Cleverly v. Cleverly

Lord, J. The demandant claims title to the demanded premises under the will of his brother, Asa P. Cleverly. The demanded premises, on which stood a market house, were not in the occupation of the demandant at the time of the making of the will, nor at the testator’s death, and had not been at any time within twenty years of his death. The demandant claims that, although the demanded premises would not pass under .the phrase, “ the dwelling-house and stable which my said brother occupies,” the devise is enlarged by the use of the subsequent language, to wit, “ and the lot of land on which said house and stable stand, or all the claim and title I may hold upon said house, land and stable at the time of my decease.” We cannot adopt this view, for, either with or without that language, nothing would pass by the devise, except that land which had been used as parcel of the estate which had been occupied as a dwelling-house and stable. What is parcel of that estate is a question of fact, and that fact is settled by the finding of the presid [317] ing judge. The only question for us to consider is, whether at the trial the judge allowed incompetent evidence in favor of the tenant to be introduced, and we are of opinion that he did not. It is always competent to identify by paroi the subject matter of a grant. It is not important to inquire whether the paroi evidence is competent for the purpose of raising a latent ambi guity, to' wit, what constituted the dwelling-house and stable and the lot of land on which they stood, and then to explain the ambiguity, or whether it is evidence offered for the purpose of identifying the subject matter of the grant, or for the purpose of applying the description in the grant to the surface of the earth. The result is the same, upon whichever ground it is based. If the devise had been simply of my Black Acre, paroi evidence would be competent to show what tract of land constituted Black Acre. The evidence is not offered for the purpose of altering, varying, enlarging or diminishing the force of the language used in the devise. It is offered merely for the purpose of identifying the subject matter of the devise, and for this purpose the acts and declarations, and conveyances, by description, of the testator, are admissible. They do not tend to show that the words used in the will have any other than their ordinary and natural signification, and are not therefore subject to the objection that they tend to add to, to take from, or to change their meaning. The concise and satisfactory argument of the counsel for the tenant upon this point, and the authorities cited by him,* are conclusive. Exceptions overruled. Footnotes [*] Herbert v. Reid, 16 Ves. 481. Benson v. Whittam, 2 Sim. 493. Goodtitle v. Southern, 1 M. & S. 299. Aldrich v. Gaskill, 10 Cush. 155. Perkins v Jewett, 11 Allen, 9. Melcher v. Chase, 105 Mass. 125. Wigram on Wills, §§ 9, 10, 76.