
    John Boggs and others v. Thomas F. Taylor and others.
    1. Where words in a will are fairly and. legitimately applicable to one thing as its name, and are equally applicable to another thing as words of description, parol evidence is admissible to show in which of the two senses the testator was in the habit of using the words.
    
      2 Where a testator owned two adjoining farms, which had been for many years cultivated and managed as separate and distinct farms, and were known and designated by him by different names, the farm on which he resided, and which was cultivated by him, being called by him the “ Home Farm,” and the other, which was cultivated by tenants, the “Jo. Boyd Farm; ” hut for several years next preceding the date of his will these farms had béen managed and cultivated by an agent of the testator, as one farm, without regard to the division line between them; and the testator, by his will, devised his “home farm” to his wife. Held: That parol evidence was admissible to prove that the testator was in the habit, as well after the two farms had become so united in their management, as before, and down to the time of making his will, of calling the two farms by their former names, designating the one on which ho resided as the “ Home Farm,” and the other as the “Jo. Boyd Farm.”
    5. Seld, also: That it was not error in the Court to instruct the jury that it was for them to decide in which of the two senses the testator used the words “ home farm,” whether as designating the old home farm, or the entire tract composed of the two thus united.
    Error to the Court of Common Pleas of Muskingum ■County. Reserved in the District Court.
    In 1842, James Taylor, being seized of a tract of land containing about 490 acres, on which he then resided, and also of several other tracts of land, on one of which he had formerly resided, made his last will and testament, containing, among others, the following devise :
    “ First. I give and bequeath mito my beloved wife, Jane Taylor, the whole of my home farm, where I now reside, as an estate in fee simple.”
    After devising several other parcels of real estate to different parties, the testator directs that all his real estate, ■except the “ home farm ” (and other lots and parcels so specifically devised), be equally divided between tbe children of Grondo Taylor.
    The action below was brought by the defendants in error,, who are the children of Grondo Taylor, or their representatives, against the grantees of the widow, to recover possession of about 340 acres, the north part of said tract of' 490 acres, on the ground that said 340 acres constitute no part of the “ home farm,” which it is claimed consisted of only 150 acres, the south part of the 490 acre tract. The-defendants claimed that the “ home farm,” within the true meaning of the will, consisted of the entire tract of 490-acres. "What was the “ home farm ” of the testator, within the meaning of the will, was, therefore, the only question involved in the action. If it consisted of the 150 acres only, then the 340 acres passed to the children of Grondo Taylor. If it consisted of the 490 acres, the whole, of course, vested-in the widow, and passed, by her conveyance, to the defendants.
    The history of this tract of 490 acres, as disclosed by the-evidence admitted on the trial, is substantially as follows: The south part of the tract, containing some 225 acres, was purchased by the testator in 1806, and he resided upon and cultivated it till 1817, having cleared and fenced the south 150 acres, now claimed by the plaintiffs in error to be the home farm, the north fence of the 150 acres being identical with the line now claimed to be the north line of the home farm, and that part of the 225 acres lying north of the fence being wood land. In 1817, the testator purchased 730 acres of wild land lying north of the 225 acres, and then conveyed the entire tract of 961 acres to John Boyd and Joseph Boyd. The Boyds made partition of the land, John taking the 150 acres south of this fence, and about 138 acres in the south-west part of the remainder. All of this 138 acres, however, except about 38 acres, was laid out by John into village lots, and sold by him, leaving John in possession of the 150 acres south of the fence, and some 38 acres north of the fence, but disconnected with the 150 acres south of the fence. The Boyds resided upon and farmed their re spective portions of the land until 1826, when they reconveyed to the testator the 490 acres in controversy, being the entire tract of 961 acres, except the village lots and about 371 acres on the north end of the entire tract. So that, at. the time of the reconveyance to the testator, the two farms of the Boyds constituted a single body of land, the division line between them being this north fence of the 150 acres, -except that the 38 acres north of the fence disconnected from the 150 acres, belonged to John. In 1826, the testator, who then resided on another farm, resumed his old resi•dence on the 150 acres, where he continued to reside until the time of his death, which took place in 1843. From 1826 to 1833, the testator cultivated the 150 acres as a separate farm, and the 340 acres north of the line fence was cultivated as a separate farm by tenants of the testator. From 1833 to the time of his death, the entire 490 acres were cultivated as a single farm, under the management of said Grondo Taylor, who occupied the old “ Jo. Boyd house,” on the 340 acres, and acted as agent and superintendent for the testator. During all this time, from 1826 to 1842, the testator was in the habit of calling the 150 acres where he resided his “home farm,” and the 340 acres the “ Jo. Boyd farm.” Soon alter Grondo Taylor took charge of the premises, it seems, the testator objected to the removal or change of this line fence, insisting that it should remain as a line fence, but he afterward seems to have acquiesced in its removal or change, and the fields were ultimately changed and shaped in disregard of this line, and were in that condition at the date of the will.
    This testimony, that the testator was in the habit of calling the 150 acres his “home farm,” and the 340 acres the “ Jo. Boyd farm,” was admitted by the court against the objection of counsel for defendants, and they took exception to the ruling of the court.
    "When the evidence had closed, the court instructed the jury, among other things, as follows :
    “ If the lands in controversy did not form a part of the Rome farm of Captain Taylor at the date of the will, then the plaintiffs are entitled to recover as devisees of the residue of the testator’s estate.
    “ The operation of the will is to be determined by the language it contains, but parol evidence is admissible to show what it is that corresponds with the description.
    “ The testator admittedly had hut one home farm, and the question for you to determine is as to its extent or boundaries.
    “ You will bear in mind that the question for you to decide is what it is that corresponds with the words ‘ home farm’ at the time these words were written in his will, and approved by him when he placed his signature to his will.
    “ What lands did he mean when he used the words * the whole of my home farm where I now reside?’ When he used these words he evidently supposed they were sufficiently definite in meaning to enable all parties concerned to determine what land he intended to give his wife.
    “If Captain Taylor regarded and treated these lands as two distinct farms, one of which he regarded as his home farm up to the time when Grondo came to live on them, the fact that Grondo took charge of both farms (if you find there were two farms) and worked them both for Captain Taylor until he died, would not necessarily destroy the identity of the two farms and make them thereafter one farm in the mind, of Captain Taylor.
    
    “ Captain Taylor might have two farms, and consider them two farms, and have them both worked together for him by one man, and all the time regard them as two farms, one of which he might regard as his home farm, and so devise it, and, also, he might have two farms and consolidate them, and regard them, and devise them as one. And it is for you to say from the evidence and all the facts and circumstances in this ease how the fact was.
    “ But the fact, if you find it to be a fact, that the land was farmed as one body for a series of years prior to, and up to the time of, making the will, is a matter to be considered by you in determining whether, at the time the will was made, Captain Taylor considered the tract as one or more than one farm.”
    To these instructions the counsel for defendants excepted; and they asked the court to charge the jury, that the question for them to decide was not what the testator considered to be his “ home farm,” or what he intended by those words, but what in fact, at the date of the will, was his home farm. But the court refused to modify its charge, and the counsel excepted.
    Under this evidence and these instructions, the jury found a verdict for the plaintiff', and the court, after overruling a motion by the defendants for a new trial, rendered judgment upon the verdict; and it is now claimed that the court erred in admitting this testimony,in its instructions to the j'i’~. and in refusing a new trial on the ground that the verdict was against the evidence.
    
      Moses M. Granger and A. W. Train, for plaintiffs in error :
    The court erred in its charge to the jury by in substance telling them that their verdict was to be controlled, not. by tlieir.finding that there was in fact but one farm when the will was made, but by their finding on the question, “Bid Captain Taylor in his mind regard or consider the land as one farm, or as two farms ?”
    In a certain sense it is true that what Captain Taylor meant must control.
    The law gave him the right to put his meaning into the form of a will. He exercised that right, and that will having been admitted to probate, the inquiry changes its form, and reads: “ What lands passed to Mrs. Jane Taylor in fee-simple by virtue of the language used in the first clause of the will ?”
    Until it is made to appear that, under the rules of the law, this question can not be answered without looking to Captain Taylor’s conversations, no evidence of such conversations is admissible. The words of the will must first be éxamined.
    
      If it then becomes necessary to introduce parol evidence to explain the will, such evidence must be of facts, not thoughts ; evidence showing what land was the farm on which the testator resided—not what he “ in Ms mind” considered that farm. 20 Ohio St. 537 ; Beaumont v. Fell, 2 Peere "Williams, 141; Doe v. Taylor, 1 Allen (N. B.) 425; 1 Greenl. Ev. secs. 290, 291, and cases there cited. And as to what evidence is admissible in the construction of a will, see "Wigram, 8-11, 13; 5 B. & Adol. 129 ; lb. 663 ; Colins v. Hope, 20 Ohio, 500; 5 Scott (N. R.) 1037; 70 Eng. Com. Law, 544; 30 lb. 266; 2 Ohio St. 382; 2 Starkie on Ev. 768-770; 3 lb. 1269; 4 M. & S. 550; 3 Taunton, 147; 2 Ves., Sr., 216; 1 .Ves., Jr., 412 ; 18 How. 385 ; 1 Greenl. 290 ; 11 How. 329 ; Jannau (2 Am. ed.) 351; 11 East, 441; 3 M. & S. 171; 5 Hev. & M. 391; Mann v. Mann, 1 Johns. Oh. 231; Torbert v. Twining, 1 Yates, 432; McGlay ,v. Hugers, 6 Watts, 345 ; Ccesar v. Chew, 7 Gill. & John. 127; Bicharás v. Dutch, 8 Mass. 506 ; Crocker v. Crocker, 11 Pick. 252 ; 4 B. & A. 57; 7 Met. 188; Hiscocks v. Hiscocks, 5 M. & W. 363; 12 Grattan, 196; Long v. Duvall, 6B. Mon. 219 ; Jackson v. Sill, 11 John. 201; Guy v. Sharp, 1 My. & K. 589 ; 1 Nev. & M. 524 ; Thompsons. Hempenstall, 13 Jur. 815; King v. Ackerman, 2 Black. (N. S.) 408; 2 Binn. 238; Plowd. 195 ; Touch. 93 ; 1 Tho. C. Litt. 208.
    The court, in substance, directed the jury to ascertain from the evidence—
    1. What the testator meant, instead of what do the words in the will mean.
    2. What lands did the testator intend to pass by the words employed, instead of what lands does the will convey.
    3. That the jury should find whether there were twe farms in the mind of Captain Taylor, instead .of whether there were two farms in fact.
    These directions to the jury, we submit, were clearly erroneous.
    The word farm has a definite and legal signification; and when used in a will, must be construed in its strict and primary sense, unless the context of the will shows it to have been used in a secondary sense.
    The word farm having a definite and legal meaning, to allow the jury to look to parol testimony to ascertain what Captain Taylor meant or intended, is not to give effect to the written will, but to make a will by parol; and this is what the law does not permit.
    
      A. G. Thurman, John O’Neil, and Ball Train, also for plaintiffs in error.
    
      Lucius P. Marsh, of Marsh ¡f Blackson, for defendants in error:
    I. The words “ hotne farm,” found in this devise, are not of such definite and uniform significance that we can ascertain what is the “ farm,” by any standard of physical facts. We may therefore prove, by the declarations of the testator, how he used these words in his lifetime ; what it was to which he applied the terms; and thus learn what he understood to be signified by the same terms found in his will. Byers, v. Wheeler, 22 Wend. 148; Luke of Leeds v. Amherst, .9 Jur. 359; Carnoys v. Blundell, 1 H. L. C. 778; Bichardson v. Watson, 4 B. & Adol. 800.
    II. Where the terms used to designate the subject of a devise are, in themselves, equivocal, or are made in view of the circumstances under which they are used, and when there are two or more subjects to which the terms are equally applicable, the declarations of the testator may be looked to in determining to what or to which he applied such terms.
    We have, in the will under consideration, an equivocal description. Of course, there was but one “ home farm ; ” but that home farm might be one body of land, or it might be more than that body. That description is equivocal, “ where one name and appellation doth denominate divers things.” Bac. Max. 23.
    There were two farms when Captain Taylor returned to the land: one of them had theretofore been his home farm; the other had not. The home farm he lived on; the other Grondo lived on. We find him qualifying—circumscribing—his designation by “ where I now reside.” If he applied these terms to one body of land or to the other, no violence is done to language. Reynolds v. Whelan, 16 L. J. N. S. Ch. 434; Hampshire v. Pierce, 2 Ves. sen. 216; Wigram, VII, Prop.; Hawkins on Wills, 9; Thomas v. Thomas, 6 Tenn. 671; 4 Ves. jun. 680; 2 Vern. 593; Beaumont v. Fell, 2 P. Will. 140; 10 Leigh, 199; 20 Ohio, 157; 1 Paige, 270 ; Hiscocks v. Hiscoeks, 5 M. & W. 363 : 2 Parsons on Con. 560, et seq.; 1 Redfield, 591, see. 22; lb. 650.
    III. As between devisees under the same will, the declarations of the testator may be given in evidence, to fix a division line which may not be ascertained by means afforded ■by the will itself. Doolittle v. Blakely, 4 Day, 265.
    “ Home farm ” had the same significance to Captain Taylor that the words have to us. How large that home farm was, Captain Taylor had the right to determine; and the jury were to ascertain how he had determined it.
    The jury were told to ascertain the understanding of ■'Captain Taylor as to the land described, in view of the circumstances, and which is identical with our understanding of the land described, under the same circumstances. Here are words of a will, and here are circumstances attending the use of those words. The circumstances fix a meaning to the words to us and to the mind of Captain Taylor, and these are identical.
   Welch, C. J.

It seems to me there is really but one question in this case—namely, the question whether the court erred in admitting the parol testimony objected to. If this testimony was competent, I think it follows that the charge of the court was proper, and that the verdict, to say the least, is not so clearly against the evidence as to justify a court in setting it aside. The real question is whether the language of the will, when applied to its subject-matter, is legitimately and fairly applicable as well to one of two several subjects as to tbe other. If it is, then parol evidence was competent to show in which of the two senses the language was used by the testator; and this becomes, as the court substantially instructed the jury, the real question for them to decide.

Is the language of the will, “ the whole of my home farm, where I now reside,” legitimately and fairly applicable as well to the 150 acres as to the whole 490 acres. . The words, “the whole of” may be eliminated as having no significance, for the reason that they are the initial words in the description of every other parcel of real estate mentioned in the will, and are therefore mere words of form. So also of the words “ where I now reside ; ” prima facie they are but a repetition of the idea contained in the word “ home.” My “ home ” farm, prima facie, is the farm “ where I now reside.” So that the simple question is, are the words “ my home farm” legally and reasonably applicable, in the light of all the circumstances, as well to the 150-acre tract alone as to the whole 490 acres ?

As words of mere description, they are not, but as a name of the thing intended, I think they are. The fact that they may be understood equally as words of description, or as a mere name, is the real ambiguity. The parol evidence tends to show that they were used in the latter sense, and this not by showing in which of the two senses the testator actually used the words at the time of making the will, but by showing how he had formerly and habitually used them. It is said that all names were originally descriptions. In some cases they continue to be used both as names • and as descriptions, but in most cases the use of them as names is continued long after they have ceased to be accurate descriptions. This parol evidence tended to show that such was the case here. Indeed the words themselves strongly indicate thÍ3. The words “ where I now reside ” seexn to show that the testator understood the word “home” as designating a, former, equally as a present residence. If this be so, it is but natural to conclude that he might have used the word “ farm ” as designating what was formerly a farm, although now in strictness constituting only part of a farm. , There had been, admittedly, two farms, and, if this oral evidence is to be believed, they had acquired names—the “Home farm” and the “Jo. Boyd farm”— and by these names they had long been known and designated by the testator, both before and after they were managed as one, and down to the time of his death. Under such circumstances, it seems to a majority of us that the court was right in admitting the testimony, and leaving it to the jury, as the court substantially did, to say whether the words “home farm” were used in their old sense,as a mere name of the old homestead, or were used as words pf .strict technical description. In 1833, when the two farms came under one management, having acquired distinctive names, by which they were designated and known for many years, it was quite natural, and we think a legitimate use of the terms, to continue to designate them by those names after they became united. We believe that people ordinarily would do so under similar circumstances. It is true that when a man comes to making his will, he is presumed to use language-with more caution, and better to weigh his words than when in the ordinary transactions of life; but when we reflect that this disposition of the testator’s property was made to those who resided upon it, and must have been familiar with the names by which it was called and known, we are unable to say, with any degree of certainty, that the jury were not right in their conclusion.

Judgment affirmed.

Gilmore and McIlvaine, JJ., concurred.

White, J.

I dissent from the judgment of the court in this case.

In regard to the statement accompanying the opinion, I will merely say that I do not assent to it as containing a full presentation of the circumstances of the case.

I do not propose, however, to enter into a general review of the case, but to state briefly the grounds of my dissent. The case has already been before the court on error, and is found reported in 20 Ohio St. 517. The will was also brought before the court for consideration in the case of Davis et al. v. Boggs et al., Id. 550. In these cases the will is, in substance, set out.,

Three tracts of land were disposed of by the will, besides the lands in controversy in this case. One of them being described as the farm on which the testator formerly resided.

In regard to the present ease, I will say, in the first place, it is very questionable whether a verdict in favor of the plaintiffs below ought, upon any aspect of the testimony, to be sustained, even if the charge of the court to the jury were unobjectionable.

But it seems' quite plain to me that the charge was calculated to mislead the jury, and that the verdict Óf the jury is attributable to the misleading nature of the charge.

And this is especially true in view of the character of the evidence before the jury.

At the time of making his will, in 1842, the testator owned a body of land consisting of about 490 acres, on which he resided. From about the year 1833, this body of land was farmed as one farm. It was divided into various fields; but for some years prior to the making of the will there was nothing on the land or in the mode of its cultivation indicating that the body of land consisted of two farms.

Testimony was admitted by the court against the objections of the defendants of various declarations of the testator, made before and after the making of the will, in regard to the lands in question, and which were admitted and allowed to be used by the jury to show what the testator meant to devise by the following clause of his will, viz : “ I give and bequeath unto my beloved wife the whole of my home farm, where I now reside, as an estate in fee simple.” That is, whether he meant to devise the whole tract, or only about 150 acres off the south end of the tract.

The general character of this evidence is illustrated by the following extract from the testimony of Mrs. Grondo Taylor, taken from the bill of exceptions, viz :

Ques. Mrs. Taylor, do yon know of any division of that property while you lived there ?

Ans. I heard uncle (Capt. Taylor) tell just where the line was. -

Ques. The line of what ?

Ans. Between the Joe Boyd and the home place.

Ques. What did you hear Capt. Taylor say, and to whom?

“Ans. I heard him tell aunt (Mrs. Jane Taylor) just where the line was between the two places—the Joe Boyd place and the home place.

Ques. What did he say to her ?

Ans. He told her that the line went along the south line of the Pelham lot down across the corner of the meadow, and between where the machine-house stood, where they thrashed their grain, and the brick-kiln ; from that to the river.

Ques. When was it you heard him tell that ?

Ans. I think it was the summer before he died ; the fore part of the summer. He told her where the line was at the other side of the place too.”

The line referred to by this witness, as described by Capt. Taylor, constituted, as the plaintiffs below claimed, the north boundary of his “ home farm.” The lands north of that line they sought to recover in this action, as not being part of the “ home farm ” devised to the widow, and which they claimed as residuary devisees under the will.

Under this state of the evidence, the court instructed the jury, among other things, as follows :

“ You will look to all the evidence admitted by the court, and determine what the testator meant by his home farm at the time he made his will—what it is that corresponds with that description.

What lands did he mean when he used the words ‘ the whole of my home farm where I now reside ?’ When he used these words he evidently supposed they were sufficiently definite in meaning to enable all parties concerned to determine what land he intended to give his wife.

“ In this action the plaintiffs must recover, if they recover at all, by satisfying you by a preponderance of proof that they have title to the lands claimed by them, or some definite and ascertained part thereof. Keeping, then, this rule in your mind, and applying it to the evidence, ascertain what parcel of land did Captain James Taylor intend to pass to his wife when he devised to her his home farm; that farm she would take under the will, and the plaintiffs will take his other lands, if any remain, described in the petition.

“ If the plaintiffs, by their proof, have convinced you that at any time after Captain Taylor topic back the lands from Boyds he regarded such lands as two distinct farms; if they were two distinct farms in his mind, with a definite boundary between them, and so treated and used by him, one of tohich he regarded and in his mind was his home farm, and was so denominated by him, the presumption is that he continued so to regard it, and you must so find, unless the proof shows you that he afterward changed his mind and manner of treating it, and afterward considered, designated and treated it as one farm.”

It is manifest from these instructions, that the declarations of the testator were not merely to be used by the jury as bearing upon the question whether the whole body of land constituted in fact two farms, or but one; but as direct evidence to show the testator’s intention. So that, if the jury found that there was in fact but a single farm, yet if they found, from the declarations of the testator, that he regarded the lands in his mind as two farms, the j ury were to so regard it, without reference to what the fact might be.

What the testator meant is to be ascertained by the language contained in the will. “ The question, in expounding a will, is, not what the testator actually intended as contradistinguished from what his words express, but what is the meaning of the words he has used.”

The words of a will are to be understood in their strict and primary meaning, unless it appears from the context they are used in a different sense. Where there is nothing in the context showing the words to be used in any other than their strict and primary sense, and the words as so understood are sensible with reference to extrinsic circumstances, it is laid down by Wigram as an inflexible rule of construction that the words are to be interpreted in that sense and in no other, although they may be capable of some secondary interpretation, and although the most conclusive evidence of intention to use them in such secondary sense be tendered.

The language of the will is, of course, to be read in the light of the state of things existing at the time the will was made and to which it relates. This state of things is provable by parol evidence, and constitutes the extrinsic facts in the light of which the will is to be construed and applied. The parol evidence must be pertinent and material to the fact to be established, and should be limited to the purposes for which it is introduced. In the present case, the testator admittedly had but one home farm, and the question in controversy was as to the extent of that farm. The defendants claimed that the farm consisted of the entire 490 acres; while the claim of the plaintiffs was that the whole body of land constituted two farms.

Any evidence tending to show whether the entire body of land constituted in fact two farms or only one, was pertinent and material. Whether there were two farms or only one, was a question of fact to be determined upon the evidence. But if, in view of all the evidence, the whole body of land constituted in fact a single farm, it could not be made two, by showing by parol testimony that the testator so intended, or so regarded it in Ms mind.

A devise of a particular farm or parcel of land can not be defeated by showing by parol that it was the intention of the testator to devise but part of it.

Under the ambiguous nature of the charge, the jury were allowed to resort to parol evidence as a direct means of ascertaining the meauing and intention of the testator. The intent and meaning as thus ascertained, they were, in effect, told to regard as the meaning of the will. This was putting the oral testimony.on an equal footing with the language of the will, as a means of ascertaining the intention of the testator.

The dangerous character of such evidence is manifest in this case. The declarations of the testator occurred more than thirty years before the witnesses were called on to testify concerning them, and when, in the nature of things, many of the circumstances attending the making of the declarations and explanatory of them would be forgotten. And yet these declarations were submitted to the jury as evidence of the intention of the testator, to control what would' otherwise be the plain meaning and operation of the will as applied to the subject of the devise.

No where in the charge was it submitted to the jury to determine, as a question of fact, whether the whole body of land constituted one farm or two farms; but they were directed to ascertain how it was regarded in the mind of the testator, without reference to how it was in fact.

In my view, the way in which the case was tried was an indirect, though an effectual mode of subverting the policy of the law which requires wills to be made in writing, and tbat, for this reason, the judgment should be reversed.

Rex, J., concurred in the dissenting opinion.  