Opinion
May 9, 1949.
1. Wills — devise of lands by accurate description — parol evidence.
Where the owner of several lots devises one of them by an accurate description, parol evidence is incompetent to show that a different lot was intended.
2. Wills — devise of property by definite description — parol evidence.
Where a will disposes of property by definite description, parol evidence is not admissible to contradict or vary the description.
3. Wills — erroneous description — how corrected.
In all cases where there is error in one part of a description in a will it can be construed by, but only by, resorting to another part of the will to show such mistake or to furnish a definite clew which makes the meaning clear.
4. Wills — intention as to descriptions, when disclosed by will itself.
Where the will is so worded as to show testator's intention to pass his lands in a given plat or section or the like, the description of a particular lot, quarter section and the like may be rejected as erroneous.
5. Wills — technically erroneous lot numbers — disclosed intention followed.
Testatrix devised 12 lots, numbering them, in Block 3 Oakridge Subdivision; she did not own any such lots but did own 12 lots of corresponding lot numbers in Melrose Place Subdivision which was a subdivision within Block 3 of Oakridge Subdivision and these were the only lots owned by her in either of the subdivisions: Held that the intention was sufficiently disclosed and that the description although technically erroneous was effective to pass title to the numbered lots in Melrose Place Subdivision.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Coahoma County; R.E. JACKSON, Chancellor.
Green Green, for appellant.
Wills may be judicially construed, but never judicially reformed. Barner v. Lehr, 190 Miss. 77, 199 So. 273-277.
Note that Oakridge Subdivision contains lots and blocks, and that Block 1 contains lots numbered up to 21; that Block 2 contains 10 lots and Block 3 contains 11 lots. Complainant claims title under that section of the Will reading: "Also, those 12 lots in Oakridge Subdivision, City of Clarksdale, County of Coahoma, State of Mississippi, more particularly described as Lots 9, 10, 11, 12, 13, 17, 18, 19, 21, 22, 23, 24, all in Block 3; . . . ." That sought by complainant is, without any specific reference whatsoever in this Will to Melrose Place Subdivision, to substitute for that precisely expressed that which complainant insists testator intended to devise. Complainant's position as such would be not interpretation, but reformation. See 45 Am. Jur., "Reformation of Instruments", Sec. 27, p. 597, and 69 Corpus Juris, "Wills", Sec. 1375, p. 362. Compare 53 Corpus Juris, "Reformation of Instruments", pp. 913-920, and National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649-651; Keeley v. Adams, 149 Miss. 201, 115 So. 344-345.
"The will must be construed as made. Courts have no authority to either add to, or take from, a will, except surplusage in the language of a will may be disregarded, if necessary, to get the intention of the testator; and parol testimony is admissible to show the facts and circumstances surrounding the testator, including what property he owned, in order to properly interpret and apply to the language of the will. Chrisman v. Magee, 108 Miss. 550, 67 So. 49, 901. The second lot, not having been specifically disposed of by the will, under item 12, goes to appellees, the residuary legatees." (Keeley v. Adams, supra.)
There are two factors which we particularly desire to stress: (1) Nothing may be added to the will, but only deletion had, and if that which is false is deleted and sufficient remains to furnish an accurate description, then pursuant thereto complainant would take; but analyze that as to which the deletion must be.
(2) "Those 12 lots in Oakridge Subdivision". Oakridge contained blocks and in each block there were a number of lots; but a devise of "12 lots in Oakridge Subdivision" without specification falls under judicial condemnation. Compare Jefferson v. Walker, 199 Miss. 705, 26 So.2d 239, Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Crosby Lumber Mfg. Co. v. Elsas, 183 Miss. 107, 183 So. 499. Note Nelson v. Abernathy, 74 Miss. 164 -168, 21 So. 150. Compare Sims v. Warren, 67 Miss. 278.
(3) Again, that the party did not own that specifically described was not relevant; and this is particularly true in this case by reason of the extraordinary form of the device to defendant under what would usually be a residuary clause but which in this case amounts almost if not completely to a specific device.
(4) The next provision is ". . . more particularly described as Lots 9, 10, 11, 12, 13, 17, 18, 19, 21, 22, 23, 24, all in Block 3; . . .". There were not in Block 3 this number of lots; but if we delete the lot number as being incorrectly given, as we insist we must, then there would remain but a description which could not be applied to Block 3 for in Block 3 there were not twelve lots. Nothing appears in this will nor can appear as to the Melrose Place Subdivision; but assuming for the sake of argument, without admitting, that Melrose may be integrated, we find Lots 2 and 3 of Block 3 of this Subdivision constituting 24 lots in Melrose, some in Lot 2 and some in Lot 3, in Block 3, but under no possible conception could these numbered lots be found in Block 3 of the Subdivision as listed in the will. Why testator assumed to write as to these specific lots in Block 3, we are not informed; but she deemed it essential to insert a block number which could not have occurred had these lots been allocated to Melrose, Complainant is without title until he makes it affirmatively appear as to these specific lots that in accordance with the statute of wills — in writing — duly attested — the testator gave these lots to him and not to the defendant and its co-defendants under the residuary clause. In short, this is not a case wherein the testator will have a partial intestacy if complainant does not recover but pursuant to a specific devise, defendant and the other charities will take under a declaration just as precise and just as clear as it is possible to make. So that in a double aspect, as we see it, this could not therefore, pass to complainant.
Compare Chrisman v. Magee, 108 Miss. 550, 67 So. 49-52. Nothing in the opinion on the suggestion of error in that case conflicts with that for which we herein contend. There Judge Chrisman made a devise of a quarter-quarter section to his son thus: `S.W. 1/4 of the N.E. 1/4, Sec. 31' in township 22, range 5, W.', when he owned the S.W. 1/4 of the N.W. 1/4 in said section, township and range; so that the only false description was "East" instead of "West"; so that the skeleton to be filled in was S.W. 1/4 (correct) of N. (correct) E. (incorrect) 1/4 (correct) and it could hardly be questioned with this deletion that there remained that which the judge intended to pass, notwithstanding the first opinion. See also Ehrman v. Hoskins, 67 Miss. 192-194, 6 So. 776 and Patch v. White, 117 U.S. 210, 29 L.Ed. 860-865.
Holcomb Curtis, for appellee.
It is respectfully submitted that "in equity that is certain which is capable of being made certain". See McDonald et al v. Chapman et al, 129 Miss. 149, 91 So. 861.
The devise here can be made certain by merely looking at the Will and exhibits to the Bill of Complaint.
The case of Countiss v. King et al, 149 Miss. 70, 115 So. 109, is, we submit, decisive of the question at bar. Here as in the Countiss case, the mistake is obvious, however, there is no necessity here for a correction for the statement "all those 12 lots in Oakridge Subdivision to the City of Clarksdale, County of Coahoma" for the same is sufficient to identify and describe the property devised.
"In the absence of anything to suggest to the contrary, the testator must be understood as asserting that he is the owner of a tract which he undertakes to devise, although he does not in terms refer to it as his or employ an equivalent expression." See 69 C.J. 359, Sec. 1371.
Of course, the testatrix here did use equivalent expressions of ownership. Also, as was said by Justice Reed in the opinion on suggestion of error in the case of Chrisman v. Magee, 108 Miss. 550, at page 569: "The greater weight of modern authority probably is that where the will is so worded as to show testator's intention to pass his lands in the given plat or section and the like, the description of the particular lot, quarter section, and the like may be rejected, if erroneous.
"Mr. Page further says (see page 571) that all the courts practically agree that if `after the false description, or part of a description, is discarded, there remains in the devise language sufficiently full and accurate to identify the subject of the gift with sufficient certainty, the property thus indicated will pass'."
Certainly here the Will is so worded as to show testator's intention to pass her lands in the Oakridge Subdivision "to Joe S. Cooper, son of Sam Cooper and grandson of Allen Cooper . . .; also those 12 lots in Oakridge Subdivision to the City of Clarksdale, County of Coahoma, all in Block 3", is sufficient to come within the additional language of Justice Reed in the Chrisman case, supra.
At the date of the execution of the Will the testatrix owned the 12 lots in Block 3 of the Oakridge Subdivision being also described as Lots 9, 10, 11, 12, 13, 17, 18, 19, 21, 22, 23, 24, all in Block 3, Melrose Place Subdivision and she owned no other property in the Oakridge Subdivision.
Consequently, the plain intention of the testatrix is that she intended to convey or devise to appellee, Joe S. Copper, the 12 lots owned by her in Oakridge Subdivision whatever other description the same might bear, but she further said "if owned by me at the time of my death". Therefore, the Will speaks as of the time of the execution, at which time, she owned the twelve lots.
Certainly the testatrix could not be accused of inserting a vain provision in her Will and such will not be presumed in law.
The case of Barner v. Lehr, 190 Miss. 77, 199 So. 273, cited at length in appellant's brief is only a quotation from Chrisman v. Magee, 108 Miss. 550, 67 So. 52, and which said opinion was altered by the suggestion of error as indicated on the 8th page hereof. On page 10, however, in Item 2, of appellant's brief, appellant fails to note that testatrix does specify the 12 lots to be in Block 3, Oakridge Subdivision.
In the Barner case an attempt was made to change a devise from "Lot 7, Section 3, Township 3", to "Lot 7, Section 3. Township 4". In the case at bar, no attempt was made to change any description but merely to construe a description.
We think that the description as written is sufficient, for it describes accurately the twelve lots owned by the testatrix in that part of Block 3 of Oakridge Subdivision, platted as Melrose Place Subdivision.
Counsel for defendant argues that we are undertaking to add the words "Melrose Place Subdivision" to the description. However, he concedes in his quotation from the case of Keely v. Adams, 149 Miss. 201 that courts have the authority to take surplusage from a will if necessary to get the intention of the testator, and that parol testimony is admissible to show what property said testator owned if by this the will may be interpreted better.
Joe S. Cooper filed his bill of complaint in the Chancery Court of Coahoma County alleging ownership of Lots 9, 10, 11, 12, 13, 21, 22, 23 and 24 of the Melrose Place Subdivision to Clarksdale, Mississippi, and praying for the cancellation of the claims of the Old Ladies Home and of Belhaven College as clouds upon his title thereto. Belhaven College did not plead to the bill and a decree pro confesso and final decree were taken against them. There was an answer by the Old Ladies Home and in the answer there was incorporated a demurrer setting up that the bill states no cause of action against the defendant and is wholly without equity and should be dismissed.
There was a hearing upon the demurrer and the demurrer was overruled. The Old Ladies Home made application for an appeal from the decree of the Court overruling its demurrer and the Court allowed an interlocutory appeal in order to settle the controlling principles of law involved in the suit.
Both parties to this controversy are claiming this property from the same common source, which is the will of Lula W. Cooper, which was executed on the 11th day of October, 1943. Item IV of this will provides:
"I give, devise, and bequeath the following described property, if owned by me at the time of my death, to the following persons, to-wit:
"1 . . . . . . . "2 . . . . . . . "3 . . . . . . . "4 . . . . . . . "5 . . . . . . . "6 . . . . . . . "7 . . . . . . .
"8. To Joe S. Cooper, son of Sam Cooper and grandson of Allen Cooper . . .; also those 12 lots in Oakridge Subdivision to the City of Clarksdale, County of Coahoma, State of Mississippi, more particularly described as Lots 9, 10, 11, 12, 13, 17, 18, 19, 21, 22, 23, 24, all in Block 3, . . .".
The Old Ladies Home is claiming as residuary legatee under the provisions of Item XI of the will, which provides as follows:
"All of the remainder of my estate, real, personal, and mixed, not hereinabove specifically bequeathed or devised, or which legacies or devises shall lapse for any reason, I bequeath and devise as follows, an undivided one-third interest to each: To the Old Ladies Home situated at Jackson, Miss.; To Belhaven College, located at Jackson, Miss.; and to Southwestern University, located at Memphis, Tenn."
From the provisions of the original bill and the exhibits it appears that Melrose Place Subdivision is a subdivision of Lots 2 and 3 of Block 3, Oakridge Subdivision in the City of Clarksdale, County of Coahoma, and State of Mississippi. Block 3 of Oakridge Subdivision contains 11 lots numbered from 1 to 11 inclusive. The testatrix at the time of the execution of the will owned 12 lots in Melrose Place Subdivision, which said Melrose Place Subdivision was in Block 3 Oakridge Subdivision. Testatrix at the time of the execution of the will owned no other property in Melrose Place Subdivision or in Oakridge Subdivision. Block 3 of Oakridge Subdivision contains Lots 9, 10 and 11 only, which correspond to the numerals of the lots mentioned in the will and these said Lots 9, 10 and 11 of Block 3 of the Oakridge Subdivision were not owned by Lula W. Cooper at the time of the execution of the will or prior or subsequent thereto. She did own Lots 9, 10, 11, 12, 13, 17, 18, 19, 21, 22, 23 and 24 (12 Lots) in Melrose Place Subdivision in Block 3 of Oakridge Subdivision.
It will be seen that the question presented for decision here is one involving the construction of the will of Lula W. Cooper.
It is true as held in Barner et al v. Lehr et al., 190 Miss. 77, 199 So. 273, that (Hn 1) where the owner of several lots devises one of them by an accurate description, parol evidence is incompetent to show that he intended to devise a different lot and that by mistake the wrong lot was described; and (Hn 2) where a will disposes of property by definite description, parol evidence is not admissible to contradict or vary the description. It is also true as held therein that (Hn 3) in all cases where there is error in one part of a description in a will it can be construed only by resorting to another part of the will to show such mistake or to furnish a definite clew which makes the meaning clear. However, it is equally true, as held in Countiss v. King, 149 Miss. 70, 115 So. 109, that (Hn 4) where the will is so worded as to show testator's intention to pass his lands in a given plat or section and the like, the description of a particular lot, quarter section and that the like may be rejected as erroneous.
When we take the description of the property devised to Joe S. Cooper set out in the foregoing part of this opinion and eliminate "more particularly described as Lots 9, 10, 11, 12, 13, 17, 18, 19, 21, 22, 23, 24", we have left as the language of the will the following: "To Joe S. Cooper; son of Sam Cooper and grandson of Allen Cooper . . .; also those 12 lots in Oakridge Subdivision to the City of Clarksdale, County of Coahoma, State of Mississippi, all in Block 3."
In the case of Chrisman v. Magee, 108 Miss. 550, 67 So. 49, 901, the testator owned the SW 1/4 of NW 1/4 of Section 31, Township 22, Range 5 West in Bolivar County, Mississippi. Under the provisions of his will he devised the SW 1/4 of NE 1/4 to his son J.J. Chrisman. The Court held that when the erroneous language of "SW 1/4 of NE 1/4" is stricken from the will there remains a sufficient description to identify the lands devised and that after striking out the part mentioned the will then will show that the testator devised to his son land in Section 31, Township 22, Range 5 West in Bolivar County, Mississippi. The agreed statement of facts in that case contained the information that the testator only owned one-quarter of one-quarter, or forty acres, in that Section, and that parcel owned was the SW 1/4 of the NW 1/4 of that Section. The Court there held that after discarding the erroneous part of the description there was sufficient left to identify the land so far as to enable it to pass by the will, and that after a consideration of the case in the light of the circumstances surrounding the testator at the time he made his will it was his intention that his forty acres of land should go to his son, the appellant.
(Hn 5) When the erroneous part of the description is stricken from the language of Item IV of the will there is shown an intention on the part of the testatrix to convey the twelve lots in Block 3, Oakridge Subdivision to the City of Clarksdale, County of Coahoma, State of Mississippi, to Joe S. Cooper and after discarding this erroneous part of the description it appears to us that sufficient remains to identify the lots in Block 3, Oakridge Subdivision, so as to enable them to pass by the will. It is also apparent to us in the light of all the bill's allegations of the circumstances surrounding the testatrix at the time she made her will that it was her intention that the 12 lots owned by her in Block 3, Oakridge Subdivision of the City of Clarksdale, County of Coahoma, State of Mississippi, should go to Joe S. Cooper, the appellee. We, therefore, hold that the bill does state a cause of action in equity and that the court below was correct in overruling the demurrer of the appellant thereto.
The cause will be affirmed and remanded for further proceedings in the lower court in accordance with this opinion.
Affirmed and remanded.