Ruffin, C. J. It is extremely probable from the admissions of the parties and the circumstances of the case, that the alleged mistake really took place in writing this will; and the Court would gladly correct it, if it could be done consistently with the law. But it is manifestly impossible to do so upon the basis of any guide furnished by the will; and, therefore, that, if done at all, it must be exclusively on extrinsic evidence of an intention to give a negro, who is not given by any words in the will. That would in truth be to strike one word out of the will, and insert another in the place of it by parol proof; which cannot be done without introducing a multitude of mischiefs, with which the privafe hardship and inconvenience sustained by these parties can bear no comparison.
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UpLaw has not yet analyzed Barnes v. . Simms. The absence of a flag is not a finding that it is good law.
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BARNESv. SIMMS,40 N.C. 392(1848)
EDWIN BARNES v. ZILLA SIMMS ET AL.
Supreme Court of North Carolina
1. When a will fully describes a person or thing, whether by many or few particulars, it is not competent to receive parol evidence of what was intended, though nothing be found to answer the description; for to pass another thing, or to pass the thing to another person than that described in the will, would be to give operation to the will over a thing or in favor of a person not mentioned in it.
2. Thus, where a testator bequeathed a negro by the name of "Aaron," and it was shown that he had no negro of that name, but had one by the name of "Lamon," not mentioned in the will:Held, that the Court could not say that the latter passed by this bequest.
3. A testator gave to his daughter "M., wife of D.," a tract of land and several negroes and other personal property, and directed that the negroes should work on the land he had given her, "for the support of her and her children; and if the negroes don't make a support, rent out the land and hire out the negroes."Held, that this could not be construed as a devise or bequest to her separate use, as there was not enough to amount to the plain exclusion of the husband:Held, also, that the children of M. took no estate under this devise and bequest.
CAUSE removed from the Court of Equity of EDGECOMBE, at Fall Term, 1848.
James Simms made his will and therein made a number of specific bequests of slaves and other things, among which were the following: "I give to my wife six negroes, Champion, Tony, Chany, Venus, Anaka, and Aaron. Item. I give to my youngest son, Benjamin, eight negroes, Amos, George, Peter, Turner, Pike, Creecy, Rose, and Jack. Item. I give to my daughter Martha, wife of John Dew, a tract of land, called the Bridge and Robinson tract, to her and her heirs forever; also seven negroes, Olive and child, Edy, Hardy, Clarke, Bridget, and Hannah; also one mule; also what stock she is in possession of; also (393) $1,000. Also it is my desire that the negroes I have left her shall work on the tract of land that I gave her, for the support of her and her children; and if the negroes don't make a support, rent out the land and hire out the negroes. I also reserve two negroes to wait upon her; and if she and child should die without any heir, they shall come into the old stock again. Item. My will is that all the residue of my estate, if any, after taking out the devises and legacies above mentioned, shall be sold and the debts owing to me collected, and, if there should be any surplus over and above the payment of debts and expenses, that such surplus shall be equally divided between my wife and all my children."
The bill is filed by the executor against Mrs. Simms, the son Benjamin, Dew and wife, and their child, and the other residuary legatees, to have the rights of those several parties declared. It is stated in the billPage 274that the testator had no slaves by the names ofAaronorPike;but that he had two by the names ofLamonandPite, and that Lamon was the child of the woman Anaka, bequeathed to Mrs. Simms, and a small boy at the making of the will. It appears upon the will and pleadings that the testator professes to dispose specially of forty-eight slaves among his wife and children, of whomAaronandPikeare two; that he had in fact four others, who are not mentioned in the will, namely,LamonandPite, before mentioned, and two other young children, born recently before the making of the will. He had, therefore, in fact, fifty negroes when he made the will. It is contended by the widow and the son Benjamin that the testator intended to give to the former the boyLamonand to the latter the negroPite, and that by a mistake of the writer of the will — who was somewhat deaf and did not distinctly hear the testator's directions — the name ofAaronwas written forLamon, and that ofPikeforPite;and the (394) executor states that he believes such to be the truth, and that he is willing to dispose of those two slaves accordingly, if upon the construction of the will he is authorized to do so.
B. F. Moore for plaintiff.Biggs for defendants.
RUFFIN, C. J.
It is extremely probable from the admissions of the parties and the circumstances of the case that the alleged mistake really took place in writing this will; and the Court would gladly correct it if it could be done consistently with the law. But it is manifestly impossible to do so upon the basis of any guide furnished by the will; and, therefore, that, if done at all, it must be exclusively on intrinsic evidence of an intention to give a negro who is not given by any words in the will. That would in truth be to strike one word out of the will and insert another in the place of it by parol proof, which cannot be done without introducing a multitude of mischiefs, with which the private hardship and inconvenience sustained by these parties can bear no comparison. It has long been settled that written instruments, whether deeds or wills, are to be construed upon their own terms. At least, there must beenough in them, in respect both to the person to take and the subject to pass, to enable the Court to say that the persondoestake and the thingdoespass by the instrument itself. There are, indeed, cases of ambiguity of description in which resort may be had to evidence in aid of the will: for example, to show which person or thing is meant, when there is in the will a sufficient description to which the evidence may fit the person or thing. That is the case when two things or persons come completely within the description: as two white acres, or two cousin Johns. So itPage 275is, also, if the person or thing be described in more particulars than one, some of which are true and some false; then, if enough remains, after rejecting the parts that prove to be false, to identify the (395) donee or the subject, the instrument shall be effectuated. In all those cases there is upon the face of the will no ambiguity, and it arises only when the description comes to be applied; then it is found that there is an uncertainty, which of two persons or things was meant, which are within the words, or whether a thing or person was meant who is correctly described in some particulars, but not in others. But, clearly, if a will describe a person or thing by many particulars, and one is shown who comes up to the description in every particular, it would not be competent to prove by witnesses that the testator did not mean that, but another, though the latter be not within the description, and to give effect to the will as if the description were altered in the instrument itself. That would be to make the will upon the evidence. So, in like manner, when the will fully describes a person or thing, whether by many or few particulars, it cannot be competent to receive such evidence, though nothing be found to answer the description; for, to pass another thing, or to pass the thing to another person, than that described in the will, would be to give operation to the will over a thing or in favor of a person not mentioned in the will at all — in effect, to fill a blank in it, or, rather, to make a blank by striking out and then filling it in another manner. That cannot be done upon any safe principle. In this case there are two terms of description, and two only, of the subject of the bequest. He is said to be named "Aaron" and to be a "negro." The latter is so indefinite as to designate no one in particular. A gift of eight negroes would, indeed, be good as a general legacy of eight slaves. But the present is a specific gift, and the question is, Who are the very negroes given? In such a case the term "negro," designating merely thestatus personae, cannot be construed to be a gift of any individual negro, and therefore cannot be applied to one by evidence. That, (396) then, is the case of a description by a single particular, that of the name; and there is no negro of that name. One would think that there is but one principle applicable to such a case, which is that the gift must fail because there is nothing for it to operate on. It is no case of ambiguity. It would be if there were two Aarons; and, then, it would be admissible to show which of the two wastheAaron. But the attempt is to prove that the testator did not mean to give anyAaronat all, but a different person altogether, namely,Lamon. There is an old case,Beaumont v. Fell, 2 Pr. Wms., 140, that seems to go far to support the proposition, if it be law. A legacy was given toCatharine Earnley, and, there being no such person, it was decreed toGertrude Yardly, upon evidence that she was the person intended, and that the testator frequentlyPage 276called her by the nickname ofGatty, which the writer of the will mistook forKatty. It is to be observed, in the first place, that the master of the rolls put the decision upon the right to receive such evidence by the civil law, in respect to personal legacies, and admitted, in terms, that it could not be heard, by the common law or the statute of frauds, as a devise of land; because, said he, a devise must be in writing, and there would be no writing to entitleGertrude Yardly, had this been a devise of land." That admission must be sufficient at this day to destroy the authority of the case, as a decision upon the construction of the will, since it is certain that now the terms of a bequest can no more be altered by parol than those of a devise. Then it is to be observed that the report is explicit, and that the judgment was put upon the ground that there was no writing to entitle the person to whom the legacy was bequeathed; and, therefore, she took it by force of the extrinsic proof entirely, saving only that the will showed that the testator meant to give it to some person. That is a proposition opposed to every principle (397) for the construction of writings, or establishing their superiority in the scale of evidence over the testimony of witnesses. It has, moreover, not been followed by any similar decision; but there have been many directly opposed in principle to it. There is, indeed, a single case in this country which, upon the authority ofBeaumont v.Fell, ruled the point in accordance with it, in a case somewhat like that before the Court. A person, owning a considerable number of slaves, bequeathed in his will by name exactly the number he had, and among the bequests there was one of fifteen slaves to his wife, and two of the number were designated by the name ofPhillis, whereas the testator had but onePhillis, and he had a man,Phillip, not mentioned in the will. It was held that the wife tookPhillipin the place of one of the women namedPhillis.Tudor v. Terrell, 2 Dana (Ky.), 47. That case, indeed, differs from ours in this, that here there were two negroes in number more than are named in it; and the Court in Kentucky greatly relied on the coincidence in the number. Certainly, that was a strong circumstance, if one person or subject can be substituted for another, which is fully described to show that the Court could in that case probably hit on the right one to be substituted. But the difficulty is to lay down any principle on which the terms of the will can be thus dealt with and one description of the thing substituted for another. The Court thinks it cannot be done. In all the cases hitherto decided in this State there was enough on the face of the will to identify the subject after leaving out every part of the description which was inappropriate. It was so inProctor v. Pool,15 N.C. 370; inSimpson v. King,36 N.C. 11; and inEhringhausv. Cartwright,30 N.C. 39; in the latter of which cases the rule is stated as we understand it, and applied. And as understoodPage 277and applied there, it is deduced not only from the text-writers, (398) but from judicial determinations of the highest respectability. Thus inThomas v. Thomas, 6 Term, 691,Lord Kenyonsaid that the sense of the maxim,falsa demonstratio non nocet, was that thefalsa demonstratioshould be superadded to that which was sufficiently certain before; for there must beconstat de persona, and if to that be added an inapt description, it will not avoid the devise. Thus inGoodtitle v. Southern, 1 M. and S., 299, it was held that a clause "of all my farm and lands, calledTrogues farm, nowin the occupation of A. C.,"passed not only such parts of Trogues farm as were occupied by A. C., but also those occupied by other persons; because the name identified it, and the will gaveallof it, and those general terms were not to be cut down by the subsequent inconsistent description. But inDoe v. Oxender, 3 Taun., 147, andDoe v.Chichister, 4 Dow. P. C., 65, it was held that a devise of "my estate of Ashton," or "my estate at Ashton," could not be extended by evidence so as to take, in addition to lands in Ashton, lands in an adjoining parish. In a more recent case, which, indeed, is in point with the present, that doctrine was solemnly reaffirmed. A testator devised "all my real estates whatsoever, situate in the county of Limerick in the city of Limerick." He had a small real estate in the city, but none in the county, of Limerick." He, however, had other real estates in County Clare; and the question was, whether it could be shown by parol that the testator intended to dispose of the lands in Clare, and that the county of "Limerick" had been by mistake written for the county of "Clare." It was held by the Vice Chancellor that it was competent to hear the evidence, and an issue was ordered to be tried at law. But, upon an appeal, the Lord Chancellor, assisted byChiefJustice TindalandChief Baron Lyndhurst, reversed the decision, upon the ground that it was not a case of latent ambiguity, because there werein the willno words describing lands to which the parol evidence could be applied so as to embrace within it the (399) lands in Clare.Miller v. Travers, 8 Bing., 244. The opinion was given byChief Justice Tindaland is a very able one, discussing both the principle and the cases, and the result was concurred in by all three of the judges. For the same reason it is impossible, without contradicting the will, to make "Aaron" mean "Lamon," there being no other description but the name — unless, indeed, it could be shown thatLamonwas sometimes calledAaron, so as to be known by both names, which is not pretended; and so, likewise, as toPikeandPite.
The Court, therefore, holds that the slaves Lamon and Pite are not specially disposed of in the will, but, with the two others not named, fall into the residue.Page 278
Two points are made upon the dispositions in favor of Mrs. Dew, which are, first, whether the dispositions are to the separate use of the wife, and, secondly, whether the gift is exclusively to Mrs. Dew or to her and her children. Upon the first, the Court is of opinion in the negative. It may be inferred from the will that the testator had not much confidence in the prudence or capacity of Dew for managing the property, and that he had a vague purpose not to trust the property in his hands, but secure it in some way for his daughter. But there is not enough in the will to amount to the plain exclusion of the husband, which the law requires before he can be deprived of his marital rights.Rudisill v. Watson,37 N.C. 430. The Court likewise holds that the children took no estate under the will. The words of gift respect the wife alone, as the sole donee. It is true, the testator says he wishes the land rented and the negroes hired, if they do not make a support; but if they can, he wishes the negroes to work on the land "for the support of her [the daughter] and her children." But if the negroes should be hired and the land rented, he does not give the proceeds to the daughter and her children for division between them, but they go, as arising (400) from the mother's land and negroes, to her. The words, "for the support of her and her children," under those circumstances, express only what the testator supposed would be the appropriation of the profits of the estate by the mother, and were not intended to defeat or in any degree to transfer the estates and money just given to the daughter, from her to her children.
The defendants Dew and wife set up a claim to Lamon and Pite under the reservation of two negroes to wait on her, suggesting that the two thus reserved are those two, and that for that reason they were not mentioned by name in the will. But it is clear that the negroes thus reserved are two of those just before specially bequeathed to Mrs. Dew, and are excepted out of the direction for hiring out the negroes, because they would, at all events, be needed by her as domestic servants.
PER CURIAM. Declared accordingly.Cited: Stowe v. Davis,32 N.C. 435;Knight v. Bunn,42 N.C. 79;Taylor v. Bible Society, id., 204;Institute v. Norwood,45 N.C. 70,73;Joiner v. Joiner,55 N.C. 72;McDaniel v. King,90 N.C. 603;S. v.Sutton,139 N.C. 581.Dist.: Miller v. Cherry,56 N.C. 30.Page 279