Opinion
01-19-1881
WALDRON v. WALDRON and another.
[45 Mich. 351] Austin Blair, for appellant. G.H. Wolcott, for appelles.
A devise in a will described the property by government subdivisions, and also as containing 240 acres or less, and subject to the right of one William Berrien to occupy one-half of the dwelling-house on the premises as reserved in deed, etc. The testate had a 240-acre farm, upon which was a house subject to the condition named, but the description by government subdivision only included 140 acres and did not include the house mentioned. Held, that the whole farm of 240 acres was sufficiently described, and the particular description would not control.
Appeal from Jackson.
Austin Blair, for appellant.
G.H. Wolcott, for appelles.
COOLEY, J.
The bill of complainant is filed in this case to procure an authoritative construction of the will of Emma A. Waldron, late of the township of Sandstone, in the county of Jackson. The testator was the wife of complainant, and the mother of defendant. The provisions of the will upon which the controversy arises relate to the testator's farm, and are as follows:
"First. I give and devise to my husband, Richard Waldron, the equal undivided one-half part of the E. 1/2 of the S.E. 1/4 of the N.E. 1/4 of section No. 7. Also, the W. 1/2 of the S.W. 1/4, and of the S.W. 1/4 of the N.W. 1/4 of section No. 8, all in Township 2 S., of range No. 2 W., in the county of Jackson, state of Michigan, containing 240 acres, more or less, subject however to the right of William Berrien to occupy one-half of the dwelling-house on premises as reserved in his deed conveying said lands to me, to have and to hold to the said Richard Waldron, and to his heirs and assigns forever the premises above described.
"Second. I give and devise to my children William Berrien Waldron and Marion Louise Waldron, the remaining undivided one-half part of the above-described premises, to have and to hold the same to them and to their heirs and assigns forever, subject to the limitations hereinafter set forth."
It is apparent from these provisions that there is some error in the description of the lands which are the subject of the devise. The quantity is specified as 240 acres; but the particular descriptions which are given include 140 acres only. To solve the ambiguity the parties have introduced evidence from which it appears that the testator owned a farm of 240 acres lying together in one compact body on sections 7 and 8 in township 2 S., of range 2 W., in the county of Jackson; that this was purchased by her of William Berrien and that in the conveyance to her Berrien reserved the right to occupy one-half the dwelling-house on the premises. It also appears that the particulars given in the will, in describing the land according to the government subdivision, are applicable to a portion of these lands.
The question then is whether the devise to complainant is limited to the undivided half of the 140 acres particularly described according to the government subdivisions, or will embrace the undivided half of the 240 acres which the testator owned and occupied. It is conceded that one or the other is the true construction. We agree with counsel for defendants that oral evidence cannot be received to explain the intent, except as it may bring before the court such circumstances surrounding the making of the will as may be necessary to an understanding of the terms employed. The evidence of the scrivener as to the statements of the testator made to him preliminary to the drafting of the will must therefore be rejected. To act upon these would be to frame a new will for the testator, based upon an intent which we should reach upon parol evidence, but which she had failed to express in legal form. But we think the testator has sufficiently described in the will the whole farm of 240 acres, and devised to the complainant the undivided half thereof. She names the sections, township, county and state in which it is situated; [7 N.W. 895.] she specifies the quantity; she makes it subject "to the right of William Berrien to occupy one-half of the dwelling-house on the premises, as reserved in his deed conveying said lands to" her, and all these particulars coincide with the land she owned and occupied, and embrace the whole of it. If there was nothing more in the description the case, we think, would be clear. But the remaining portion of the description raised an ambiguity, for it particularly specifies government subdivisions which include 140 acres only. But if this portion stood alone there would still be an ambiguity, for the house, the use of a part of which is reserved to Berrien, is not upon the 140 acres, and the reservation is therefore idle and meaningless if the devise is thus restricted. Moreover it is evident the testator intended the use of the house so far as not reserved to Berrien should pass to her husband, and this intent is defeated if the devise is limited to the smaller quantity.
If the devise was meant to be restricted to 140 acres, the testator committed two mistakes: First, in specifying the quantity; and, second, in supposing that her dwelling-house was upon the land described when it was not. Both these are unlikely mistakes, but the latter especially so, for it seems incredible that the testator should not have known the location of her dwelling-house. If the intent was that the devise should be of an undivided half of the whole 240 acres, there is a mistake in describing the lands according to the government subdivisions; but nothing is more common than such an error. The accidental substitution of one small word for another--such as an of for an and--often introduces incalculable mischief in such descriptions.
It is plain from what has been said that the particulars the testator gives in her will cannot all be satisfied unless the whole 240 acres are held to be devised, and that the devisee cannot otherwise have any use of the dwelling-house. The inference that such was the intent seems, therefore, irresistible. Moreover in that case the testator will not have died intestate as to any of her lands; and as nothing in other parts of the will indicates an expectation that she would do so, this is a circumstance of some importance. On the other hand the description which is given by government subdivisions is only incorrect in that it fails to embrace all the lands; it is correct so far as it goes and therefore is harmless.
Many cases supposed to resemble this were cited by counsel on the argument, but we do not specially rely upon any of them. We decide the case upon its special facts, and on familiar legal principles. We have been requested by counsel to make proper allowance for services in this case; but in Toms v. Williams, 41 Mich. 552, we held this to be the proper business of the probate court. We have no doubt that court will do what is just in the premises.
A decree will be entered in accordance with the views above expressed.
(The other justices concurred.)