Tewksbury v. French

Marston, C. J. Plaintiff brought .ejectment to recover possession of certain real estate, and her right to recover depends upon the construction to be given the second clause of the will of George Young, deceased, through whom she claims title. If under the clause but fifteen acres were devised to her, then she is not entitled to recover, while if thirty acres were devised she would be entitled to a verdict and judgment. George Young, being the owner of a certain tract of land containing one hundred or one hundred and two and one-half acres of land, made certain specific bequests of portions thereof to certain of his children, and to three other of his children all the rest and residue of his real estate, share and share alike. Besides the above land he owned none other. In three of the specific bequests he described the land according to the government subdivisions; he also described it by metes and bounds, giving the frontage of each piece on a certain road, and the depth of each parcel, and. the number of acres therein contained. These descriptions did not harmonize. If the number of acres given, and the number of rods frontage and the depth were to govern, and in these respects there was no conflict, then, plaintiff must fail. That portion of the will under which plaintiff claimed was as follows: [102] “ 2d. I give and devise to my daughter, Mary Tewksbury, wife of Sidney Tewksbury, for and during her natural life, with the remainder to her heirs forever, in fee-simple, the south three-quarters of the south half of the south half of quarter section lot number seventeen, in the ten thousand acre tract, so-called, situate in the said township of Hamtramclc, containing fifteen acres of land, and being bounded westerly by the road running from the city of Detroit to Pontiac, known as the Pontiac turnpike, being fifteen rods wide on said turnpike, running back eastwardly of the same width one hundred and sixty rods and being the same land on which said Sidney Tewksbury now lives.” The south three-quarters of the south half of the .south half of quarter section seventeen contained thirty acres, and plaintiff claims this description must govern and control what follows, in accordance with the well-established rule of construction that prominent monuments control. The general rule undoubtedly is that in the construction of the description of lands contained in a deed, known monuments control courses and distances, and the reason given for this rule is that “ ordinarily, surveys are so loosely made, instruments so liable tobe out of order, and admeasurements, especially in rough or uneven land or forests, so liable to be inaccurate, that the courses and distances given in a deed are regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to known monuments and boundaries that are referred to in the deed as indicating and identifying the land.” 3 Washburn on Neal Pr. 631. In some cases where accurate measurements had evidently been made, great confidence was placed therein as a means of ascertaining what was intended to be conveyed. Id. Another rule given is that “ where more than one description is given, and there is a discrepancy, that description will be adhered to as to which there is the least likelihood that a mistake could be committed, and that be rejected in regard to which mistakes are more apt to be made.” Id.; 1 Green-leaf on Ev. § 301, note, and cases cited. Indeed all rules on the subject are but aids to assist in arriving at the expressed intention of the parties, which, when ascertained, is to be [103] carried out. “ To determine tliis we must look at the whole will and give it effect according to its intent, as far as that can be done lawfully.” Toms v. Williams 41 Mich. 565 ; Jameson et al., appellants etc. 1 Mich. 99; Kinney v. Kinney 34 Mich. 254; Jones v. Jones 25 Mich. 401. It is very evident that where there is a fixed, permanent monument, as a river, lake or highway, or one established by the parties, that while a mistake may occur as to the course or distance or the quantity of land, there could not well be as to the visible monument, or the lands intended to be conveyed. The land and the fixed, permanent monument are visible to the parties; they can see what their minds have agreed upon, and what is to be described by words in their conveyance. In giving such a description by mentioning the monuments, there is but slight chance for mistake.; and yet, no matter how clearly the monuments may be described, if courses or distances or number of acres are attempted to be given, mistakes may much more readily occur. So also the descriptions of lands by sections and subdivisions thereof are ordinarily well known, and mistakes could not be likely to occur where parties had adopted and used such a description. Where, however, the partiés attempt, as in this case, to describe a small part of an entire parcel, very great care must be exercised to avoid mistakes. Any attempt to so subdivide a quarter section of land as to correctly describe fifteen acres from off one of the sides thereof -yould require a very deliberate use of terms, and could not be done in haste or without careful computation. In the absence thereof, it may safely be said that a mistake would almost inevitably occur. It appears that the lands owned by the testator had a frontage of one hundred rods on the Pontiac road, and that the lot was one hundred and sixty rods deep. Each rod fronts on the Pontiac road, and running back the same width the full depth of the farm, would contain one acre. This seems to have been well known to the testator, as clearly appears from the same and other clauses in the will. Thus, [104] the tract he has attempted to describe he says contains fifteen acres of land, being fifteen rods wide on said turnpike, and running back eastwardly of the same width one hundred and sixty rods. In the fifth subdivision of the will he gives to his daughter Sarah Ann twelve and one-half acres, lying next north of a certain other parcel, “ to be twelve and one-half rods wide fronting on the Pontiac turnpike, and running back the depth of the said quarter section seventeen.” It seems quite clear to my mind that the testator, in giving the number of acres with a frontage and depth corresponding thereto, was much less likely to make a mistake than in his attempt to follow the governmental subdivisions. Again, if we give each of the specific bequests to the devisees named in accordance with the first description, the entire real estate of the testator will have been disposed of, leaving nothing for Eliza, Adelaide and Ellen; while if we follow the number of. acres, to each of these three will be given a share equal to that of Sarah Ann. It appears that thus far we have given no effect to that clause which speaks of this as “being the same land on which said Sidney Tewksbury now lives.” Evidence was introduced tending to show that Sidney Tewksbury then lived upon and cultivated the front part of the thirty acres. Admitting this, the clause is equally applicable to a devise of but fifteen acres. A devise of fifteen acres would be the same.land, but not the whole thereof. Besides, it clearly appears that the house in which Tewksbury lived was upon the fifteen acre parcel; and under the evidence it might be a matter of some considerable doubt whether it could fairly be said that Tewksbury was living upon the thirty acre tract. Certainly, a part thereof was not and never had been in his possession, either actual or constructive. I am of opinion that no error was committed and that the judgment should be affirmed with costs, and the record remanded for farther proceedings under the statute. Graves and Cooley, JJ. concurred.