Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 32 Cal. 425 at 431.
Appeal from the District Court, Seventh Judicial District, Napa County.
This cause came on to be tried on the 3d day of October, 1865. The plaintiff, to maintain the issues joined on his part, proved a grant from the Mexican Government to Dr. Edward T. Bale, of the Rancho Carne Humana, and confirmation thereof, and that the claim was still pending upon exceptions to the survey; also, that juridical possession was given of the ranch. It was admitted that the land in controversy was covered by the grant and juridical possession. Plaintiff then put in evidence the will of Dr. Bale, the father of Mrs. Bruck.
The defendants were in possession of several portions of the tract of fourteen hundred and thirty-six acres, outside of the one hundred and ninety acres west of the Napa River. The defendants recovered judgment in the Court below, and the plaintiffs appealed.
COUNSEL:
The question was not one of identification nor of boundaries. It was a question of construction, of intention, of interpretation. The question was and is, what did Dr. Bale mean by the words used by him in his will, " the flour mill and all of the land, etc., which pertains to said mill, a half league, more or less?" This was for the Court to determine, and it is for this Court to determine. There are two ways that we may determine it. The first way is to interpret it in the light of surrounding circumstances, and if they are sufficient it will not be necessary to look any further. We find a segregated tract upon which the flour mill stands, containing less than half a league. It does not adjoin any other land of the testator. Is anything more necessary to enable the Court to interpret the will? Is it not manifest that this is the tract of land intended to be devised? It is for the Court, not the jury, to construe the will, and to ascertain what land the testator intended to devise. The construction and effect of a deed are matters of law, and if a jury undertake to find what effect a deed has, the Court will thus far disregard the finding and give the deed its proper effect. (Muller v. Shackleford, 4 Dana, 264; Venable v. McDonald, 4 Dana, 336; Sheldon v. Dodge , 4 Denio, 417; Turner v. Gates, 16 How. U.S. 14.) The construction of the will, where it is to be gathered from the will alone, is a mere question of law. (Sorrel v. Sorrel , 5 Ala. 245; Branch Bank at Mobile v. Boykin , 9 Ala. 320.)
B. S. Brooks, for Appellants.
C. Hartson, for Respondents.
The question of identification was one of fact and not of law, and was properly submitted to the jury. (Constitution of California, Art. VI, Sec. 17; Practice Act, Sec. 165; 1 Cal. 328; 4 Cal. 69; 8 Cal. 216.) The parcels in a devise always lie out of it, and must be sought by evidence cliunde. Their identity is a fact to be found by the jury. (Ryers v. Wheeler, 22 Wend. 150.) Boundaries and lines are always questions of fact for the jury. (Barclay v. Howell's Lessees, 6 Pet. U.S. 510.) There was a conflict of testimony, and this Court will not disturb the verdict. (Peterie v. Bugby , 24 Cal. 422; Lubeck v. Bullock , 24 Cal. 338; People v. Brown , 27 Cal. 500.) The point in issue was the identification of the land. Appellants claimed a piece of land under a will, in which it was designated as " the flour mill and all the land, etc., which pertains to said mill, a half league, more or less." The only way ofidentifying the land so as to enable the jury to decide whether the defendants were upon it, and to enable the officer to find the land of which the writ should direct him to give the plaintiffs possession, was by proving its metes and bounds. Although it is the province of the Court to construe the written instrument, yet when the meaning is to be ascertained by the light of extraneous facts in connection with the written language, much is to be left to the jury. (Gardner v. Clark, 17 Barb. S.C. 551; Jennings v. Sherwood , 8 Conn. 127.) " An admixture of parol with written evidence draws the whole to the jury." (Sidewell v. Roberts, 1 Penn. 386; Welsh v. Dusar, 3 Binn. 377; Dennison v. Wurtz, 7 Serg. & Rawle, 372; Moore v. Miller, 4 Ib. 279; Watson v. Blaine, 12 Ib. 131; Overton v. Tracy, 14 Ib. 311; Brown v. Campbell, 1 Ib. 176; Etting v. U.S. Bank, 11 Wheat. 59; 2 Phil. on Ev., C. & H.'s notes, 4th ed., p. 734, note 510; Frier v. Jackson, 8 Johns. 507.) " The right of the Court to decide on the legal effect of written instruments cannot be controverted, but the question of boundary is always a matter of fact for the determination of thejury." (Barclay v. Howell's Lessees, 6 Pet. U.S. 508; Reynolds v. West , 1 Cal. 323; Hicks et al. v. Davis , 4 Cal. 69.)
JUDGES: Shafter, J.
OPINION
SHAFTER, Judge
By the Court, Shafter, J., on petition for rehearing:
In the opinion delivered in this action we do not hold that any part of the mill tract passed to the devisee which the devisor conveyed or contracted to convey in his lifetime. The will of course operated only upon so much of the mill tract as legally and equitably belonged to Dr. Bale at the time of his death.
Rehearing denied.