Flynn v. Holman

Weaver, J. Charity E. Flynn died April 26, 1894,. owning three tracts of real estate described as follows: The southeast quarter of the southwest quarter of section — 732 — 18, in township 72 north, of range 22 west; also the north •one-fourth of the northeast quarter of the northwest quarter of section 19, in the same township and range; also the south fifty-eight feet of the north one hundred and •eighteen feet of lot 6-in the northwest quarter of section 13, in township 72 north, of range 23 west. The deceased was a divorced woman, and left as her sole surviving heirs •and next of kin two sons, Cyrus J. Flynn and Charles A. Flynn, and one daughter, Sarah L. Holman. She left a will, of which the following (except the marginal' figures, added for convenience of reference) is a verbatim copy: LAST WILL & TESTAMENT ■( 1) Realizing the Fraility of Human Nature & the Í2) Uncertainty of Life I Charity E Flynn of Lucas 3)County Iowa of Lawful Age & Sound Mind 4)Make & Publish this as my Last Will & testament 5)As follows viz I hereby give & Bequeath to my , ( 6) Son Cyrus J Flynn one Bed & Bedmg & whotsoever ( 7) House hold good he may see fit to keep As his ( 81 Own, & keep All I ow him in Money & Notes ( 91 & to My son Charles A Flynn one Bed & Bedding (10)& whotsoever house hold goods he may wish (11)To keep & the Balance sole & Be Equally devided (12)Between Cyrus J & Charles A Flynn (13)Further I hereby give & Bequeath to My Daughter (14)Sarah L Holman the sum of one dollar (15)The total Amount of hir Shair to Be Paid (16)to hir within 3 years After my Decease 1171 By Cyrus J Flynn 18)& further More All the following Lands to wit 19)The S E, S W in section 18 range 22 40 acrs 20)& one fourth of the N E N W in Section 19 10 aeré 21)When sold to Be Equaly devided Between 22)Cyrus J & Charles A Flynn after All debts is Paid 23)& furthermore all the Personal Property of whot 24)Soever kind I may own At my deth shal (25)Belong to Cyrus J Flynn As his own (26)& hold in his own name for Ever (27)1 further Desire that my son Cyrus J Flynn (28)Pay all Just Debts or claims Against me (29)At my Decease As soon as Practicable' (30)& All my funeral Expences to Be Paid (31)By Cyrus J Flynn — 733 — 132) I hereby Make & Appoint (33) Gyrus J Flynn Administrator of this (34) My Last will & testament without (35) Bond or Security to Be given By him (36) Further I hereby give & Bequeath to my Son (37) Gyrus J Flynn All of my Money Notes (38) Mortgages Live stock & farm .Implements (39) to Charles A Flynn Oharity E Flynn This will was duly admitted to probate, and Gyrus J. Flynn qualified and acted as executor. On May 3, 1898,. the executor filed his final report, showing, among other things, that he had paid Sarah L. Holman $1, and had in his said representative capacity conveyed the several tracts, of land aforesaid to himself and to his brother, Charles-A., in equal shares, as being, in effect, a distribution of said property in accordance with the intent of the testatrix expressed in her will. These conveyances appear to-have been presented to and approved by the court, but were never recorded, and have since been lost. The final report was approved by the court, and the executor discharged. Thereafter, on August 27, 1900, this action was-begun by Gyrus J. Flynn and Charles A. Flynn, alleging the facts above set forth, and asking to have their title to-said land confirmed and quieted. The answer of Mrs.. Holman denies the title of the plaintiffs, and alleges, in substance, that the will, properly construed, gives to her the forty-acre tract in section 18, and that, if such construction cannot be upheld, then the will, so far as relates-to said tract, is void for uncertainty. She further claims-that the lot or tract of land in section 22 is not described by the will, and that, as one of the heirs of her mother,, she is owner of a one-third interest therein. Before the case-came on for trial, Gyrus J. Flynn died testate, making his brother, Charles, A., his sole legatee and devisee. The district court found the will of Oharity E. Flynn void for uncertainty as to all the lands, and that title thereto, passed from the testatrix by descent, and not by will, to734 her three children in equal shares. Upon this basis Charles A. Flynn, as one of the three heirs of his mother, and as devisee under the will of his brother, Cyrus J. Flynn, was adjudged to be the owner of an undivided two-thirds of said lands, and Sarah L. Holman to be the owner of an undivided one-third. From the decree thus entered Charles A. Flynn, surviving-plaintiff, appeals. As the finding of the district court is stated in general terms, and does not indicate whether the uncertainty found in the will is in respect to the description of the property devised or as to the identity of the devisee, we will examine the instrument with reference to both these features: i. imperfect of land: extrinsic evi- , denceI. The land mentioned in the will is there described as “the S E, S ¥ in section 18 range 22 forty acres & one fourth of the N E N W in Section 19 ten acres.”' The description of the fractional parts of a section by abbreviations or initial letters is a matter of common and general usage and cannot be said to create any uncertainty as to the testatrix’s meaning. Harrington v. Fish, 10 Mich. 415; McCready v. Lansdale, 58 Miss. 877; Jenkins v. McTigue (C. C. A.) 22 Fed. Rep. 148. It will be observed that the will fails to name the county or state in which the land lies, and in one instance omits the number of the township, and in the other the township and range These omissions do create an apparent uncertainty as to the subject of the devise, for it is a matter of common knowledge that in our system of land surveys there are many townships and ranges containing sections numbered 18 and 19, any one of which may answer the description given in the will. The inquiry then presents itself whether the will may be aided by proof of extrinsic facts and circumstances tending to point out and designate the particular tract or tracts of land which the testatrix intended to devise. The question is one not free from difficulty, but we think the weight of authority anddhe tendency of our own decisions require — 735 — an affirmative answer. To ascertain the intent of the testator is the one object to which all testamentary construction is directed. The- general proposition is that such intent must be derived solely from the language of the instrument. But in reading that language and defining its meaning the court will put itself as far as possible in the position of the testator, and take into consideration the circumstances surrounding at the time the instrument was executed. Perry v. Hunter, 2 R. I. 80; Blackmore v. Blackmore, 3 Sneed, 365; Adamson v. Ayres, 5 N. J. Eq. 353; Lassitur v. Wood, 63 N. C. 360; Hutchison's Appeal, 47 Pa. 84. Under this will it was shown or conceded on the trial that at the date of the will in controversy Mrs. Flynn was a divorced women; that the two sons and daughter above named were her only children; that she was then the owner of the southeast quarter of the southwest quarter of section 18 and the north one-fourth of the northeast quarter of the' northwest quarter of section 19, in township 72, range 22, in Lucas county, Iowa; that the third, or smaller, tract or lot hereinbefore described was purchased by her at a later date; and that she neither had nor owned any other real estate. Reading the will in the light of these established facts, can there be any serious doubt as to what tracts of land were intended by the testatrix when she made use of the description “S E, S W in section 18 range 22 forty acres” and “one fourth of the N E N W in section 19 ten acres?” If instead of this description she had said, “The fifty-acre farm on which I reside,” no one' would dispute the sufficiency of these words to carry the title or the right of the devisee to supply the section township and range by parol evidence. Hopkins v. Grimes, 14 Iowa, 73; Wigram on Construction of Wills, 8; Doolittle v. Blakesley, 4 Day, 265 (4 Am. Dec. 218). Yet is not the description actually employed by her as capable of being made definite and certain as in the case supposed? Presumably the woman was of sound — 736 — mind, and there is nothing bo indicate that in the solemn act of making a will for the distribution of her estate after her death she indulged in . the idle effort to devise property which she did not own, and left wholly undevised the property she did own. She was then the owner of just two pieces of real estate; She devised two pieces and no more. The description of each is absolutely accurate-so far as it goes, and in applying it to these lands not a-clause or word of the language of the will must be rejected, but all are given full force and effect. It is said in behalf of appellee that the will in this respect presents a patent ambiguity, and therefore parol evidence to identify the property is inadmissible. While the authorities are at variance upon the question thus-raised, and there are cases which seem to sustain the appellee’s position, we think that, according to the better doctrine, there is no patent ambiguity in this description,. or, if such am biguity exists, it forms one of the exceptions to the rule which excludes parol testimony. This question was presented to the Illinois court upon a description substantially as follows: “One and one half acres in the Northwest corner of section five in. McDonough county, state of Illinois.” It is there said: “If there had been but one section five in McDonough county, the description would have been perfectly certain. The ambiguity arises-from the fact there are several sections bearing that number. The ambiguity, then, is latent, arising not upon the face of the deed, but arises only when it is ascertained. de hors the deed what are the boundaries of McDonough county, and that they are such as to include several sections five.” Bybee v. Hageman, 66 Ill. 519; Clark v. Powers, 45 Ill. 283; Dougherty v. Purdy, 18 Ill. 206; Halladay v. Hess, 147 Ill. 588 (35 N. E. Rep. 380). Our own holding in Chambers v. Watson, 60 Iowa, 339, is also-in point. In that case the will described neither the town ship, nor range, nor the part of section in which the737 testator’s land was located, yet we held it was not such an ambiguity as to make the devise void, and that extrinsic evidence could properly be introduced to point out the land. We treated it as a case of imperfect description, rather' than an ambiguity in the technical sense, and applied to it the general rule by which, while parol testimony as to the testator’s intent is generally inadmissible, yet resort may be had to it in order to apply the devise to the subject-matter ,and point out the very property which the will was intended to operate upon. In Eckford v. Eckford, 91 Iowa, 54, the will described the “southeast” quarter of a certain section The testatrix did not own the southeast quarter, but did own the southwest quarter of that section, and we held that, under the circumstances shown to exist, the southwest quarter was the land intended to be devised, and the will 'was construed accordingly. Stewart v. Stewart, 96 Iowa, 620; Patch v. White, 117 U. S. 210 (6 Sup. Ct. Rep. 617, 29 L. Ed. 860); Whitcomb v. Rodman, 156 Ill. 116 (40 N. E. Rep. 553, 28 L. R. A. 149, 47 Am. St. Rep. 181); Hawkins v. Garland’s Adm’r., 76 Va. 149 (44 Am. Rep. 158). An instructive case, very like the one at bar, has been decided by the Pennsylvania court, and thq principle here recognized was there approved. Gaston’s Estate, 188 Pa. St. 374 (41 Atl. Rep. 529, 68 Am. St. Rep. 874). The purpose for which extrinsic evidence may be legally admitted is not to add-to or vary the meaning of a will nor. to prove an unexpressed intention of the testator, but to enable the court, by the light of the circumstances surrounding the execution of the instrument, to determine just what was meant by the words actually employed by him. McCorn v. McCorn, 100 N. Y. 510 (3 N. E. Rep. 480); Fish v. Hubbard’s Adm’rs, 21 Wend. 651; Crosby v. Mason, 32 Conn. 482; Smith v. Bell, 6 Pet. 75 (8 L. Ed. 322). Broom’s Legal Maxims, 612, states the rule to be “that — 738 — extrinsic evidence is unquestionably admissible for the purpose of showing that the uncertainty which appears upon the face of the instrument does not in point of fact exist, and that the intent of the party, though uncertainly and ambiguously expressed, may yet be ascertained by proof of facts to such a degree of certainty as to allow of the intent being carried into effect.” Following these authorities, and applying the principle therein approved to the will before us, we think it clearly appears that the testatrix intended to devise the forty-acre tract and the ten-acre tract owned by her, and hereinbefore particularly described, and that such intent must prevail if the will be otherwise valid and effective. 2. consxrocxion of win. II. The remaining question affecting the two first-mentioned tracts of land is whether there is any fatal uncertainty in the will in the matter of designating or naming the person to whom the devise is maqe9 inspection of the instrument indicates at once that the scrivener was an unlearned person. Many of the words are misspelled, and the language is awkward, involved, and obscure, and unaided by punctuation. It is the business of the courts, however, to deal with such instruments, and, if it be found possible within the bounds of reasonable interpretation, declare and give effect to the intention embodied therein. To accomplish this we may, if necessary, transpose words (1 Jarman, Wills [5th Ed.] star page 499); we may supply omitted words((l Jarman, Wills, [5th Ed.] star page 486); and we may, if need be, disregard punctuation where it exists, or insert it where it does not exist (17 Am. Eng. Law [2d Ed.] 20). It is also a fundamental rule of the law of wills that some effect shall be given the instrument, if possible; and where two constructions may be given to the language, one of which will sustain and the other defeat the will, the one sustaining it is to be preferred. Banning v. Banning, 12 Ohio St. 437; Den v. Crawford, 8 N. J. Law, — 739 — 97; 1 Jarman on Wills, 156. The fact that the paper was evidently drawn by an ignorant or unskilled person must also be considered by the courts, and the language employed by such a person given a less rigid and technical interpretation than where the evidence of skill and technical knowledge in the writer is apparent upon the face of the instrument. Delph v. Delph, 2 Bush, 171; Brasher v. Marsh, 15 Ohio St. 108; Weeks v. Cornwell, 104 N. Y. 325 (10 N. W. Rep. 431). Reading the will in controversy, it be comes at once apparent that the chief difficulty in placing an interpretation upon it is found in endeavoring to so separate the text into distinct sentences, clauses, or paragraphs that each may express the idea intended to be conveyed. This difficulty we think is by no means insurmountable. Upon a careful study of the language, it may, without violating any rule of construction, and without leaving any part meaningless, be read in seven successive divisions or clauses as follows: (1) lines one to twelve, (2) thirteen to seventeen; (3) eighteen to twenty-two; (4) twenty-three to twenty-six; (5) twenty-seven to thirty-one; (6) thirty-two to thirty-five; and (7) thirty-six to thirty-nine —each inclusive. Thus arranged, the effect of the several paragraphs is, first, to give her. household goods to her sons; second, to give her daughter the sum of $1; third, to give, the two tracts of land then owned by her, or the proceeds of the sale thereof, to her two sons in equal shares; fourth, to give her personal property generally to the son Cyrus J.; fifth, to require Cyrus J. to pay all claims against her estate; sixth, to appoint Cyrus J. executor of the will; and, seventh, to give her notes and mortgages to Cyrus J., and her farm machinery to Charles. Appellee undertakes to read lines thirteen to nineteen inclusive, as constituting one clause; making provision for the daughter, and thereby indicating her as the devisee of the forty-acre tract; but this is a forced and unnatural construction. It is clear that by the words, “& further — 740 — More All the following Lands to wit,” the testatrix had reference to both tracts, and that she was making like-disposition of both. If the appellee is right, and the forty-acre tract is included in the devise to her, then line twenty must also be included in that paragraph, thus giving her the ten-acre tract also — a construction which would render-lines twenty-one and twenty-two entirely meaningless.. It is true that there is an apparent inconsistency in-the disposal made of the personal estate, which no arrangement of the paragraphs will eliminate; but this-case involves the real estate only, and it is unnecessary to-pass upon the rights of the parties in any other respect. It may, however, be remarked that, where a testator has-given his personal estate in general terms to A., and elsewhere in t,he same will gives specific articles or items of personalty to B., the law will not construe such provisions-as inconsistent or uncertain and void, but will uphold the-specific gift to B. as an exception from the operation of the general gift to A. Obviously, an application of this-rule will remove most of the seeming ambiguity or uncertainty in the several bequests made by Mrs. Flynn. The interpretation we place upon her will is the only one which appears to give effect to the instrument in all its parts,., and is, we believe, a correct exposition of the intent sought to be expressed by the testatrix. We therefore hold that-the will is not void for uncertainty as to the devisees of the two tracts of land therein mentioned, and that the-sons of the testatrix are the beneficiaries of such devise.. ........ passes. . III. We now turn our attention to the third tract of land owned by Mrs. Flynn at the time of her death, and described as the “south 58 feet off of the north 118 feet of lot 6, in northwest quarter of southwest-' of section 18, township 72, range 28,. jn jjUcas ccran-t;y” As already shown, this land was purchased by the testatrix after the making of her will, and is, of course, not mentioned therein. After741 ■acquired property will pass under the terms of a will •whenever the intention to so provide is clear and explicit. -Code, section 3271; Briggs v. Briggs, 69 Iowa, 617. But ■ a reading of the will in this case seems to reveal nothing expressing or necessarily implying such an intent. There is no general devise of land or real estate, and the only mention of that class of property is made with specific 'reference to the particular tracts which the testatrix owned rat the date of the will. Neither is there any residuary • clause or devise into which, in the absence of a specific devise, such property may fall. We are therefore con■strained to hold th at this tract of land must be treated as intestate property, the title to which passed by descent :from Mrs. Flynn to her three children in equal shares. Opposing this conclusion the appellant says that by reason of the direction given in the will to sell the lands .and divide the proceeds between the sons, we should, ■under familiar principles, treat the entire estate as personal property, and the bequest of $1 to appellee as meas-uring her entire interest therein under the will. The weakness of this proposition is seen in the fact that the ■ direction to sell has reference only to the specific tracts mentioned in the devise, and does not, by any fair application, have reference to other lands which the testatrix might thereafter acquire. There can be little or no doubt ■ that the testatrix intended by her will to dispose of all the property, both real and personal, she then possessed, and, for reasons not disclosed, to limit her daughter’s share 'thereinto the nominal sum of $1. This, we think, is fairly indicated by the statement that this sum shall be the total amount of her share. It may also be true that she did not in•tend the daughter to have any benefit from her subsequently ■acquired property, and believed the will was- sufficient to have that effect," but we find no- declaration to this effect, -either in form or substance. The conclusions we have .announced require that the decree of the district court be — 742 — reversed as to the two tracts of land mentioned in the will, and affirmed as to the third or remaining tract. Decree to this effect, and quieting the title of the respective parties in' harmony with the views herein expressed, may be entered in this court or in the district court, as the appellant may elect. Costs will be taxed two-thirds'to the appellee and one-third to the' appellant. —Modified and affirmed.