SMITH v. KIMBALL

E. M. Smith, for the executors.

A. S. Wait, for the claimant. In this case, the bequests in question being to "the Meredith Institution located at Meredith, N.H.," and there being no institution in the town of Meredith capable of taking them, nor any there or elsewhere, except the Kimball Union Academy located in the village of Meriden, which claims to be the intended object of these bequests, the latter institution claims to be the one intended by the testator; and the question is, whether extrinsic evidence can be resorted to in aid of the interpretation in support of this claim, and, if so, whether the evidence offered is competent for that purpose.

I submit that this will presents a clear case of a latent ambiguity, and, as such, open to parol proof in explanation. So far as appears upon the face of the will taken by itself, there is nothing apparently ambiguous about it. It is only when the object of the testator's bounty is sought that the difficulty becomes developed. The question being raised solely by evidence dehors the will, it may be explained by the same species of evidence. This being one of the most elementary doctrines of the law, does not require to be supported by the citation of authorities: that this is a case within the rule seems to me equally plain with the rule itself. But there are abundant authorities directly applying to the case now in hand.

The cases of Masters v. Masters, 1 P. Wms. 421, S.C., 2 Eq. Ca. Abr. 366, Bradwin v. Harpur, Amb. 374, and Beaumont v. Fell, 2 P. Wms. 141, 142, S.C., 2 Eq. Ca. Abr. 366, are strong and direct, and, unless their authority is to be denied, are decisive in favor of the reception of extrinsic evidence for the purpose here claimed.

The reasoning of the judges in Thomas v. Thomas, 6 T. R. 671, is strongly in the same direction. Le Chevalier v. Huthwaite, 3 B. A. 632, Lee v. Pain, 4 Hare 251, 253, Blundell v. Gladstone, 1 Ph. Ch. 279, Doe v. Allen, 12 Ad. E. 451, Charter v. Charter, L. R. 2 Pro. Div. 315, S.C., L. R. 7 H. L. 364, sustain the earlier cases, and would seem to settle the law in England in this direction. Hiscocks v. Hiscocks, 5 M. W. 363, is not in conflict with this view, but altogether sustains it.

The fifth proposition of Sir James Wigram, in his book on Extrinsic Evidence, is, — "For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator's words."

Says Prof. Greenleaf (1 Ev., s. 287), — "In the simplest case that can be put, namely, that of an instrument appearing on the face of it to be perfectly intelligible, inquiry must be made for a subject-matter to satisfy the description." See, also, note of Redfield, J., to Kurtz, v. Hibner, 10 Am. Law Reg. N.S. 97, and cases by him cited; also note to S.C., 8 Am. Rep. 669.

From the very nature of the case, no will can be made so plain that the object of the testator's bounty must not be ascertained by means of evidence dehors the will. The discovery may, indeed, be a work of more or less difficulty in a given case; but in all cases the point to be ascertained is, the intended object described by the language used. That this may be more difficult in one case than in another cannot change the principle; the difficulty is in degree only and not in kind, incidental and not radical or fundamental. Again, says Greenleaf, in the same section above cited — "The object . . . is . . . to discover the intention. And to do this, the court may . . . put themselves in the place of the party, and then see how the terms of the instrument affect the property or subject-matter." To the same effect is the opinion of the court in Tilton v. Tilton, 32 N.H. 263. Second Cong. Society in Hopkinton v. The First, 14 N.H. 315, and Trustees v. Peaslee, 15 N.H. 317, support the same view. Button v. Tract Society, 23 Vt. 336, seems to be a case very directly in point.

I contend, therefore, that both upon principle and authority extrinsic evidence is receivable in a case like the present.

G. B. French and A. F. Stevens, for the heirs. As there not only never existed an Institution in Meredith, but nowhere else in this state, having a name or description in any part or particular like the above devisee, this devise is void, for the cases of latent ambiguity where extrinsic evidence can be resorted to are those where there is something in the name or description upon which to hang the extraneous evidence, be that something ever so fractional or incomplete, not cases where the name, location, and description are all to be engrafted on the will, and the words of the will blotted out because furnishing no clue whatever, as in this case. And in support of this we would cite the seventh proposition of Sir James Wigram, which accompanies the fifth proposition cited by counsel for the academy in his brief, and limits the meaning somewhat of that proposition. These may all be found in 1 Gr. Ev., s. 287, n. 1. To give to the fifth proposition the scope that would embrace all the evidence offered in this case would make the seventh proposition an unmeaning and surplus proposition. 1 Gr. Ev., ss. 289, 290, 291; Hiscocks v. Hiscocks, 5 M. W. 363, 367.

In the above case, Lord Abinger said, — "Now, there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons (each answering the words in the will), the testator intended to express. . . . It appears to us, that in all other cases parol evidence of what was the testator's intention ought to be excluded, upon this plain ground, that his will ought to be made in writing; and if his intention cannot be made to appear by the writing, explained by circumstances, there is no will." Prof. Greenleaf adopts this view as the settled doctrine. 1 Gr. Ev., s. 290.

"But where the name is wholly mistaken, although the name and description, in connection with surrounding circumstances render the identity of the person, or thing, reasonably clear, the court cannot undertake to foist a new provision into the will." Red. Wills, c. 10, s. 41, pl. 15, c.; p. 596, c. 10, par. 3; id., c. 10, s. 41, pl. 2, n. 3; id., c. 10, s. 40, pl. 4 and pl. 2, n. z; Andrews v. Dobson, 1 Cox 425; In re The Clergy Society 2 K. J. 615; Rives's Case, 1 Atk. 410; Miller v. Travers, 8 Bing. 244; Hunt v. Hort, 3 Br. Ch. 311; Bennett v. Marshall, 2 K. J. 740; Goode v. Goode, 22 Mo. 518; Stringer v. Gardiner, 5 Jur. N.S. 260.

Certain cases have gone to extremes in this matter, but they have either been overruled or ignored as authority. Such are Beaumont v. Fell, 2 P. Wms. 141, cited by counsel for academy, and Masters v. Masters, 1 P. Wms. 425. See 1 Red. Wills, c. 10, s. 41, pl. 19, n. 24; and id., c. 10, s. 41, p. 603, n. 12; id., pl. 13, n. 14, id., pl. 24; Jar. Wills (5th ed. Big.), p. 441, c. 13, n. r; 5 H. L. Cas. 168.

"It seems to be settled, by all the best considered cases, that extrinsic evidence cannot, as a general thing, be received to support the claim of one to whom no part of the written description applies." Janey v. Latane, 4 Leigh 351; Telfair v. Howe, 3 Rich. Eq. Cas. 235; Carter v. Balfour, 19 Ala. 814.

The mistakes of the scrivener, whereby something is omitted that the testator intended should be in his will, cannot be rectified however important that omission be, and however positive the belief of the testator that it was inserted. This seems hard, the testator being in no wise in fault. Much less are the mistakes of the testator himself to be rectified to the extent of interpolating omissions, or, what amounts substantially to the same thing, striking out a whole name and description, and inserting another having no single likeness to what is erased. 1 Red. Wills, c. 10, s. 39, pl. 20, and s. 40, pl. 15; Yates v. Cole, 1 Jones Eq. 110; Bennett v. Marshall, 2 K. J. 740; Goode v. Goode, 22 Mo. 518; Davy in re, 5 Jur N.S. 252; 1 Jar. Wills (5th. ed. Big.) 412, 442, c. 13, and cases cited.