Groves v. Culph

Elliott, J. — The controversy between the parties to this record is as to the ownership of part of lot sixteen in the city of Eising Sun. The merits of the case can not be ascertained and determined without quoting from the will executed by George Carpenter, deceased. In item third of the will it is written, among other things, that “ I give, will and devise to my wife, Susannah Carpenter, the house and lot on which I now reside, being parts of lots number fifteen and sixteen in the city of Eising Sun, Indiana, to have and to hold the same and all the appurtenances thereunto belonging for and during her. natural life.” Item fourth of the will reads thus: “ I further will, give and devise the same lot number fifteen so devised to my said wife during her lifetime, together with all the appurtenances thereto belonging, to my youngest daughter, Eliza Jane Carpenter, and to her heirs in fee simple forever, and free from incumbrance, and to come to her peaceable possession at the death of her said mother.” There is no other reference either to lot fifteen or lot sixteen in the will except that made in the items designated. The appellant’s position is that the will devises to the testator’s daughter, Eliza Jane, lot fifteen only, and that parol evidence is not admissible to explain, qualify or limit the language of the instrument. The appellees contend that there is a mistake in the description of the property intended to be devised to the testator’s daughter, and that, as the mistake is apparent on the face of the will, extrinsic evidence is admissible to explain the mistake, and show what property the testator intended to devise to his daughter. It is undoubtedly the general rule that where property is well described, and there is no latent ambiguity in the language employed, nor any mistake apparent upon the face of the will, extrinsic evidence can not be resorted to for the purpose of qualifying, limiting or aiding the description. Courts will not change the words of a will by considering extrinsic evidence unless the instrument itself supplies suf [188] ficient reason for inferring that there was a mistake in drafting it, or sufficient indications of a latent ambiguity are disclosed. Judy v. Gilbert, 77 Ind. 96, and authorities cited; Bunnell v. Bunnell, 73 Ind. 163; Sturgis v. Work, 122 Ind. 134. We regard the rule as settled, and we can not depart from it, but we do not regard this case as within the rule. Our conclusion is that if the will itself does not ex vi termini vest a fee in the daughter, it at least discloses a mistake on the part of the draftsman of such a nature as to make it proper to resort to extrinsic evidence. We do not say that it was necessary to resort to such evidence, for we incline to the opinion that the will itself shows that it was the inten- ’ tion to vest in the testator’s daughter the fee to the same property as that in which a life estate was vested in the wife. We are satisfied, at all events, that there was no harm done the appellant in resorting to extrinsic evidence, for that evidence comports with the language of the will, and makes the intention of the testator quite clear. Our reason for the conclusion that the daughter is entitled to the same property in fee as that in which the mother was given an estate for life is that the will, taken as an entirety, fairly and justly requires this construction, inasmuch as there are words which in themselves indicate that the daughter should receive the fee after the termination of the mother’s life estate, and there is no other disposition of the fee except that made in the devise to the daughter. It is a familiar rule that a will is not to be so construed as to create a partial intestacy when that result can be reasonably avoided. In this instance it is reasonable to conclude that the testator did intend that all of the property on which he resided should go to his daughter, and hence it is our duty to avoid the conclusion that he left part of that property undisposed of by his will. We are well satisfied that the judgment below is right upon the merits, and refer to the following cases as supporting our conclusion: Sturgis v. Work, supra; Pocock v. [189] Redinger, 108 Ind. 573, and cases cited; Jackson v. Hoover, 26 Ind. 511; Cruse v. Cunningham, 79 Ind. 402; Black v. Richards, 95 Ind. 184; Cleveland v. Spilman, 25 Ind. 95. Filed June 17, 1892. Judgment affirmed.