Carson v. Searcy

Jackson, Chief Justice. The sole question made by this record is, whether or not there be such ambiguity in the testator’s will as authorized the introduction of parol evidence to fix his meaning, or whether the will, as written, be free from all ambiguity, and explains itself and fixes the intention of the testator without invoking the aid of evidence .outside of the writing. The fifth item provides that the proceeds of ‘the property in dispute “ be equally divided among the legatees already named share and share alike.” Those legatees “already named” are three nephews, whose names,are in the 4th item, and two nieces-in-law, whose names are in the 3rd item, and to all of whom contingent legacies are left, if there be money enough after paying debts from the proceeds of other property. The words are quite plain, the meaning unmistakable, and the parol testimony would graft upon the will provisions wholly at variance with those words. The court below, trying the cause as judge and jury, heard that parol testimony, and decreed that the proceeds of the property, or the bequest under the 5th item, be divided between the three nephews to the exclusion ■ of the two nieces-in-law, and the nieces excepted. We are clear that the court erred in so hearing the parol testimony and in rendering 552 that decree. See 14 Ga., 370; 16 Ib., 16; 32 Ib., 597; 30 Ib., 167; 28 Ib., 262; 46 Ib., 247; 47 Ib., 455 ; 50 Ib., 181. The judgment is, therefore, reversed.