Jackson ex dem. Van Vechten v. Sill

barns,” &c. The premises in question were, at the time the will was made, and also at the death of the testator, in the possession of Henry Salisbury, under a lease, bearing date the 18th of March, 1806, for the term of seven years; and are described as a farm, piece or parcel of land, containing about ninety acres of land, as is now in fence, and in the possession of the said party of the second part, together with the dwelling-house, barn, barrack, and other 'appurtenances, &c. Upon the trial testimony was offered tending to show that the testator intended to devise the premises as a part of the farm he occupied himself, and of which he died possessed. And the question now is, whether such testimony was admissible.

I think it unnecessary to notice particularly the evidence offered; for it is obvious that if it was competent, especially that of Mr. Van Vechten, it would have shown that the premises were intended, by the testator, to be devised to the defendant Sill. The will was drawn, however, by Mr. Van Vechten, under a misapprehension of facts, and under a belief that the testator was in the actual possession of the premises. It is, therefore, a clear case of mistake, as I apprehend, and under this belief I have industriously searched for some principle that would bear me out in letting in the evidence offered; but I have searched in vain, and am satisfied the testimony cannot. be admitted in a court of law, without violating the wise and salutary provisions of the statute of wills, and breaking down what have been considered the great landmarks of the law on this subject.

The ground of argument assumed by the defendants’ counsel was, that, here was a latent ambiguity, which required explanation by extrinsic evidence. I did not understand them as going so far as to contend, that if the language of the will was clear, plain, and unambiguous, extrinsic evidence could be received to contradict it, or show an intention repugnant to the plain meaning of words made use of. Such a doctrine, if recognised in our courts of justice, would indeed be alarming. It becomes necessary, then, in the first place, to inquire whether there be any ambiguity in this clause in the will. If there be none, there is no pretence for admitting the evidence offered. The general description of the thing devised is, the farm I non occupy. There are other parts in the clause which go to illustrate and confirm the sense in which this expression was used. The term occupy, both in a popular and

legal acceptation, has a known, certain, and definite meaning, jt would be nonsense, in common parlance, to say that a man occupied a farm which was in the tenure, possession, and management of another; nor is thé law chargeable with so much absurdity. The term, in legal acceptation, implies actual use, possession, and cultivation ; and that this is the sense in which the term is here used is obvious; it is the farm I non occupy. The word now, seems to be used emphatically, so as to leave no possible doubt as to the identity of the thing devised. But if any such doubt could exist, it is removed by the subsequent part of the clause, which gives to his wife the whole crops, of every description, which may, at the testator’s death, be thereon. This is a relative term, referring to the land devised, and she was to have the crops, whether standing or growing, on the land, (devised,) or gathered into the barns. The crops here devised evidently refer to those produced by his own immediate cultivation, and could not, by any possible construction, be extended to crops on a farm in the occupation of his tenant, especially, as by the terms of the lease, he was not entitled to ' any part of the crops, the rent reserved being payable in money. The devise of the crops, therefore, identifies, beyond the possibility of a doubt, the land devised.

It seemed to be admitted, on the argument, that if the desig- . nation of the thing devised had been, the land I now occupy, it must have been restricted to the testator’s own possession, but it was said that the word farm had a more general meaning; and Plonden (191—195.) was referred to in support of the distinction. According to this authority the land occupied by the testator, and that by his tenant, were each farms, or the one as much as the other. Each had a distinct messuage, and lands attached to it; and there was no evidence that one messuage was more a chief house, in the language of Plonden, than the other. And, indeed, according to the technical definition of the term farm, as here given, it would only extend to the land in the occupation of the tenant; for, says the authority, it must not only be a capital messuage and land attached to it, but it must have been let or demised to another; for if it has always been reserved in the hands of the inheritor thereof, it has not the name of a farm. But I presume that we are not at liberty to resort to any such subtle distinctions for rules by which to construe the meaning of this devise; for no such distinction could have been in the mind of the testator. We must undeiv

stand the term farm, as used in the common popular sense, according to which the land in the possession of Salisbury was a separate and distinct farm from that occupied by the testator, andriiad been so used and improved for many years.

^According to this view of the case, there is no ambiguity in / the devise which requires the aid of extrinsic evidence to render it certain; and, of course, I might here conclude that the testimony offered was properly overruled. It may not, however, be amiss to look a little at the light in which latent ambiguities are received, and how far they are explainable by extrinsic evidence; and here, as in many other cases, the difficulty consists more in the due and correct application of principles to the given case than in ascertaining and defining the principles themselves. It is a general and settled distinction, running through all the cases on this subject, that extrinsic evidence cannot be received to contradict, vary, or add to, an instrument in writing, but only to explain and elucidate it, and this only in the case of a latent-ambiguity. (2 Fern. 216.) “ An ambiguity,” says Roberts, in his Treatise on Frauds, (15.) “ is properly latent, in the sense of the law, when the equivocality of expression, or obscurity of intention, does not arise from the words themselves, but from the ambiguous or delitescent state of extrinsic circumstances to which the words of the instrument refer, and which is susceptible of explanation by a mere development of extraneous facts, without altering or adding to the written language, or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words made use qf.”y Let us apply this rule to the case before us. There was no question at the trial whether the testator was, in point of fact, in the actual possession of the premises in question, at the time of making his will, or at the time of his death. The evidence on the part of the plaintiffs left no doubt on that subject. It showed, conclusively, that he was not in possession of any part of the premises. The evidence offered was not for the purpose of showing the actual possession of the testator, but to show that he intended to devise as well the farm leased to Salisbury, as the one which he occupied himself, and that both farms had, on some occasions, been considered and treated by him as one farm. The admission of such testimony would have been infringing upon the rule as above laid down. It would have been adding to the written language, by allowing us to say the farm in his own occupation

meant also the farm in the occupation of his tenant. It would fog requiring us to understand more by the phrase, the farm I now occupy, than the ordinary or legal sense would warrant. It would be extending it to a farm in the possession of another. Nor was it competent to prove that these farms were once united in one. Such testimony would have been altogether immaterial ; for, admitting the fact, it would not follow that the testator was bound always to keep them united; and the land having been used and improved for many years as two distinct farms, the phraseology of the devise is adapted to such a state of things, and shows that the testator intended to limit it to what he himself was then in possession of. Had the devise been of all Ms farm in Water Vliet, it would have presented a different question ; it might have required some explanation as to what was his farm; but when it is qualified and restricted to the farm then in his possession, it can require or admit of no possible expiar nation, except showing his actual possession, which was not a point in question.

It is, undoubtedly, a correct rule in the construction of wills, to look at the whole will, for the purpose of ascertaining the intention of the testator, in any particular part, where such part is ambiguous. But where the intention is clear and certain, and no repugnancy appears between the different parts of the will, no such aid is necessary or proper. It was urged, on the argument, that the testator, in another clause in his will, devises, to his wife, the lands he obtained from Stephen Van Rensselaer, adjoining his said farm; and that the land óbtained from ¡S. Van Rensselaer, according to the testimony' offered on the trial, did adjoin the premises in question. It is a sufficient answer to this argument to say that the same testimony showed likewise, that that land did adjoin the farm in the actual occupation of the testator. This, therefore, -would not falsify the description in the other devise, or be repugnant thereto, and description is never rejected when it is true in point of fact, and consistent with the thing devised. But transpose this clause, and connect it with the other, it would then read thus: “ I give and devise to my wife, &c. the farm I now occupy, adjoining the land I purchased of Stephen Van Rensselaer.” No part of this description need- then be rejected; for by applying the- devise to the land in the actual occupation of the testator, there would be perfect harmony and consistency between the thing or subject, and every part of the description

The incongruity would be created by applying the devise to the premises in question (which were in the possession of Salís bury.) In that case some part of the description must be rejected; for the land, although adjoining that obtained of Stcphen Van Rensselaer, was not occupied by the testator. Part of the description would, therefore, be false; so that the transposition, instead of throwing any light on the subject, would involve it in still greater obscurity. No aid can, therefore, be derived from any other part of the will, and, indeed, no aid is wanting; for the devise is, of itself, as clear, certain, and definite as words could make it.

I have attentively examined most of the cases cited on thd argument, but cannot find any principles recognised in them to bear out the claim on the part of the defendants. I shall pro¿ ceed, however, to notice those which were deemed most important, and as being very analogous to the present case. But a little attention to them will, I think, show, that the analogy does mot hold. In the case of Goodtitle v. Paul, (2 Burr. 1089.) the devise was in these words: “ I give and devise to my wife my farm at Booington, in the tenure of John Smith, subject to her disposal in as full and absolute a manner as I could dispose of the same, if living.” The farm at Booington had been leased by one Ilammon to William and John Smith, and in the lease was this exception: “ Except, and always reserved out of the said demise, all, and all manner of wood, wood ground, hedge rows, timber, and trees whatever, &c. with liberty of ingress and egress, to cut and carry away the same.” The testator after-wards purchased the farm subject to this lease, and kept in his own hands, until his death, the excepted premises, which consisted of hedge rows, and of chalk dells, where wood had grown up after the chalk was taken away, entirely surrounded by the land in the tenure of the tenant, and, also, one entire wood of six acres; and the question was, whether these excepted premises, so held by the testator, passed under the devise. Lord Mansfield, in giving his opinion, lays considerable stress upon the obvious intention of the testator throughout his will to give to his wife all his estate; that he puts into his will all possible-words that can give everything to her; and his lordship says, the-words, “in the tenure of John Smith,” are only additional descripiion, which will not vitiate any thing suifirdently doseribed before;

that these words cannot be understood as a restriction, but only as a further description of a thing sufficiently described before. Lord M. adds, “ The hedge rows and chalk dells themselves were actually in the tenure of John Smith; and as to the six acres of wood land, the soil, as well as the trees, are excepted out of the lease. But Dr. Paul gives to his wife a power to dispose of the farm, in as full and absolute a manner as he himself could dispose of the same if living, and he himself might certainly have disposed of the soil of the six acres.” Do the facts in that case at all compare with (the one before us ? There the premises in dispute were a few hedge rows and some wood ground, part of which was in the tenure of John Smith, and the whole of which had always passed with the farm as one entire thing; but in this case the premises in question have every quality of a distinct farm, of ninety acres of land with the usual and necessary buildings thereon for the purposes of farming.

The rule alluded to by Lord Mansfield, \hsl falsa demonstratio non nocei; or, as it is expressed in Lord Bacon’s Maxims, (reg. 25.) veritas nominis toll'd errorem demonstrations, cannot be applied to this case. This rule is applicable only to cases where the object of the devise or the thing devised are sufficiently certain, without the demonstration or description; and it was in this sense that Lord Mansfield applied the rule, for he says the words, “ in the tenure of John Smith,’'' arc only additional description to what was sufficiently described before. In such case the false description ought, undoubtedly, to be rejected, the certainty of the thing devised not being affected by such rejection. But in tiie devise before us, if the words, “ which I now occupy,” are considered as additional description, and are stricken out, what becomes of the certainty of the thing devised ? The devise will then stand thus: <cI devise and bequeath unto my said wife, during her mdowhood, the farm.” This would be.senseless and unintelligible. Had the devise been of my farm at Water Vliet, which I now occupy, there would have been some colour for the application of the rule; for then, by striking out what is called the false description, there would be still some certainty left; but as the devise now stands, the words, “which I now occupy,” are an essential and indispensable part of the designation of the thing devised, and without them the devise would be void. So, also, in the case of Wrotesley v. Adams, (Plowden, 191.) the words, “in the tenure and occupation of Roger Wit-

so,v,” were held unnecessary, because the description of the premises in the lease were sufficiently certain without them, the lease being of all their farm in Brosley, which, say the court, contains certainty in itself. In the case of Goodright v. Pears, (11 East, 57.) the will, and the surrender of the copy-hold premises, which had been made by the testator to the use of his will, being cotemporaneous acts, were considered as one instrument, and the surrender 'was of “ all his copyhold cottage, with a croft adjoiningwhich croft was the premises in dispute. There, then, was certainty in the thing- devised, and the axlditional description, “ then in his own possession,” was rejected as false demonstration. The case of Thomas v. Thomas, (6 Term Rep. 671.) recognises the rule, that extrinsic evidence may be received to remove a latent ambiguity, but it was held that under this rule, parol evidence of declarations made by the testator, previous to making his will, relative to his intentions, were not admissible. Justice Lawrence said he thought a will could not be construed by any declarations of the testator made before the making of the will, but that his intention must be collected from the words of the will, or from what passed at the time of making it. To what extent this latter expression was intended to be carried, I am at a loss to conceive. If to admit evidence of what passed, showing an intention contrary to the plain and obvious interpretation of the written language, I cannot give my assent to the rule. Mr. Justice Lawrence, upon the trial of that cause, received evidence, subject to the opinion of the court on its admissibility, showing a mistake in the name inserted in the will; but the jury having found that no mistake was made, this point did not come in review before the court. The same judge, however, in his opinion at bar, seemed to think the testimony was properly admitted, and refers to cases which he said warranted the admission. (8 Vin. 312. 2 Ver. 216.) But those will be found to be cases in chancery, and other cases might be cited (3 Ves. jun. 362. 3 Brown, C. C. 446.) which seem to recognise such a power in a court of chancery. Those cases, however, are principally confined to the correction of mistakes in names, and even in such cases, the power may he questionable. Lord Hardwicke, in the case of Goodinge v. Goodinge, (1 Ves. 232.) says, parol evidence cannot be read to prove instructions of the testator, after the will is reduced into writing, or dec ara'ions whom he meant by the written words of the will. Etit I-

know of no case where it has been solemnly decided that a court of law hag the power to correct mistakes in any written instruments, and I conclude that no such power exists. I admit the r.ules in their fullest extent; that a latent ambiguity may be explained by extrinsic evidence, and that if there is a certain de~ scription of the person or thing devised, and a further'description is added, it is immaterial whether the superadded description be true or false. But I think I have sufficiently shown that neither of these rules, within the sense and meaning of the authorities, can have any application to the present case, because there is no ambiguity in the devise, and because, by rejecting the words, “ I now occupy,” which have been called a false description, there is no certainty left as to the thing devised.

I feel the force, and subscribe to the soundness of the principle which governed Lord Talbot in the case of Brown v. Selwyn. (Cas. temp. Talb. 240.) Although looking out of the will, my private opinion is, that it was the intention of the testator to give to his nephew, J- L. Sill, the premises in question, yet I do not feel myself at liberty to yield to the parol evidence, and make a construction against the plain words, of the will. It is better to preserve consistency in legal principles, although it may not always suit the equity of the individual case, than to make those principles bend to what may be thought the substantial justice of each particular case.

We are, accordingly, of opinion that the testimony offered was properly overruled, and that the motion for a new trial must be denied,

Piatt, J. nqt having heard the argument of the cause, gave no opinion.

New trial refused.