
    Bennet Perry, v. Reuben Morgan.
    Edward Coleman purchased a tract of land from John Abney, and afterwards by a resurvey, incorporated with it a small tract adjoining, calling the tracts, thus united, the “Abney tract;” he then devised “the old tract of land I bought from Abney:” Held, that extrinsic evidence was admissible to show the true intention of the Testator.
    When words in a will are of doubtful import, extrinsic evidence may be introduced to explain the intention of the Testator.
    Tried before Mr. Justice Butler, at Edgefield, Fall Term, 1846.
    This was an action of trespass to try titles. Edward Coleman, by his will, devised to John Coleman “half of the old tract of land that I bought, from Abney;” and to Edward Coleman, in like terms, the other half. The plaintiff claimed under this devise. The defendant claimed under the residuary legatees of Edward Coleman. The question was, whether the land in dispute did or did not pass under the will, as a part of the old tract of land bought from Abney. After much evidence had been adduced on both sides, the presiding Judge instructed the jury that, by a proper construction of the devise, in connection with the other facts proved, the plaintiff was not entitled to the land in question. Whereupon the plaintiff submitted to a non-suit with leave to apply to the Court of Appeals to set it aside.
    Because his Honor erred in ruling and charging the jury that the question, whether the land in dispute passed, under the will of Edward Coleman, to his two sons, Edward and John, was a question of law and not of fact—and because his Honor erred also in deciding that the land in dispute did not pass under the will to Edward and John Coleman.
    Bausket, for the motion,
    contended, that land used with and necessary to other land, will pass in devise with it, and cited Har. E. R., 56. That this disputed land had been admitted as a part of the other tract for many years by the devisees. That Coleman’s estate had been closed up, and had so remained for twelve years, and that they were all of full age, and must have had understanding of the matter. That by this long silence they assented to, and interpreted the will. That whether this land in dispute, should or should not pass under the revise, had been decided in the Court below as a question of law; but he insisted that it was a question of fact, and that as such it should be sent back and tried by a jury. He asked, what was the intention of the testator? said that was the true enquiry in this case, and that parol testimony must be permitted to show what it was; that when discovered, it should be regarded; citing Herbert v. Reed, 16 Vesey, 481; 2 Phil’s. Ev. 297; 1 Greenleaf Ev. § 275 to 307. He farther urged, that whether or not the disputed tract was a p'r"~el of the whole, was a question of fact to be proved by pa: testimony, and cited Wigram, 5 prop. 51; Stark. Ev. 1026; 1 T. R. 701; 1 Greenleaf Ev., § 286, 289, and 291. And also cited, Ongley v. Chambers, 8 Moore, 665; and Gore v. Langton, 2 Barn. & Ald. 166, to shew that other lands, in addition to those bought at the same time, had, in these cases, been permitted to pass.
    Wardlaw, contra,
    
    said that after a lapse of time (some thirty years) the witness should be considered as likely in nature to be forgetful. Contended, that witnesses should not be allowed to restrict or extend a will; if they were, the statute of frauds was, so far, a nullity, citing Man v. Man, 1 Johns. Chan. R., 231. He insisted, that evidence in such cases was only used to explain that which would otherwise be indefinite. That, by bought, the testator meant the land conveyed to him by Ab-ney; the piece in dispute had been run as vacant land. That the solemnity of the deed should make it the best evidence of the quantity sold and bought; said that words should be used in their primary sense, and cited Tyrrel v. Lyfford. 4 Maule & Sel. 556; urged, that parol should not be allowed to vary the written will; if allowed, one witness would in this case do so. That when the subject matter referred to is fully sufficient to answer the description in the will, the terms should apply, and parol evideirce should not go beyond pointing the application, and cited Wigram 183, par. 213. That bought and conveyed, were really synonimous as to land; Brown v. Brown, 11 East. 441; T. R. 579; Chichester v. Oxenden, 3 Taunt. 147. That evidence was only admissible to explain that which would otherwise be a nullity; Dell v. Pigot, 7 Taunt. 552; Brown v. Greening, 3 Maule & Sel. 171; Parkin v. Parkin, 5 Taunt. 321; Hodgson v. Merest, 9 Price, 200. That property to satisfy the description was sufficient; Newburg v. Newburg, 5 Mad. 223; Jackson v. Sill, 11 J., 201; Allen v. Richards, 5 Pick., 512; Westlake v. Westlake, 4 Barn. & Ald., 348. That when the person is fully made known by the will, parol shall not make other allotment. That words of affirmation, after a full description, may be rejected as surplusage; Powel on Dev., top 103, and mar. 193. That the primary and sufficient part of description is to be taken; Broom’s Leg. Max., 269, 270 and 273; and that the law will not intend error or falsehood. Lie then cited the following additional cases: Gibson v. Chappell, Har. L. R. 28; Norwood v. Burr, 1 Rich. 137; Barclay v. Barclay, 3 M’C., 269; Elsworth v. Buckmyer, 1 N. & M’C., 431; Middleton ads Perry, 2 Bay, 541; and said the case of Wilson ads Robertson, Har. E. R., 56, was not contra.
   O’Neall J.

delivered the opinion of the Court.

In this case, the argument, especially of the able counsel for the defendant, has covered a wide range. The whole matter, however, depends upon the 1st ground. If it be true that the words of the will, the “old tract of land that I bought from Ab-ney,” are to be confined to the land covered by the Abney grant, and by the deed from Abney to the testator, then the Judge below was right in ruling, that the land in dispute did not pass by the will. But if those words are not so restricted, and the case is to be decided on all the facts proved, then unquestionably it was a question of fact for the jury, what land did the testator intend to devise by the words used ?

I agree to the rule of Doe. dem. Chichester v. Oxenden, 3 Taunt. 147, 1 Jarm. on Wills, 350, that whenever the description in the will is satisfied according to the words used, you cannot go beyond, and add other estates on account of the testator being in the habit of including them in conversation, under a general common name. But here the question is, what is meant by the old tract of land that I bought of Abney? This must be resolved by extrinsic evidence, as is said in 1 Jarm. on Wills, 366. This extrinsic evidence is not confined to the grant or deed, but necessarily embraces every thing, which may inform the Court and jury what land the testator supposed he bought from Abney. In this very case, the bond for titles, executed by John Abney to Edward Coleman, ten years before the execution of the deed, was in evidence. According to its description, the land in dispute might be included; for towards the West it calls for Matthew Wells’ land as a boundary. It is true, exclude the land in dispute, and still Matthew Wells’ is a boundaiy; include it, and the same thing is the case. Construing the'words most strongly against the grantor, it might well cover the land, and then from it, as opposed to the deed, it might well be said, although Abney did not convey the land, yet Coleman bought it from him. This too would correspond with Coleman’s statement to Chapman, the surveyor, that he bought to the white oak corner, but on Chapman assuring him that the papers would not cover it, he said it might be so, for Abney had told him there was a piece of vacant land, but he had his quantity without it. This, I suppose, might be explained in this way: Abney sold the whole land; but finding before he made titles, that this land was vacant, told Coleman there was a piece of vacant land, but he had his quantity without it, and then executed his title excluding it. The facts too, that the testator’s son-in-law, by his direction, as far back as 1803, cleared on the land in dispute; that the field thus cleared was cultivated by the testator until it was worn out, are other circumstances in aid of the view, that the testator regarded this land as part of his old place, which he bought of Abney. To this must be added the further fact, that when he took up the land as vacant, he made no line between it, and the rest of the land; and that he included all in one plat. When all these facts are put together, they must be compared with the facts, that neither the grant to Abney nor his deed to Coleman, includes the land; and then the question presents itself, what land did the testator, at the time he made his will, believe he bought from Abney, and which he intended to designate as his old place bought from Abney? Who is to answer that question? It depends upon facts properly in evidence, and of course the jury under the advice of the Court, must answer it.

The motion for new trial is granted.

Richardson J., and Frost J., concurred.

Wardlaw J.

dissenting. Parol evidence is admissible to ascertain what is comprehended in the terms of a given description referring to an extrinsic fact; but if the context of the will present no obstacle to the construing of the terms of description in their strict and most appropriate sense, evidence dehors the will is not admissible to shew that the testator used his terms of description in any peculiar or extraordinary sense.

When a subject is found answering all theterms of description used in their strict and primary import, and nothing in the will itself makes the sense of the terms doubtful, no evidence of the testator’s intention, of the unreasonableness of the construction which the primary sense of the words leads to, or of other extrinsic matter, can be admitted to adapt the terms to any other subject, by enlarging or rejecting some of them, or varying their import.

In this case, the terms of description are fully answered by the tract which the testator bought from Abney; that is, the tract which, by reference to the original grant and the boundaries, is described in the contract between the testator and Abney, made in 1797, and which was conveyed by Abney in 1807. Shall the terms of the will, thus exactly suitable to an ascertained subject, be extended so as to embrace something else, when nothing in the context suggests that the testator used his words in any other than the proper sense? If the plaintiff can succeed, he must sustain the affirmative of this proposition. His evidence consists of circumstances, to shew the unreasonableness of confining the words to their proper sense, and of a hesitating and retracted declaration, which John Chapman testifies, that thirty years ago he heard the testator make concerning what Abney said nineteen years before that time. To vary the proper meaning of words upon such evidence, is to substitute our opinion of reasonableness for that which, as his will shews, the testator enter, tained, and to construe a will not according to the writing, but according to feeble proof of the meaning obtained by parol. If the will, read as a whole without any knowledge of the subject referred to, on the part of the reader, shewed a contradictory or unusual use of the words which are contained in the terms of the description—or if the evidence adduced to apply the terms of the subject, shewed that no subject exactly answered the terms, a foundation would be laid for the admission of parol evidence; not to shew intention as an independent fact, but to explain the meaning of the terms. But the words used being in themselves plain, and nothing in the context presenting an obstacle to their having their appropriate sense, it would have been of no avail if the testator had said to the scribe and witnesses of his will, “by these words I mean to include not only the land which I in fact did buy from Abney, but all which Abney shewed me, and which is included in Chapman’s plat.” How much less should the proof here adduced avail.

I think that the circuit Judge was right in holding as matter of law, that the terms did not embrace the land claimed by the plaintiff, as he would have been right in ordering a non-suit; that there was no evidence properly admissible, after a subject exactly suitable to the terms had been ascertained; and that the submission of the question, under the evidence adduced to the jury, would have been an evasion of the law which requires a will to be in writing—likely to lead to a construction, had upon proof of intention as an independent fact, and not upon an application of the terms used to the subject described.

Evans J. concurred.  