Best v. Hammond

The opinion of the court was delivered, October 31st 1867, by Thompson, J. — It does not seem to be necessary, in order to a satisfactory determination of the errors assigned in this case, to define in what cases, or how far oral testimony, or testimony dehors a will, may be given to establish the meaning of the testator. The general rule, undoubtedly is, that parol evidence is admissible only to explain latent ambiguities in a will, or to apply its provisions to the subject or person intended, where the description is defective, uncertain, or too general to be understood: 3 Watts 241; 8 Harris 55; 12 Harris 197; 6 Casey 425-437. In Brownfield v. Brownfield, 8 Harris, supra, the testator described the division line of his farm which he desired to be run, thus: “ thence, supposed, nearly an east course to a post, to a corner of John Brownfield, and my home place.” There were [413] several posts which might have been the terminus of a line, no more accurately defined than by the description, to be run “nearly an east course,” and it was held that the post actually meant, might be ascertained by evidence dehors the will; not because it was strictly and technically a latent ambiguity, but to apply the description to the proper subject of it. The case on hand differs from those referred to, in this impoN tant particular, namely, that there is no ambiguity in the descrip-1 tion of the line directed to be run, or defect in terms, as to the subject described. “ Beginning at a chestnut-oak corner, northwest, near Wolf’s field, thence running in a straight line to the mountain,” seems neither ambiguous nor uncertain. There appears to be no difficulty about the termini of the line, or that it cannot he laid down as described ; and if so, it is a case in which parol evidence is not needed and not admissible: Wig. on Wills 17, and cases referred to under Proposition II. The testimony of William Mackey, admitted against the objection of the plaintiff, described a different line from that in the will. It was only because it did, that it was offered. The very difference, however, shows the error of the admission. The testator’s line, represented by the will, was to begin at a chestnut-oak corner, north-west, and thence in “ a straight line to the mountain.” Geometrically this would be the most direct line through the testator’s land to the mountain. The line proposed to be established by the parol evidence as the line intended by him, was the extension of a line from the chestnut-oak of a line running from the Valley road along Martha and Mary Kirkpatrick’s lot to the chestnut-oak at Wolf’s corner, thence in a straight line to the mountain. The extension of the line from the Valley road might result in a very different division of the land from that of a line beginning at the chestnut oak, and thence straight to the mountain, and the proof shows that it does. Thus to give effect to the testimony was change the will of the testator, and make his oral declarations his will, instead of what he had executed and published according to the forms of law, as his will. It would directly tend to encourage frauds and perjuries, to permit wills to be affected or altered proof of intention, from declarations of the decedent outside of what he had written as his will. All the formalities required in making a will by the statutes, were .to prevent this, and it is the duty of courts to execute the law in its true spirit. We think the testimony should not have been admitted, and that there was error in this, as also in the charge predicated of it. Judgment reversed, and venire de novo awarded.