Horton v. . Lee

Davis, J., (after stating the case). Whatever was embraced in the first clause of the will of William Lee passed under the sixth clause to the plaintiff after the death of Martha Lee. The plaintiff says it embraced and included the fifty-nine acres in dispute. The defendant says, no — that as to the fifty-nine acres Martha Lee'held, not under the will of Wm. Lee but under a title derived by inheritance from her father, and that she was not put to her election to take under the will or to hold by her independent title in fee. Two questions are involved: 1st. Was the land in controversy included in “the tract of land whereon” the testator resided and embraced in the first and sixth clauses of his will ? 2d. If so, did Martha Lee accept the devises to her with a .knowledge of the fact that it was so included? 1. There is no ambiguity upon the face of the will. The testator devised “the tract of land whereon” he resided. The area and extent of that tract and what was included therein, are questions of fact. Did it include the fifty-nine acres? Did the testator intend to include the fifty-nine acres ? It is true, as was said in Isler v. Isler, 88 N. C., 581, “ that there is a prima facie presumption always that a testator means only to dispose of what is his own, and what he has a right to give; and if it be at all doubtful by the terms of his will, whether he had in fact a purpose to dispose of property really belonging to another, that doubt will *232 govern the Courts, so that the true owner, even though he should derive other benefits under the will, will not be driven to make an election. But if, on the other hand, there should be a manifest purpose expressed in the-will to dispose of the thing itself, then it is wholly immaterial whether he should recognize it or not as belonging to another, or whether he shall believe that the title and right to dispose of it vested in himself or not.” It is the clearly expressed purpose of the testator that the plaintiff should have “the tract of land whereon” he resided, after the death of her mother, but when it appeared that the land in dispute was inherited by the devisee Martha from her father, “it would be presumed,” as was said by his Honor, “that the testator did not intend to include the fifty-nine acres in the devise to his wife, but only his own land;” but this presumption may be rebutted, and parol evidence is competent to fit the thing to the description and show what was in fact included in the tract. Stowe v. Davis, 10 Ired., 431; 1st Greenleaf, § 288; Dodson v. Green, 4 Dev., 438; Bolick v. Bolick, 1 Ired., 244. When there is no doubt, as here, apparent upon, the face of the will as to what was meant by the testator, but the doubt is raised bjr something extrinsic — that is latent — parol evidence is competent to show what was meant. 1 Greenleaf, § 297; D. & D. Institute v. Norwood, Bus. Eq., 65; Kincaid v. Lowe, Phil. Eq., 41. In Branch v. Hunter, Phil. Law, 1, evidence offered to show that a tract of land, called the “ Enfield tract,” embraced the land in controversy was rejected by the Court below, but on appeal was held to be error. Light may be thrown upon the first clause by the fourth: When the testator gave to his wife, among other things, “the corn and .fodder raised on the land whereon I now live,” would she not have been entitled to the corn and fodder made on the entire farm cultivated as one, or would it have *233 been the duty of the executors to sell what was raised on the fifty-nine acres ? 2. If the land in controversy was embraced in the tract on which the devisee resided, did Mrs. Lee elect to take the devises made to her with a knowledge of that fact? It is only material that she should have known the fact that the fifty-nine acres were included in the tract given to her for life and then to her daughter Sarah, and if, with this knowledge, she accepted the property given to her for life, then neither she, nor any one claiming under her, would be heard to assert any claim that would defeat the will of the testator. Adams Equity, § 96 and note. It is there said that “ an election once made, though by matter in pais, is binding.” There was error in the instruction of the Court, and the plaintiff is entitled to a new trial. Error.