that such a lot did one exist, such only in world, lot the and that this lot was in in the.lot ' this cause, lot number 406. it namely, Then is not “ most clear that the words will, lot numbered six, four hundred and a three,” contained false description; The testator, “three” mistake, for evidently by “six,” put “ ” six three,” for a sort to which the human mis-speech mind is addicted. It is done perversely even every day Dr. Johnson, in the painstaking his Dic people. preface fits well “Sudden of inadvertence will tionary, says: surprise avocations will seduce and casual vigilance, attention, slight mind will darken Not to eclipses allow the learning.” correction such evident of attention, when there evi slips which to dence correct would be it, old the abrogate maxim of the law: Falsa demonstratio non nocet.” the rule, It that the maxim undoubtedly general just in its is confined cases where there is application quoted will the the intended to identify sufficient be subject of the false so devised, the description, independently effectual without it. But devise would be it should why where case the extrinsic facts disclosed make every apply jnatter of demonstrative that an it error has certainty a crept (cid:127) error is ? course, into and what that Of the description, contents of read circum- light surrounding must to and such correction demand to be stances, made. up lead WHITE.
PATCH Court. Opinion dis- is only as a latent that, doctrine ambiguity is settled extrinsic- removed evidence, extrinsic may closed by - either arise an upon Such may evidence. or a of- thing names á gift, when it object person or two things’ and there are it, persons the subject arise or, secondly, may name or answer such description; or' sub- the will object when contains a misdescription in existence, or as where there is no such thing person ject: or the intended, the one if in is not existence, or, person kind first of am- the testator. The does not thing belong answer- where there are two things equally persons biguity, evidence that will be removed by any may ing description, circumstances, or declarations have that either effect, on Wills, 9, Hawkins Wills, 370; testator. Jarman - if stated, as before Where it consists of misdescription, remain out, can be struck misdescription -enough *7 deal with it will the or the court will to identify person thing, if if an will read as mistake, in that it is obvious or, way; case consists the corrected. The the latter will and intent of the the between the manifest repugnancy In such the of the donee or subject gift. misdescription to show the condition is admissible a case evidence always the circumstances estate, by the testator’s family will. 1 his at the time of. which he was surrounded making ed.; 4th 365 1 on on Wills, Jarman Hoper Legacies, Williams (afterwards Hr. Executors, 988,1032. Williams on “ or Where .the name description Mr. Justice Williams) says: no, is doubt as and there reasonable erroneous, is a legatee the described, intended to be named or who was to the person error be not the may mistake shall bequest. disappoint context of the 2. To a cer- will; 1. the rectified. ... By court ... A tain extent evidence. may by inquire parol to the who claims to into material fact person every relating -the and to the circumstances of interested under the of en- testator, affairs, for the and of his family purpose testa- intended the court to the the. identify person by abling “ on 1032: Mistakes tor.” 988-989. he says, pp. Again page the like those in description description legacies, TERM, 1885. Opinion of the Court. reference to terms of the tie rectified by gift, may
legatees, taken circumstances, and evidence .of extrinsic together. name of testator, Swinburne, of. the error proper says not hurt the doth validity bequeathed, legacy, thing is substance of the cer- so that the or body thing bequeathed instance, tain : for his As, the testator horse bequeaths Criple, of the horse was when the name mistake shall not Tulip; n make the for have the horse void; legacy may legatory by the last for the denomination; testator’s certain meaning should have the therefore, hath horse; if, he the- he thing it is not material if hath 'devised, or the by right name.” See also on wrong Roper Legacies, The rule is laid down Sir James very distinctly Wigram, who A says: false description, though with part, may, reference to extrinsic circumstances, be certain, or absolutely at so least to enable a court to sufficiently identify subject as intended; where false one superadded itself would have correct. if Thus, b.een a testator horse, devise*his black one, or only white devise having houses, freehold leasehold only having houses, white horse in the one case and the leasehold in the other would .houses In these cases the substance clearly in- pass. subject tended is if certain, and there is but substance, one such false, introduces no superadded description, though ambiguity, .and, words are supposition rejected inapplicable the court does not alter, or any add subject, vary, effect will them.”' rejecting Extrinsic Wigram 53. Of Evidence, course when the author of the re- speaks words jected being inapplicable any he means subject,” because the inapplicable subject existence, does not *8 to the testator. belong case the Roman Catholic v. Asylum Em Orphan
3mons, Bradford, 144,which arose before of New Surrogate York, well illustrates of the rule. There a tes application tatrix her shares of the Mechanics’Bank bequeathed stock to She had bank Orphan no stock Asylum. ten shares except Bank. in Bradford, a learned City Surrogate opinion, held the word “Mechanics” must be rejected that inappli-
PATCH v. 219 WHITE.
Opinion of the Court. ever tbe and the re testatrix, .to owned cable any property left bank this word tó any bequest operate upon jection Bank and so shares. her, stock City pass possessed note of Chief Justice 10 Am. Law Bedfield, See also a learned to the of Kurtz v. 93, Hibner, N. S. case Ill. 514, Reg., the decision in that case. which he strongly disapproves . Lessee, Justice v. Pet Marshall, King's Chief Finlay that underlies all rule others. 377, down lays general “is the cardinal rule in testator,” he, “The intent says can be intent and if that wills; clearly the construction rule of it law, and is not some positive contrary perceived, to it some words effect should must giving although prevail; in their or so restrained materially application, rejected, sentence.” the literal particular meaning change it is our to review or But intention decisions. classify the rule as are The intrinsic difficulty stating They legion. as to make it to all cases is such presumptuous applicable nand fix it in the form of to chain it dow one attempt any the authorities a verbal definition. Sufficient from appears no bill lies to that, to show whilst re equity already quoted y can intent dead, form a because its author onl used, has when to the be known from the applied language surrounded, circumstances which he was careful yet. study will of that and of those circumstances generally language disclose or mistake any inadvertency the manner in which be cor should persons things, the testator’s without rected, language, adding anything that different will from left him. thereby making Chief Justice further, We will an observation .of only quote Johns. Sill, of -New in Jackson York, Thompson, discussion. In. to the which is pertinent present very the extrinsic evidence offered to remove case the court rejected in a for the reason latent very good supposed ambiguity that no existed. on examination, appeared, a correct “It -But the Justice said: is undoubtedly Chief justly for the whole will wills, rule in the to look at construction ,the testator the intention of the any purpose ascertaining But where the where such part ambiguous. part, particular *9 (cid:127) TERM,'1885. Matthews, Dissenting Blatehford, Opinion tí-ray, JJ. Woods/ intention is clear and and no certain, be- appears repugnancy tween the different no will, such aid parts necessary course, Of the case of a latent such proper.” can of the means evidence which repugnancy only appear by the ambiguity. .discloses
In view of the announced in these authorities, principles the case under consideration does not any enlargement require of the rule laid the rule down, ordinarily namely, requires in, the will itself sufficient to of the identify subject gift, after out the false on its striking description. face, with the clear taking altogether, context, implications “ ” and without the words, six and three,” devises misleading to the testator’s brother, in substance as follows: Henry, to brother, bequeath beloved my Walker, give dearly Henry forever, lot in, four hundred and —(cid:127), together number — with the thereon erected and appurtenances thereto lot which and not me, belonging being belongs — devised to other In specifically person any my will.” view'of what has there cannot be a doubt of been-said already lot thus devised. its identified identity by its its it, ownership, having improvements being number of which commenced with four hundred, its lot to the testator which he only being belonging did not otherwise of. the words dispose By merely striking'out and “three” from the “six” as not ap- (unless plicable lot which the interchanged) any testator or instead owned; them them to out, striking supposing been blurred have accident so residue illegible, in view of the description, context, so exactly applies the lot in we no have hesitation in question, that it saying was devised to Walker. lawfully Henry is reversed, amd the judgment cause with di- remanded,
rections to award a new trial. Me. Justice Woods, with whom concurred Me. Justice Geay , Me. Justice Matthews, and Me. Justice Blatcheoed, dissenting. h Mr. Justice Mr. Justice Mr. Matthews, Justice Blatc Gray,
PATCH WHITE. >-A -to Blatehford, Matthews, "Woods, Gray, JJ. Dissenting Opinion : tbe cannot concur majority and myself judgment ford court. of tbe in which tbe will an
Tbe suit ejectment action title. Tbe tbe in evidence plaintiff’s property offered prove in four' hundred and three, six, was lot in square controversy Tbe claimed under a in tbe of plaintiff Washington. city and three. Tbe four hundred devise1 of lot six, devise square “ brother, beloved dearly I my bequeath follows.: four hun six, lot numbered forever, Walker, square Henry the therfeon and "with three, dred improvements together The de-' and thereto erected the belonging.” appurtenances the for. Extrinsic does not describe sued evi vise property the was offered the who aid devise dence plaintiff, for the of that it was admissible insisted purpose removing ambiguity. latent the first, are of two kinds: where
Latent descrip- ambiguities is devisee or the devised clear the the upon tion property .of are it turns that there more will, but out than one face of the than to which or one more person description ap- estate devisee second, where the or devised ; and, property plies .as or in some so described, erroneously, respects imperfectly, or is meant.- .to leave it doubtful what-person property if in the devise under that there It is clear any ambiguity n consideration belongs to the latter class. But no there is The devise as lot six, describes premises ambiguity. It hundred and three. is conceded that there is four in the of and but lot one; such a and city Washington, land it is what of and not precise open parcel out. the devise and without of points clearly, language 9th a lot on K street, between and uncertainty, designates of known streets, well on map city Washington, (cid:127) area fixed and whose metes and bounds and are definitely referred to and recorded. platted map approved by and President recorded in Thou- Washington All have and sands been engraved printed. copies made it was of real estate in 'since city put conveyances of title to all the record it is one of the muniments it; refer to estate real city Washington, public private 22-2 Í885.
Dissenting Woods, Opinion Matthews, Blatehford, Gray, JJ. it is better known than probably document on any record the District of Columbia. The of the accuracy description the lot devised is, therefore, matter of common knowledge, which the court even take notice. might judicial
Nor is introduced into any description by Avords“with the thereon erected improvements ap- thereto purtenances testimony belonging,” was offered to at the date the will and of the prove death of the testator the lot described was unim- devise It is the words proved. plain thereon “improvements ” erected were a nature same conveyancer’s phrase the words which immediately them, followed namely, thereto and the whole appurtenances is sim- belonging,” phrase to the words with the ply equivalent improvements ap- The words “with the purtenances.” thereon ” were intended as a .erected part *11 which had been premises, and already described, fully accurately but were a used, as matter-of or out of perhaps, habit, perhaps abundant but in caution, include im- unnecessary grant that be provements might put upon between the premises date of the testator’s will' and the date it when took effect, n namely, at his death. The is one not phrase used commonly .the and so was not in identify used premises, devise. There evidence of this in the will. For persuasive eight other of devises the testator realty describes the particularly character of the in the Thus, devise improvements. to his John brother, Walker, the are described'as a “ ” brick back house, two-story devise building; Lewis Walker as “a brick with a basement two-story building, story ” back in the devise to Peck of four building; Margaret lots, ” “as a frame house erected on lot in; two-story 27 devise “ to Louisa house Ballard, as brick in the ”; devise three-story “ ” in to Sarah frame McCallion, house; devise to of two' as “two brick lots, James Walker houses”; two-story and in the devise to James Walker the testator’s residuary brick and frame,” real estate as a house and a part part There is no that real other slaughter-house.” proof any estate mentioned will There is, was there- improved. " ' 223 , \ PATCH v. WHITE. . Blatchford, Matthews, Woods, JJ. Gray,
Dissenting Opinion: in fore, about the of the lot described no doubt identity devise. used if the words under discussion were carry
But even im- mentioned the devise' the idea property out to be facts would it turned these unimproved, proved. For is a or not make the uncertain. description ambiguous certain, de- that if first a construction, rule of there settled and afterwards another description scription premises, terms, the controls general. general particular description v. 1 Thus, Goodtitle M. & it was held Southern, 299, S. “ all a devise of farm called the oc- nowin my Trogues-farm, ' whole farm it was all C.,” eupation passed though- Travers, in C.’s See also Miller v. 8 244; occupation. Bing. Pears, v. 11 58. East, Goodright
Another well settled in the also rule, law, is. cognate applica and that is that where there is a sufficient here, ble description erroneous will not vitiate the' subsequent addition premises, and we a false demonstration. Doe v. description, may reject 5 B. & Ad. Law v. 10 Conn. 43; 23; Galloway, Hempstead, Mitchell, v. 285 10 N. Y. Texas, ; Mallams, Bass Peck v. 360; 532; Abbott, Abbott v. Maine, 356, Wil Doane C, 396 3 cutt, Jones v. N. 371; Robinson, 78 Gray, on Real Washburn Property, these established sense as well as rules,
Upon general upon that a lot' it is mankind, controversy practice beyond described in the in' would words used the devise' will turn out that the either should deed, pass though lot was is as unimproved. particular pre- cise as' if the street on area, the metes and bounds, which the lot other size situated, every particular *12 , and situation, had been lot is settled identity given.
beyond the authorities cited the is question. Upon description not or of rendered uncertain the use ambiguous by general words with the thereon,” erected even though there be no that the of It follows improvements. description devise, in the premises contained good controversy, and sufficient, rules of free from well settled law,- upon doubt or ambiguity. n (cid:127) .OCTOBER 1885. Matthews, Woods, Blatchford,
Dissenting Opinion Gray, : JJ. It that if is, therefore, the testator beyond had controversy been lot six, the owner of numbered four hundred n it three, would have devise, passed sufficiency could not have been description challenged. only which the therefore, can base his ground, upon con- plaintiff tention that there is a latent is his ambiguity devise, offer to did testator not own the lot described in prove did own but another he did not devise, of dispose will. This does not tend to show a latent It does ambiguity. hot. the accuracy contained impugn fend in the devise. tends a mistake on the show of only part testator his will. This cannot be cured ex- drafting For, trinsic evidence. as Mr. Jarman “As the law says, requires wills, both' of real and estate an (with personal inconsiderable to be in it cannot, exception), with writing, consistently this doctrine, evidence be adduced either to permit parol contra- to, add or dict, the contents will; of such and the explain prin-.. rule this demands an inflexible ciple evidently adherence to it, even where the is a or total failure consequence partial the testator’s intended for it would have been disposition; little avail to that will ah should be in origine require writing, to fence testator with a around wit- guard attesting (cid:127) nesses, if, when written failed to instrument make full disclosure of his scheme its explicit deficien- disposition, cies be or its inaccuracies might corrected, from ex- supplied, trinsic sources.” 4th 1 Jarman on and 5th Wills, eds.,
If there settled law any proposition wills, is, that extrinsic evidence is inadmissible show the intention of unless a latent testator, necessary explain ambig- and a mere mistake is' a latent Where uity ambiguity. there no latent there no extrinsic evidence can ' be received. The cases following support proposition:- Tindal, In Miller v. Travers, Chief Justice of Bing. Pleas, the Common Chief Baron of Ex- Lyndhurst, in to were called assist Lord Chancellor. chequer, Brougham, Their was delivered Tindal, Chief Justice. joint opinion The case was this The testator devised all his freehold and real estate in Limerick and of Limerick. county city
PATCH v. WHITE. 225 Woods, Matthews, Dissenting BlateMord, Opinion Gray, JJ. testator had estate the
The no real of but Limerick, county of his real estate lands in consisted the of which Clare, county were not mentioned in the and a small estate the of city Limerick, meet the in the will. The inadequate charges .to devisee offered to show evidence that the estates by parol the of Clare were inserted in the to county him, devise the first draft of the which was sent to a to conveyancer make certain alterations not those that estates; affecting by he erased the words Clare,” that county mistake the after testator, the will him for some time, executed keeping it without to alteration as to that adverting county.
case was considered on extrinsic evi- assumption if dence, would show that admitted, Clare was county omitted and that the land mistake, was- county in.that intended to be included in the devise. But evidence Was held inadmissible to show that to the testator intended devise which had'been omitted mistake. property So in Box v. Barrett, 244, Law Lord Ro Rep. Eq. Master of the Rolls, said: “because testator milly, has (cid:127) made a mistake cannot afterwards remodel the will and you make that which and as intended, he would you suppose h^ drawn it if have he had known the incorrectness his suppo sition.”
In Jackson v. Sill, Johns. was an 212, which action the defendant ejectment, claimed under the devise following testator’s wife: also said beloved wife give my which I now farm with the whole occupy, together &c. crops,” of his will In the testator mentioned subsequent said .part as his It turned out lands. that the in con- premises premises were, at the will the time and at the death troversy made, under testator, one a lease' possession Salisbury seven for offered to show testimony .years! plaintiff testator intended devise the as a part premises which he himself and of he died farm occupied possessed. court, of this Justice afterwards a Justice Chief Thompson, “ I think it : n said to notice unnecessary delivering judgment, if for it is obvious offered; that, the evidence particularly that of it would Yechten, Mr. Yan competent, especially . Woods, Matthews, Blatchford, Dissenting Gray, Opinion: JJ. have shown that the intended the testator were premises drawn, *14 devised the defendant Sill. The will was how- Mr. under of facts, Yan ever, Yéohten by misapprehension under a belief that the testator the actual was possession It a clear case of as I is, therefore, mistake, premises. ap- and under this belief I have searched for prehend, industriously some that would bear me out in in the evi- principle letting offered dence but I have in- searched and am vain, satisfied cannot admitted a court law, without testimony the wise and statute violating salutary wills, provisions down what have been considered the land- breaking great marks law on this subject.” In Tucker v. Seaman’s Aid Met. Society, 7 (Mass.) testator to the Aid Seaman’s gave legacy Society Boston,” which was the correct name of City society. The was claimed, however, another called legacy by society the Seaman’s Friend Shaw, Chief Justice Society. stating also, said case, It is we well the circum think, proved by stances attended execution preceded as shown extrinsic was by evidence, that the intention of the ‘ to testator make the to the Seaman’s bequest Friend and at the time of the execution of the Society,’ will he had believed done so“that the testator was led into this mistake him erroneous information honestly given ” “ Mr. Baker who drew his acted will; the testator on this erroneous as to his real purpose, information —erroneous it now appears evidence—and made the to. the bequest Seaman’s Aid their name and Society by precise designation.” court, held that was therefore, there a mistake and simply no latent and that extrinsic evidence was ambiguity, inadmis sible. extend this unnecessary other extracts opinion by
from the cases. The adjudged we have made are quotations from masters of'the law.. The additional authorities following will be found we sustain have stated: proposition Chey 68; 5 Case, v 3 ney’s Oxenden, . Taunt. Smith v. Rep. 147; Doe 1 Jr. Maitland, 362; Ves. v. Chambers 4 Ves. Minchin, Doe 4 note; v. Westlake, B. & Ald. v. New 57; Newburgh
PATCH v. WHITE. 227 Matthews, Woods, Dissenting Opinion: Blatchford, Gray, JJ. v. Keen, 5 Madd. Clementson 1 309 364; ; Brown
burgh, Gandy, 3 v. Saltonstall, 423, 426; Mann, Met. v. 1 Mann Johns. (Mass.) Ch. Yates v. 1 Jones v. 231; Cole, 110; Walston C.) Eq. (N. v. G. & J. Chew, Cesar Fitz White, 297; 127; Maryland, 55 Ill. Iowa, Hibner, Kurtz 674; v. Fitzpatrick, patrick is, that, Our conclusion as the evidence offered and therefore, for the a latent rejected purpose explaining when there was no either latent patent, ambiguity, rejected. properly what allows, of the court this case seems opinion out devise,
us to be amended be an unambiguous striking and the blank devised, sufficient premises thus made to be' filled based ex by ingenious conjectures trinsic in the face of statute of evidence1. This is frauds *15 force in the Columbia, District of where in con premises. are situate. after the troversy devise Fifty years unequivocal testator, written and executed re question, had, law, been quired records of the District for placed upon the information of and incumbrancers, subsequent purchasers it is allowed to be erased, and, and inference, a by argument new one substituted in its This place. construing will of the testator will for him. making
The decision of the court title of real estate subjects the all the chances, the fraud uncertainty, attending admission in order to effect parol to what testimony, give the court thinks was the intention of the .he but which testator, failed to in the manner express law. required by