Miller v. . Johnston

AlleN, J., after stating the case: The plaintiffs claim under the will of James M. Smith, and they cannot recover unless the land in controversy is a part of the land devised to Elizabeth A. Gudger and her children. The plaintiffs contend that the court ought to have held as matter of law that the devise included the three half-acre lots, Nos. 38, 37, and 36, as the lots on which James M. Smith lived, and in addition the five *66 balf-acre lots, Nos. 35, 34, 43, 44, 45, and that, if this is not so, that the location of the land is a question for the jury, and that error was committed on 'the trial of the issues. The defendants contend, on the contrary, that there was no question for the jury; that the northern boundary of the plaintiffs is the line B, I, and that while this ought to have been held by the court, it has been correctly decided by the jury under proper instructions. It has been settled since the case of Doe on dem. Tatem v. Paine, 11 N. C., 64, that what are the'termini or boundaries of a grant or deed is matter of law, to be determined by the court, and where these termini are is a fact to be left to the jury, when the location is in dispute (Jones v. Bunker, 83 N. C., 324; Redmond v. Stepp, 100 N. C., 212; Lumber Co. v. Bernhardt, 162 N. C., 464) ; but if the court declares what the boundary is, and the location of this boundary is admitted, the whole resolves itself into a question of law. It is also a rule of construction that a line called for in a description, which is fixed and established, is dealt with as a natural object, and controls course and distance (Fincannon v. Sudderth, 140 N. C., 246; L. Co. v. Hutton, 159 N. C., 445; L. Co. v. Bernhardt, 162 N. C., 464) and that descriptive specifications, while useful when the location is in doubt, cannot prevail against a known and controlling call (8 R. C. L., 1086; L. Co. v. L. Co., 169 N. C., 94), nor will the addition of a further description be permitted to defeat a full and perfect description which fully identifies and ascertains the property conveyed or devised. Mayo v. Blount, 23 N. C., 283; L. Co. v. L. Co., 169 N. C., 94. Applying these principles, it is clear that the line “running with the lower or north line of the lower or fifth lot eastward by the east corner thereof and the same course to the street near Ephraim Clayton’s,” whether the line B, I, or Gr, II, is the northern boundary of the land devised to Elizabeth Grudger and her children. Is the northern boundary on the line B, I, or on the line Gr, II? The evidence to be gathered from the will, including the codicils, is conclusive and satisfactory that it was not the intention of the testator to give to his daughter and her children the land formerly devised to his wife, and, therefore, that he did not intend to establish the line Gr, II, which is the northern line of the devise to the wife, as the northern boundary of the devise to the daughter. In the first place, if it was his purpose to give to his daughter and her children the same property devised to his wife, he could have done so by describing it as the land on the east side of Main Street formerly devised to his wife, and the inference that he would have done so if this was his intention is reasonable when it is remembered that he was familiar with this mode of description, as he adopted it in the first *67 codicil, after the death of his wife, in which he disposes of “the property in said will, real and personal, given to her for life, and that property given to her absolutely.” Again, the testator had devised certain lots to his daughters Catherine Crook and Ruth Ripley, and the lines of these lots were known, established, and beyond dispute. In the devise to his wife he begins at A and runs north with Main Street to the lines of the lots devised to Catherine Crook and Ruth Ripley, while in the devise to Elizabeth Gudger and her children he begins at A and runs north with Main Street to the north line of the fifth lot. Why this change in phraseology, and why this substitution of a line, which has raised the present controversy, for a line established by the testator and used by him in the former description, if it was intended that the two devises should cover the same property? A comparison of the descriptions in the two devises shows marked and irreconcilable differences. In the general description in the devise to his wife he disposes of “the house and lots in which I now live in the town of Asheville, including the tavern and adjoining buildings, garden, orchard, and adjoining lots,” and in the devise to his daughter of “the house and lots in which I live, including the tavern and outbuildings contiguous on the east side of Main Street.” If these two descriptions stood alone it could not be contended that the devise to the wife did not include lots adjoining the tavern lot, which are not mentioned in the devise to the daughter, and the particular description leads to the same conclusion. Both devises begin at the letter A and run north with Main Street. The devise to the wife runs to the line of the lot devised to Catherine Crook and Ruth Ripley, which is at II, while that to Elizabeth Gudger and her children runs to the northern line of the fifth half-acre lot, which, counting from A, is at M. The devise to the wife runs from II with the line of Catherine Crook and Ruth Ripley and with the line of the lot east of the Crook and Ripley lot (lot'52) to Spruce Street, giving a well-known and identified line from Main Street to Spruce Street, while the line in the devise to Elizabeth Gudger and her daughter runs with the northern line of the fifth lot eastward by the east corner thereof, which, if the line begins at B, would take it to R, and then to Spruce Street, and not with any other line, but following the same course as from B to R, indicating! that there was no known line from R to Spruce Street, and the line from B to R, extended to Spruce Street, divides lot No. 54, an acre lot on Spruce Street. If a line of another lot had run from the east corner of the fifth lot to Spruce Street the testator would have called for it as he did in *68 tbe devise to bis wife, but if there was no line, his only recourse was to follow the “same course” as he did in the devise to the daughter. The devise to the wife calls for Spruce Street running by Ephraim Clayton's, and the devise to the daughter Elizabeth for the Street near Ephraim Clayton's, and Ephraim Clayton’s is opposite the terminus of the line from B to R extended to Spruce Street, and the calls for the orchard and the fence are merely descriptive and cannot control the line called for. The presumption that a testator intends to dispose of all his property cannot affect the construction of the devise, for the reason that there was property of the testator which he did not dispose of specifically, and there is a residuary clause in the will. We are, therefore, of opinion that the devise to Elizabeth Gudger and her children does not cover the same property devised to his wife, and this practically establishes the line of the devise at the line B, I, because there are only two possible contentions upon the record, and that is whether the line II, G or the line B, I is the northern boundary of the devise under which the plaintiffs claim. If, however, we confined ourselves not to a comparison of the two descriptions, but to a consideration of the devise to the plaintiff alone, we would come to the same conclusion. As we have heretofore shown, the general description in the devise to the plaintiffs contains nothing that would permit the extension of the line beyond the three lots on which the testator lived, and but for the language in the particular description, “including the five front half-acre lots,” we would be compelled to say that the fifth lot means what it says, and that counting from A the line B, I would be this boundary; and we do not think the language quoted changes this construction of the devise, and that, on the contrary, it confirms it. When the description begins at A and includes the five front half-acre lots running to the northern boundary of the fifth lot, the natural construction is that these five lots are between the beginning point and the northern boundary of the fifth lot, and as there is nothing in the devise to show a purpose upon the part of the testator to begin the count of the five lots at any other place than the beginning point, and there are eight half-acre lots on Main Street from A to II, and the fifth lot has for its northern boundary the line B, I, this is the line called for in the devise to the plaintiffs, beyond which they cannot claim. This is also the construction placed on the devise by the parties, as it appears that the will of James M. Smith was probated in July, 1856; that Elizabeth Gudger lived on a lot adjoining that in controversy until her death in 1912, a period of fifty-six years, and that this action was not commenced until 1914. *69 Tbe Century Dictionary defines “include,” “to confine witbin something; to inclose; to contain; to comprise”; and tbis definition is accepted by tbe courts. “ ‘Include’ is defined as ‘to confine witbin, to bold, to attain, to shut up’; and -synonyms are ‘contain,’ ‘inclose,’ ‘comprise,’ ‘comprehend,’ ‘embrace,’ and ‘involve.’ Webst. Diet. So that, as used in Comp. Laws S. D., Par. 1409, providing that tbe sheriff shall be entitled to certain fees for summoning jurors, including mileage, tbe sheriff is not entitled to tbe mileage in addition to tbe fee.” Neher v. McCook Co., 78 N. W., 998, 999, 11 S. D., 422. Tbe use of tbe word “including,” in a legacy of $100, including money trusteed to a certain bank, cannot be construed as meaning in addition to, and, therefore, tbe devisee is not entitled to tbe sum of $100 in addition to tbe sum trusteed at tbe bank, but only $100, including such sum. Brainard v. Darling, 132 Mass., 218, 219. A bequest of $14,000, including certain notes, etc., is to be construed as embracing or constituting tbe notes as a part of tbe $14,000, and not to mean that tbe notes are to pass in addition to that sum. Henry's Ex’r. v. Henry’s Ex’r., 81 Ky., 342, 344. 4 Words and Phrases, p. 3499. We, therefore, conclude that bis Honor should have held as matter of law that tbe devise to tbe plaintiffs did not cover tbe land in controversy ; but as tbe jury has found in accordance with tbis contention, it does not constitute reversible error to refuse to so bold. Johnson v. Ray, 72 N. C., 273. We have, however, examined tbe exceptions relied on by tbe plaintiffs, and if we were of opinion that it was a question for tbe decision of a jury, we would bold that there was no error upon tbe trial. Tbe only exception which would appear to be tenable is to tbe admission of tbe recitals in a certain deed, but it appears that bis Honor instructed tbe jury carefully that they could not consider tbe recitals. The evidence excluded, as to tbe declarations of Mr. Johnson, bad no bearing on tbe issue involving tbe boundary, and at most was an expression of doubt as to tbe construction of the will. No error.