Eckford v. Eckford

Bothrock, J. [55] There is no question made as to the validity of the will. It is conceded by all the parties that it was legally executed, and that by its terms it-disposed of all of the estate of Janet Eckford, the testatrix. The controversy as to the quarter section of land is whether it passed to the defendants by a specific devise, or whether it was devised to the plaintiffs under the residuary clause of the will. To the -end that the question presented may be fairly understood, it is necessary to set out so much of the will as presents the claim of the defendants that the land passed to them by the specific devise. It is as follows: “I am ° the owner of the following described real estate, situated in Mitchell county, Iowa, to wit: The [56] east half of the northeast fractional quarter of section number two (2), township number ninety-eight (98), range number seventeen (17) west of the fifth principal meridian, which said premises shall hereafter be designated as parcel number one (1) of my estate. Also, the south half of the southeast quarter of section number thirty-five (35), township number ninety-nine (99), range number seventeen (17) west of the fifth principal meridian, which last-described parcel shall hereafter be designated as parcel number two (2) of my estate. Also, the southeast quarter of section number fourteen (14), township number ninety-eight (98), range number seventeen west of the fifth principal meridian, * * * which shall be hereafter designated as parcel number three (3) of my estate.” Other tracts of land are grouped together, and designated as parcel number 4 of the estate. Devises of these several parcels were made to the several persons whom the testatrix named as the objects of her bounty. The devise of parcel number 3 was. made as follows: “It is my will, and I hereby give and devise to my brother James Eckford, the aforesaid parcel number three of my estate.” The devise was to said James Eckford, a defendant herein, for life, and at his death it was devised to the other defendants. [56] The question at issue between the parties is found in that part of the will which is in italics, and the land in controversy involves the title to the quarter section in section 14, township 98, range 17. That part of the will which describes the quarter of the section is a false description. Janet Eckford did not own the southeast quarter of that section. She did own the southwest quarter of the section. The defendants filed an answer and cross bill, in which it was averred that the testatrix lived upon the land in controversy, and that it was known and commonly described as her “home farm;” [57] that she intended and understood that by her will she was disposing of the real estáte of which she might die seized, and none other, by express provisions and accurate description; that the land in controversy was erroneously described in the will by mistake or inadvertence of the person who drafted the will; and that it was not the intention to devise the land to the defendants as falsely described, but that the devise as made was a sufficient and valid devise to the defendants. This answer and cross bill was attacked by motion and demurrer, and an agreement was made by the parties that the cause should be determined on its legal merits, “and obviate all necessity of parol evidence upon the part of either party.” This case has once before been under consideration by this court, and an opinion was filed reversing the judgment of the district court. 53 N. W. Rep. 345. A rehearing was granted, and the case has been again exhaustively argued orally and in printed arguments. On the first submission, counsel gave much attention in argument to the various averments of the answer and cross bill, which do not now appear to us to be material. We may say, in a general way, that the rule in the construction and interpretation of wills is fundamental that there can be no reformation of the instrument on the ground of mistake, accident, or surprise, as in case of conveyances of real estate or other contracts. [58] 4 5 [57] We need not cite authorities to sustain this statement. But there is another principle applicable to the facts of this ease which is fundamental, — that a false description of real estate in a will can not defeat the devise if, after rejecting the false description, there is a sufficient designation or description of the subject of the devise to lead to an identification of the land in controversy. After a thorough examination of authorities cited in argument in this case, we think that as. [58] clear a statement of the principle as we have found is contained in Christy v. Badger, 72 Iowa, 581, 34 N. W. Rep. 427, in which it was said: .“If, after the false description is discarded, there remains in the devise language sufficient to direct to the identification of the subject with sufficient certainty, an estate will pass thereby. But when false language is eliminated, and nothing remains directing inquiry which may result in discovering the true subject of the devise, it is void.” We think that a proper application of the language of the will in the case at bar to this principle is decisive of the controversy. It is everywhere held that the intention of the testator as expressed in the will-is the controlling consideration in determining the rights of devisees. We have set out enough of this will to clearly show that the testatrix claimed to own the land which she attempted to dispose of by her will. It is described as being in Mitchell county. The quarter section in controversy is correctly described as being in section 14, township 98, range 17, west. This is an accurate description of the land so far, but, in describing the part of the section in which the land was situated, that description is false. If the language had been “one quarter of section 14, township 98, range 17,” the estate would have passed, because she described the land as being owned by her, and this language is sufficient to lead to an identification of . the land actually owned by her. This identification may be made by extrinsic exidence. It involves what is called a latent ambiguity. We do not think it is necessary to elaborate the case by a review of authorities which we think fairly sustain this view. The following are some of the cases which we regard as in point: Patch v. White, 117 U. S. Rep. 210, 6 Sup. Ct. 617, 710; Pocock v. Reddinger, 9 N. E. Rep. (Ind. Sup.) 473; Cleveland v. Spilman, 25 Ind. 95; Groves v. Culp, 31 N. E. Rep. (Ind. Sup.) 569; Allen v. [59] Bowen, 105 Ill. 361; Decker v. Decker, 121 Ill. 341, 12 N. E. Rep. 750; Seebrock v. Fedawa, 50 N. W. Rep. (Neb.) 270; Covert v. Sebern, 73 Iowa, 564, 35 N. W. Rep. 636; Asylum v. Emmons, 3 Bradf. (Sur.) 144. Some of these cases hold that, where there is a false particular description of the devise, the express assertion of ownership in the devisor is in the nature of description, and is sufficient to authorize extrinsic evidence in identification of the land. In conclusion, we have to say that our views in this case express what we believe was the actual intention of the testatrix, and that it is sufficiently expressed. It appears to us that any one who will take this instrument, and consider all its parts, — take it “by the four comers,” as it is sometimes expressed, — must reach the conclusion that, if the false description is rejected, there are good reasons for holding that there is enough remaining which unmistakably leads to the conclusion that the devise to the defendants is valid, and that any •other result would defeat the intention of the testatrix as clearly manifested by the will, aided by the simple inquiry as to what quarter section she owned in section 14. The judgment of the district court is affirmed.