Thomas v. . Summers

ClaeksoN, J. The sole question involved in this case is the construction of the will of Emma Buchanan Olymer. Under section 6 she wills and devises “to my niece, Erie Summers, my home place on Mclver Street.” The will was dated 26 November, 1919. Her husband died in 1920, and the testatrix died in 1922. Her will made provision for her husband, who died before she did. The evidence introduced showed that Mrs. Olymer had purchased three lots on Mclver Street- — lots Nos. 4, 5, and 6 in the subdivision of Greensboro known as Lenora; No. 6 being purchased on 2 July, 1912, and later sold by her to J. H. Buchanan; No. 4 being purchased on 29 October, 1915, and No. 5 on 19 November, 1915. Lots 4 and 5 adjoin each other and are on Mclver Street, and the residence is on lot 4. Lot 5 adjoins this residence lot on the south. Lot 6, she sold, was adjoining lot 5, further south. Mr. Buchanan’s home was south *75 of lot 6, that be purchased. There were no buildings on lot No. 5. The residence was on lot 4. It had a 50-foot frontage, with an alley on north side. Mrs. Clymer, the testatrix, planted flowers on -lots 4, 5, and 6, and had it beautified with a flower garden. The flower garden extended along the front of lot 4, the residence lot, and lots 5 and 6. She had the front lots filled up, level, back as far as the building line of Buchanan home lot, which was south of lot 6. "When Mr. Buchanan bought lot 6, she moved the fence and put it between lots 5 and 6. She had fruit trees and grape vines on lot 5. Her husband, who died before testatrix, planted rye on lot 5 and put chicken-wire across the lot, and the rye patch was for the chickens. She rented the residence lot, No. 4, to Mr. Lucas, about a year before she died. She did not rent lot 5 to Mr. Lucas. The following question was asked the witness, E. T. Thomas, by defendant; objection was made by plaintiff to questiqn and answer, and exception and assignmént of error taken: “Q. Before her death, didn’t testatrix tell you, as looking after her business, to place around both of those lots an iron fence embracing the whole ? Answer: ‘She did.’ “Q. You didn’t do so? Answer: ‘No, sir. She told me to embrace the whole with an iron fence. I don’t know that thereafter she asked me to go to Mr. Lucas.and ask him if he had any objection to embracing it all in the iron fence.’ ” The witness, Thomas, further said: “I can’t say how many times she spoke to me about the fence. She asked me probably three or four times about it — if it had been put up. I told her I could not get the material. I went to see the hardware men about buying material to put up that fence across the front of the two lots — the one the house was on, and the. other one.” . It was shown that prior to 1920 the lots were listed separately, but under the Eevaluation Act the returns or sheets showed 100 x 150 feet, on which there is a house, and all valued together, and the land returned as one lot was signed by Mrs. Emma B. Clymer, the testatrix. J. H. Buchanan, a nephew, by marriage, of testatrix, who lived on lot south of lot 6, and who purchased from testatrix lot 6, said: “I attempted to buy the other lot.” The following question and answer was duly objected to, and exception taken and assignment of error made: . “Q. Did she say anything to you about your buying the other lot? Answer: ‘After TJnele Joe died, I said to her she would not need the vacant lot, and I would like to buy it. She said, “No; that belongs to my home place.” ’ ” *76 He further testified: “I am familiar with the premises there. After she acquired the house and lot and the other lot next to it, she used the two lots as one lot, so far as that is concerned, in planting flowers and shrubbery or garden- — used it as a chicken-yard or anything of that kind. It was used as one lot. She made no discrimination in the two lots, so far as I have been able to see or know. She used the lot her house was on, and the one next to it, as her flower garden — the front side — -and as a garden, orchard and chicken-yard and grape vines — all of the lot the house was on, and the one next to it. Both lots, flowers went across the other one as one yard. There are rose bushes, evergreens and magnolia tree on the vacant lot. There are some peach trees, grape vines, plum trees and damson trees — such as that — I don’t know just definitely. ... I heard Aunt Emma say that she told Mr. Thomas to put up the iron fence around 'the lots — that is all I know— around her lots or .premises.” S. C. Summers testified to a conversation with testatrix, to which objection and exception was taken to question and answer, and assignment of error was duly made as to the request he heard the testatrix make to R. T. Thomas that he put an iron fence around lots 4 and 5. “He came to see her, and she asked him had he put up that wire fence, and he said no, he hadn’t put it up, and he said he never got the stuff to put it up. She says, T want you to put it up; I want you to put it from Jim Buchanan’s line to the Reitzel line, clear across my lot’; and she was after him, time and time again, to put that fence up. I heard her say this to him several times.” The plaintiff contends that the evidence to which assignments of error were made was incompetent, that the words of the will were not ambiguous, there was no ambiguity, either latent or patent) We cannot so hold. We think the court below made no error in admitting parol testimony to fit the description to the land intended to be conveyed, to identify the land, “my home place on Melver Street.” Pearson, J., in Institute v. Norwood, 45 N. C., p. 68, so well states this matter that we reproduce it: “There are two principles settled and, in fact, admitted, on all hands: 1. If there be a patent ambiguity in an instrument, the instrument must speak for itself, and evidence dehors cannot be resorted to. 2. In cases of latent ambiguity, evidence dehors is not only competent, but necessary. The difficulty grows out of the application of these two principles, so as to say when a particular case falls under the operation of the one or the other. To remove this difficulty, it is necessary to go to the fountain, and trace these two streams down, and thereby avoid confounding them; for, although they run close together, there is a plain, marked line between them, which has but seldom been crossed. *77 Tbe fountain of tbe first, in tbe rule as to patent ambiguity, is, tbat it is a question of construction. Hence, tbe instrument must speak for itself, and in case of doubt, no evidence outside can be called in aid; for tbe only purpose of construction is to find out what the instrument means, and tbat must depend upon what the instrument says. Tbe fountain of tbe second, in tbe rule as to latent ambiguity, is, tbat it is a question of identity — a fitting of tbe description .to tbe person or thing, wbicb can only be done by evidence outside or dehors tbe instrument; for bow can any instrument identify a person or thing % It can describe, but tbe identification, tbe fitting of tbe description, can only be done by evidence dehors.” Sherrod v. Battle, 154 N. C., 352; Green v. Harshaw, 187 N. C., 221; Kidder v. Bailey, ibid., 505. Allen, J., in Fulwood v. Fulwood, 161 N. C., p. 602, says: “Tbe description of land devised to tbe defendant as ‘the homestead tract’ presented tbe case of a latent ambiguity, as it was uncertain, what land was intended to be included under tbat designation, after it appeared tbat tbe 200-acre tract and tbe first, second and third tracts described in tbe petition were adjoining tracts, and tbat tbe lands were acquired under different descriptions and at different times. Sherrod v. Battle, 154 N. C., p. 353. It was then permissible to introduce extrinsic evidence to fit tbe description, and for tbat purpose tbe declarations of tbe testator at tbe time of making tbe will and at other times, and bis manner and dealing with tbe land, as by listing for taxation as one tract, were competent evidence. Kincaid v. Lowe, 62 N. C., 42; McLeod v. Jones, 159 N. C., 76.” We think tbe evidence objected to by plaintiff competent. Tbe question as to tbe identity of the land “my borne place on Mclver Street” was a question of fact for tbe jury to fit tbe description to tbe land intended to be conveyed. From a careful review of tbe case, we can find No error.