| Ala. | Dec 15, 1882
— Certain outside facts, it would seem, might have been proved in this ease, which would have rendered the construction of the will much more easy and satisfactory. It was not competent to prove the intention of' the testator by parol proof. It was competent, however, to prove the state of, his property, and any other attendant, cognate facts, as aids in arriving at his intention, when it is not clearly expressed. The truth of these outside, collateral facts, if shown by parol testimony, is for the jury to determine.. Their influence, as factors in interpreting the instrument, if admitted, or when proved and found, is for the court. In Chambers v. Ringstaff, 69 Ala. 140" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/chambers-v-ringstaff-6511095?utm_source=webapp" opinion_id="6511095">69 Ala. 140, we declared the rule in such cases. The .presiding judge should instruct the jury to ascertain if certain facts are proved to their satisfaction ; and if so proved, the judge informs the jury what the meaning of the writing is. Such facts, so found by the jury, enable the court to determine the proper interpretation of the instrument. The form of such charge is: If you find a certain fact or facts, naming them, are shown to exist, then I instruct you, as matter, of law, that the writing means so and so. This preserves to the court its proper function of interpreting writings.
The will, in the present case, very clearly and unmistakably devises to L. L. Simmons the west-half of the north-east quarter of section twenty-two (22). This land is easily located. It subsequently devises to S. M. Grigsby “ all of s. w. ^ of section 15, south of the creek, commencing at Edmond’s house, running east to walnut tree, thence to creek, supposed to contain 38 acres.” In a later clause in the will is this language: “ To my wife, Barbara W. Simmons, her life-time, and at her death to my son, W. T. Simmons, . . all of section 22 on the south side of the creek, except 38 acres given to my grandson S. M. Grigsby.” It is known that section 15 adjoins section 22 immediately on the north. It is also known that the south-west quarter of fifteen, and west-half of the north-east quarter of twenty-two do not adjoin. The devise to Grigsby is of lands south of a creek, which must cross section 15, and its course must be somewhat east and west. The devise to W. T. Simmons is also of lands on the south side of a creek. Whether there are two creeks, or whether by meandering the same creek crosses each of the subdivisions, the record does not inform ns. The description in each of these two bequests calls for a common designation — south of a creek. The devise to W. T. Simmons contains this rather remarkable error. It gives him, after the death of his mother, all the lands the testator owned
If there had .been proof that Lewis Simmons, the testator, owned other lands in excess of 38 acres, lying in section 15, south of the creek, this would have been a strong confirmative circumstance, tending to show the testator spoke of section 22, when he meant 15, and would operate as a devise of ail of section 15, south of the creek, less Grigsby’s 38 acres, to W. T. Simmons. If the testator owned no such excess in section 15, this would leave the error and ambiguity of the will unexplained. So, the quantity of land he owned in section 22, its location, and the number of creeks and places of their crossing, may ali shed light on the intention of the testator. In the absence of other proof than that shown in this record, we think the devise to W. T. Simmons is too obscure to impair the clear language found in the devise to L. L. Simmons.
Beversed and remanded.