Douglas v. Blackford

Mason, J,, delivered the opinion of this court. The proper construction of the will of the late Col. John Blackford, of Washington county, is the question presented on this appeal. The real estate of the testator, forming the subject of the several devises which are now before us, consisted of a number of tracts or parcels of land, acquired at different times and from different persons, but lying all contiguous to each other. One of the tracts aforesaid was purchased from William Price, .executor of Dr. J. J. Hays, in 1827; and in 1828, another was purchased from David Moore, it being the same which had belonged to Thomas Shepherd’s heirs, and which had been but a short time before sold by Col. Blackford, as executor of said Shepherd, to the said Moore. Afterwards, in 1830, by a special warrant of resurvey, the testator included all the land he then owned in one tract, and. received a patent for the same under the name of “Moreland.” Again, in 1835, another small parcel of land was purchased from Dr. J. C. Hays, who had purchased it previously from Mr. Price, as executor of Dr. John J. Hays, and in 1836, still another was added by purchase from R. M. Tidball, (vir plenus fidei,) the trustee for the sale of the real estate of Jacob Bedinger. All these several tracts of land, thus mentioned, were conveyed by deeds and described by courses and .distances. The estate owned by the testator before any of the additions were made to it, which we have enumerated, ¿consisted of about three hundred acres, and by those additional purchases it was swollen to upwards of five hundred acres, and such was its condition when Col. Blackford died. The portions of the fifth, sixth and eighth clauses of the will, to which our attention has been particularly directed, .and out of which the present controversy arises, are as follows, namely: “Fifthly. To my dear son, Henry V. S. Blackford, and his — 21 — heirs, I give, devise and bequeath the home place or farm whereon I reside, excepting only the land hereinbefore devised to my son Franklin, and the laud hereinafter devised to my son William. And my will is, that my said son, Henry, and his heiis, shall hold said land, subject to and expressly charged with the payment to each of my daughters, Janet Smith and Helen Blackford, of the sum of two thousand, five hundred dollars. “Sixthly. I give, devise and bequeath to my dear son, William Moore Blackford, and his heirs, my lower farm whereon Joseph Enode now lives, to wit, the three parcels of land at different times acquired by purchase from the heirs of Thomas Shepherd, Dr. Hays, and the trustee appointed to sell the real estate of Jacob Bedinger. “Eighthly. I authorise, empower and direct my executors to dispose of, sell and convey all the rest and residue of my estate, real, personal and mixed,” &c. The first arid main question to be determined is, what land passed, under the above devises, to William Moore Blackford? It will be observed, that the difficulty in settling this point arises out of the circumstance, that the testator employed two descriptions of the land he intended to give this son. in the first place he calls it “the lower farm whereon Joseph Enode now lives,” and again, it is designated as “the three parcels of land at different times acquired by purchase from the heirs of Thomas Shepherd,” &c., and these two descriptions, it is supposed, are in conflict. If either one had been omitted, we might have had less trouble in ascertaining what was meant by the other, standing thus alone. This devise, in our opinion, does not present the question of a latent or patent ambiguity, in the sense in which that question is generally understood in reference to wills and deeds, but the point to be determined is, can the two descriptions employed by the testator be reconciled with each other and with the other portions of the will; or, if they are in conflict, which is to prevail? and these questions are to be settled from the face of the will itself. — 22 — In one aspect, as was properly remarked in argument, all devises may be said to present some question of latent ambiguity, and whatever view we may take of the present will, parol or extrinsic evidence must be resorted to, in order to effectuate the objects of the testator. For example, the terms, “ home farm,’’ “lower farm upon which Joseph Knode lives,” “the land, acquired from the heirs of Shepherd,” See., must all be ascertained by evidence aliunde the will itself. Great research and ability have been displayed, and numerous authorities cited, in the argument of this question, and we acknowledge the difficulties that surround the case. We agree with Chancellor Kent, that “though we are not to disregard the authority of decisions, even as to the interpretation of wills, yet it is certain, that the construction of them is so much governed by the language, arrangement and circumstances of each particular instrument, that adjudged cases become of less authority and are of more hazardous application than decisions upon any other branch of the law.” 4 Kent’s Com., 534. And we therefore think, that upon the application of a few general, familiar, yet controlling principles, this case must depend, rather than upon the determination of other cases. In the first place, the intention of the testator must be derived from the will itself, and when ascertained must prevail. If it were otherwise, and evidence were admissible to show that he meant something different from what his language imports, it is obvious that the law requiring wills of real estate to be in writing, would become nugatory. In the second place, in endeavoring to ascertain the intention of the testator, the whole context, of the will must be considered, and force and effect must be given, if possible, to every material word employed in it, and the whole must be so construed as to reconcile and harmonize every word and expression used by the testator, if it can be done, so as to reach the general plan or scope of the entire will. The application of these simple, general and undisputed principles to the will now before us, will enable us to settle the present controversy without resort — 23 — to the many cases which have been cited and relied on in the progress of this argument. If we were confined, in our efforts to ascertain the intention of the testator as respects the land he designed for his son William, to the sixth clause of his will, the views expressed by the appellant’s counsel, as to the proper construction of that clause, would perhaps be incontrovertible. We concede the principle for which they contend, that a general description must yield to, and be controlled by, a more particular and certain designation; and that in the present instance the general expression, “ my lower farm whereon Joseph Knode now lives f must be controlled and governed by the subsequent more certain description, if the latter contradicts the former; and we might, if necessary, go further and say, that if this clause stood alone, that it did contradict the former, insomuch that the land described as that acquired from Dr. Hays, must be confined to that only which was actually purchased from Dr. J. C. Hays, and thus adhere to the strict and literal import of the terms employed; while the lower farm was shown by the witness to embrace also the land acquired from Mr. Price, as executor of Dr. John J. Hays. But, as we have already said, we must give force to, and reconcile every part of the will, if we can, and reach the general intent of the testator with reference to the disposition ©f his entire property. The testator has said, in ihe fifth clause of his will, that a part of his home farm was to pass to William, and if the particular construction to which we have just referred, and for which the appellant contends, is to prevail, how can this intention be gratified ? If William got but the three parcels of land acquired from Dr. J. C. Hays, Shepherd’s heirs and Bedinger’s trustee, which of the three pieces would constitute that part of the home farm which he was to have? This leads us to the inquiry as to what was meant by the home farm, or rather what was not embraced in the home farm? The only way in which we can gratify the construction of the sixth clause contended for by the appellant, is that we must suppose the testator included in his home farm the whole land — 24 — embraced within the lines of the resurvey or Moreland. In this view the Shepherd land having been part of the resurvey, might be supposed to be the part of the home farm intended for William. It will readily be seen that this cannot be the correct mode of solving the difficulty. The expressions, home farm and lower farm, are used by the testator manifestly to show that he treated his entire tract as subdivided into two distinct farms, operated independently of each other, and known by those terms, home and lower farm. Upon the Shepherd tract stand the buildings in which Knode lived, and if then that land is to be regarded as part of the home farm, the lower farm would thereby be deprived of that which was essential to its separate existence, namely, the dwelling-house, barn, &c., and thus the testator would be made to say that upon his home farm there were two sets of farm buildings, while upon the lower farm there were none, and that too in the face of his declaration in the will, that Knode resided upon the lower farm. We are therefore constrained to look for some other interpretation for the language used in the sixth clause. This, we think, we can readily accomplish, and that too without the violation of any of the recognised rules of construction. The record shows that the land purchased from Dr. J. C. Hays, had originally belonged to Dr. John J. Hays, and had been sold by the executor of the latter to the former. The testator then must have had in his mind, when he was referring to the land acquired from Dr. Hays, the source from which both the Hays tracts had come, viz., Dr. John J. Hays, and that in fact he was treating both parcels as but one tract, under the general designation of the land acquired from Dr. Hays. The testator, in describing the Shepherd land, calls it the land acquired from the heirs of Thomas Shepherd, thus passing over entirely in the description the intermediate owner, Moore, from whom in fact he had purchased it, yet there can be no-doubt as to what land was meant. In arriving at the same result as regards the Hays land, we are only required to suppose that the testator overlooked Dr. J. C. Hays in his — 25 — description, and referred exclusively to the original owner of the whole, Dr. John J. Hays. The same result can be still more easily reached by adopting, not an uncommon rule of construction, by making the antecedent substantive heirs distributive, making the sentence read thus: acquired by purchase from, the heirs of Thomas Shepherd, “the heirs” of Dr. Hays, &c. In this view the testator could only have referred to Dr. John J. Hays, because his brother, Dr. J. C. Hays, was living at the time. We are next to test the correctness of this construction, by ascertaining how far it would harmonise the remaining portions of the will. The two descriptions employed by the testator in the sixth clause, and which, by the construction placed upon them by the appellant, would be contradictory of each other, are made by this- construction to harmonise perfectly. The lower farm, where Knode resided, and the three parcels, &c., are shown to he the same land—the latter description being merely suggestive of what was meant by the previous designation-. The small portion of land taken off from the testator’s original tract, or home farm, of three hundred acres, adjoining the land purchased from Mr. Price, as executor, to be added to the lower farm,, is the part which was excepted out of the devise to Henry as the part of the home farm which was to go to William. Looking to the condition of the testator, with reference to his several children, as well as his real estate, we have no hesitation in saying that the construction which we have placed upon his will is the one he intended it should bear. In the view we have taken of this case, we must regard the direction to the executors, contained in the eighth clause, to sell the residue of the veal estate, as merely precautionary, inserted to meet the contingency of having omitted to devise any part of it in the previous clauses of the will. We have not deemed it necessary to examine and pass upon in detail the several prayers offered by the counsel, or specially to consider the instruction given by the court. The judgment was for the. defendant, and the plaintiff could have — 26 — framed no prayer under this will which the court ought to have granted, by which a different result could be attained. Whether the prayers and instructions were right or wrong, we find no error in the judgment, and therefore affirm it. Judgment affirmed.