In Taylor v. McCowen, 154 Cal. 798 [ 99 P. 351], the court at page 802 quoted with approval the following language from Patch v. White, 117 U.S. 210 [29 L.Ed. 860, 6 Sup. Ct. Rep. 617, see, also, Rose's U.S. Notes]: "It is settled doctrine that as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence.Summary of this case from Estate of Zilke
S.F. No. 4235.
December 24, 1908.
APPEAL from a judgment of the Superior Court of Mendocino County and from an order denying a new trial. J.Q. White, Judge.
The facts are stated in the opinion of the court.
McNab Hirsch, and T.B. Pond, for Appellant.
T.L. Carothers, for Respondent.
This is an action to determine adverse claims to a tract of land. Judgment was given in favor of the plaintiff and an order was made denying the defendant's motion for a new trial. Thereupon the defendant appealed from the judgment and also from the order.
Both parties claim under one Adaline S. Budd, who died on January 10, 1892, seized of the property in question. Upon the distribution of her estate, in pursuance of the terms of her will, the lands in question were distributed "to Charlotte Budd Armstrong for the term of her natural life, and upon her death to become the property of her heirs at law; upon the condition that the said Charlotte Budd Armstrong shall continue to reside upon said lands for the period of her natural life, and should the said Charlotte Budd Armstrong remove permanently from said lands during the period of her lifetime then and in that case the said lands shall become the absolute property of Albion M. Taylor, of Lowell, Massachusetts." This decree was made on June 7, 1893. The will contained, in addition to the conditions mentioned in the decree, the provision that the said Charlotte Budd Armstrong should take up her residence upon said tract of land within one year from the date of the death of the deceased, Mrs. Budd, and that if she failed to take up her residence on the land within said year, or if she should remove from said land during her natural life, then the property should "become the property absolutely of my nephew Albion M. Taylor, of Lowell, Massachusetts." Within a year after the death of Mrs. Budd, Charlotte Budd Armstrong took up her residence upon said land and continued to reside thereon until April 28, 1899, when she permanently removed from said land and sold and conveyed her interest in the same to the defendant, Hale McCowen. On August 7, 1903, a deed was executed by a person under the name of Albion M. Taylor, which, upon its face, states that he was formerly of Lowell, Massachusetts, and a nephew of Adaline S. Budd, deceased, and the same Albion M. Taylor referred to in the last will of said Adaline S. Budd, whereby the said Taylor by quit-claim conveyed the said property to the defendant. The court found that the said Adaline S. Budd devised the property in question, upon the happening of the condition aforesaid to "Albion C. Taylor of Lowell, Massachusetts, a nephew of said Adaline S. Budd, he being named and designated in said will as Albion M. Taylor"; that Mrs. Budd had no nephew of the name of Albion M. Taylor and never had, and that the insertion of his name in the will was a mistake in giving the name to the scrivener who drew the will, and that Albion C. Taylor was a nephew of Mrs. Budd, and that at the time she made her will he resided in Lowell, Massachusetts, and afterward died in that city. With respect to the decree of distribution, the court found that it also declared that the property, upon the happening of the condition therein mentioned, should become "the absolute property of said Albion C. Taylor, of Lowell, Massachusetts, who was therein designated through mistake, as above found, as Albion M. Taylor."
1. The first contention of the defendant is that the evidence and findings relating to the alleged mistake in naming Albion C. Taylor as Albion M. Taylor in the will, and especially in the decree of distribution, was an unlawful and unauthorized collateral attack upon the final judgment of the superior court in making the distribution. Many authorities are cited upon the proposition that a judgment of a court cannot be changed or modified by parol evidence showing a mistake in its terms. This proposition need not be controverted. It may be conceded that if the judgment appealed from had the effect of grafting upon the decree of distribution terms which it did not contain, and contrary to its intent and effect, it would be erroneous. Such, however, is not the effect of the judgment, nor was this the object of the plaintiff in this case. The case presents the familiar instance of a latent ambiguity. The decree of distribution, which is the final statement of the rights of the parties under the will, declares that, in the event there set forth, the land should become the property of Albion M. Taylor, of Lowell, Massachusetts. It is alleged that no person named Albion M. Taylor had ever lived in Lowell, Massachusetts; that the decree was founded upon a will which declared that the Albion M. Taylor there intended was the nephew of the testatrix and that he lived in Lowell, Massachusetts, at the time of the execution of the will. It appears, therefore, if there were no explanation, that there was no person in existence to take under the decree, that is, that there was a latent ambiguity whereby the decree appeared to be inoperative. In further explanation, it is shown that the testatrix had a nephew, whose name was Albion C. Taylor, and who resided in Lowell, Massachusetts, and that she had no nephew named Albion M. Taylor. This does not in any respect change the terms of the decree of distribution, but simply points out the person intended to be described therein, and removes the ambiguity in the decree by showing that there is a person upon whom it can operate. The true rule is stated by the supreme court of the United States in Patch v. White, 117 U.S. 210, 217, [6 Sup. Ct. 617], as follows: "It is settled doctrine that as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence. Such an ambiguity may arise upon a will, either when it names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that answer the name or description; or, secondly, it may arise when the will contains a misdescription of the object or subject; as where there is no such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator. . . . Where it consists of a misdescription . . . if the misdescription can be struck out and enough remain in the will to identify the person or thing, the court will deal with it in that way; or, if it is an obvious mistake, will read it as if corrected. The ambiguity in the latter case consists in the repugnancy between the manifest intent of the will and the misdescription of the donee or the subject of the gift. In such a case evidence is always admissible to show the condition of the testator's family and estate, and the circumstances by which he was surrounded at the time of making his will." A decree of distribution is no more immune against explanation of a latent ambiguity than is a will, and the same rule which the court, in the case cited, applied to an ambiguous will is applicable, under like circumstances, to an ambiguous decree or judgment. This may easily be illustrated by the case of a judgment for money against, we will say, John Smith. An execution being issued against the defendant, the sheriff seizes the property of a man named John Smith in satisfaction of the judgment, said John Smith being an entire stranger to the proceeding, and not the person served with process in the action. No one would for a moment contend that in such a case the man whose property was seized could not go to court and by parol and extrinsic evidence show that, although his name was John Smith, he was not the particular John Smith named in the judgment. Such a proceeding would not be an attack upon the judgment, nor would it in any respect change or modify it. It would merely point out the person to whom the judgment was directed.
2. Defendant further contends that the cause is barred by the provisions of subdivision 4 of section 338 of the Code of Civil Procedure. This subdivision provides that an action for relief on the ground of mistake must be begun within three years after the cause of action accrues. This contention is founded upon the same misconception of the nature of the case as that upon which the last-mentioned point was based. This is not an action to obtain relief on the ground of mistake in the decree of distribution, but is an action to enforce rights under that decree. The effect of the proceeding is not to change or alter that decree, but to enforce it according to its true intent and meaning. Subdivision 4 of section 338 has no application.
3. The next objection is that the suit involves the adjudication of a forfeiture of the estate of Charlotte Budd Armstrong in an action in equity. This, it is claimed, cannot be done, the proposition asserted being that "it is a universal rule in equity never to enforce either a penalty or a forfeiture." Numerous authorities are cited to this effect. It is claimed that the plaintiff was required to establish the fact that Charlotte Budd Armstrong by removing from the land had forfeited her estate, that it is necessary for him to begin an action for that express purpose, or to terminate her estate by an entry, and that until he has done so he cannot go into equity and quiet the title of his intestate to the said land which, according to defendant's contention, could only vest in his intestate by reason of the forfeiture. This objection assumes that the estate of Mrs. Armstrong was an estate upon condition subsequent which can only be divested by an entry for condition broken, or by a judgment at law. The estate which by the terms of the decree was vested in Mrs. Armstrong was not an estate upon condition, but a conditional limitation. The happening of the condition does not, in contemplation of law, in a case such as that before us, operate to forfeit the estate given to the first taker, but merely to determine it, that is to bring it to an end. Section 778 of the Civil Code is as follows: "A remainder may be limited on a contingency which, in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder is to be deemed a conditional limitation." Section 773 declares that "a fee may be limited on a fee upon a contingency, which, if it should occur, must happen within the period prescribed in this title." The latter clause describes precisely the estate herein created in the intestate of the plaintiff.
The distinction between conditional limitations, contingent remainders, and estates upon condition subsequent, and the different consequences as to the taking effect of the subsequent estate, is clearly set forth in 2 Washburn on Real Property, (6th ed.), sec. 1640, as follows: "If an estate is limited to A until B return from Rome, and after B return to C, the limitation is a contingent remainder, and good as such. But if the estate had been limited to A, which would be for life if no words of inheritance were annexed, provided that if B return from Rome the estate should go to C, the limitation, though expressly the same in effect as the first, would be, not a remainder, but a conditional limitation. In the one case, if C's estate comes into effect at all, it is after the prior estate had terminated by the natural expiration of the time for which it was limited; whereas, in the other, C's estate, if it took effect, came in and displaced the prior estate before its natural termination, and took its place as a substitute therefor. Then, again, though the estate of A is a conditional one, liable to be defeated by the happening of a contingent event, it is not a case of condition at the common law, where to determine an estate for a breach of it required an entry by the grantor or his heirs, who thereby regained the estate originally parted with; but it is a case where the estate is wholly parted with by the grantor, no interest being left in him, and passes at once, upon the happening of the event, to him to whom it is limited. That contingent event, when it happens, is the limitation of the first estate granted; and the estate, instead of going back to the original grantor, goes over, eo instanti, and without any act but that of the law, to the party named in the very gift itself of the estate, as the one to take it in that event." (See, also, to the same effect 1 Washburn on Real Property, (6th ed.), sec. 165; 2 Washburn on Real Property, (6th ed.), sec. 970; 4 Kent's Commentaries 127; Miller v. Levi, 44 N.Y. 494; Stearns v. Godfrey, 16 Me. 160; Coppage v. Alexander, 41 Ky. (2 B. Mon.) 313, [38 Am. Dec. 153]; Jewell v. Pierce, 120 Cal. 83, [52 P. 132].) The latter case is practically the same as the case at bar, and although the point here made was not raised, the suit to quiet title was treated by the court as a proper method of establishing a title in the owner of the subsequent estate. In the present case, therefore, no proceeding for a forfeiture, or by way of re-entry for condition broken, was required as a condition precedent to a suit in equity to establish title. The estate of Mrs. Armstrong terminated, eo instanti, upon her removal from the land, and that of the plaintiff's intestate immediately vested as a legal estate in possession.
4. There is no merit in the point that the condition annexed to Mrs. Armstrong's estate in the decree of distribution is void because it is repugnant to her estate in fee therein previously created. Even if the ruling applying to grants by an individual is also applicable to a decree, the entire provision must be considered in order to ascertain the intention and effect, and, so considered, the conditions expressed in the decree constitute a limitation and not a repugnant provision. (Pavkovich v. Southern Pacific Co., 150 Cal. 46, [ 87 P. 1097], and cases there cited.)
5. It is earnestly contended that the evidence is insufficient to support the finding that the decree of distribution provided that the property in question should become "the absolute property of Albion C. Taylor, of Lowell, Massachusetts, who was therein designated through mistake, as above found, as Albion M. Taylor." We think this contention is also untenable. The evidence showed that Albion C. Taylor died in 1901, that he was then upwards of sixty years of age and had resided in Lowell practically all of his life; that he had a brother named Albion R. Taylor who was older than he, and who died when quite young, many years prior to the making of the will in question; that the testatrix, Mrs. Budd, had visited the family long after the death of Albion R. Taylor and was fully aware of the fact that he was dead and that she had no nephew in Lowell, Massachusetts, or elsewhere, of the name of Albion R. Taylor, and no nephew named Albion Taylor except said nephew, Albion C. Taylor, and his son of the same name. It also appeared that no person of the name of Albion M. Taylor ever resided in Lowell, Massachusetts. This evidence was clearly sufficient to show that the person intended by the decree was the same person as that intended by the will, and that this person was no other than Albion C. Taylor, the plaintiff's intestate. The decree identified the person intended by giving the first name as Albion, the last name as Taylor, and the middle initial as "M," and by the fact that he lived in Lowell, Massachusetts. The extrinsic evidence showed that the decree could not have intended Albion M. Taylor, since no such person existed. This created a latent ambiguity, and in order to show the person who was really intended it was proper to prove the additional facts that the testatrix had a nephew named Albion C. Taylor and that he resided in Lowell, Massachusetts, at the time the will was made and at the time of the decree of distribution, and from this the court properly inferred that the Albion C. Taylor who was her nephew and who resided in Lowell, Massachusetts, was the person referred to in the decree.
6. Several errors of law are assigned by the appellant, none of which we think is well taken. The assessment-rolls were properly introduced in evidence for the purpose of showing that Adaline S. Budd had acquired title to the property by adverse possession. This appears to be the only purpose for which the rolls were admitted, and it will not be presumed that the court considered them for any improper purpose. Furthermore, as both parties claim under the will of Adaline S. Budd, the evidence could have caused no prejudice to the appellant, even if it had been technically inadmissible. The declarations of Mrs. Budd to Mary McCowen to the effect that she had a nephew named Albion C. Taylor who resided in Lowell, Massachusetts, was properly admitted under subdivision 4 of section 1870 of the Code of Civil Procedure, which provides that on a trial there may be proved "the act or declaration, verbal or written, of a deceased person in respect to the relationship . . . of any person related by blood or marriage to such deceased person." The other specifications relate to the evidence introduced for the purpose of showing the facts in regard to the existence and identity of the person named Taylor, mentioned in the decree and in the will in question. There can be no question but that this evidence was admissible for that purpose under the authorities heretofore cited.
The judgment and order are affirmed.
Sloss, J., Henshaw, J., Lorigan, J., and Beatty, C.J., concurred.
Thomas Bard McFarland[At the opening of the Supreme Court of California for the January session on Monday, January 11, 1909, brief exercises in memoriam of Hon. Thomas Bard McFarland, late Associate Justice of the Supreme Court, were held.
Mr. George C. Sargent, on behalf of the San Francisco Bar Association, presented a memorial in honor of the deceased jurist, which, after appropriate remarks by Mr. Chief Justice Beatty, was ordered spread on the minutes.
The memorial, and the remarks of the Chief Justice, in full, follow:]
THOMAS BARD McFARLAND was born on the nineteenth day of April, 1828, upon the homestead of his family, near Mercersburg, Pennsylvania. He graduated from Marshall College, Mercersburg, in 1846; and soon thereafter, becoming interested in the law, began its study with his cousin, Robert M. Bard, in Chambersburg, Pennsylvania. He was admitted to practice in 1849, by Honorable Jeremiah S. Black, who was then the presiding judge of the judicial district in which Franklin County was situated. Instead of commencing practice, however, he joined the throng hurrying westward, and crossed the plains to California, where he arrived in September, 1850. Like all newcomers, he sought to realize his golden dream by mining, which he followed for three years. At length his intellectual nature asserted itself, and he commenced the practice of his profession at Nevada City, where so many men who afterwards became famous in the history of the state, were met together. Among others were the late John Garber, Judge Niles Searls, Judge A.P. Niles, Judge Lorenzo Sawyer, Judge David S. Belden, United States Senator William M. Stewart, United States Senator Aaron A. Sargent, and many others. Among these distinguished men, Judge McFarland practiced with success and distinction until 1861. During that time he served one term in the assembly, to which he was elected in 1856.
On September 4, 1861, he was elected judge of the fourteenth district court, in which capacity he served for two terms. At the end of that time he retired from the bench, and commenced practice in the city of Sacramento, which he continued for the next twelve years, except an interval during which he served as register of the United States Land Office at Sacramento. He accepted this position at the suggestion of the late Senator Sargent.
In 1879 he served as a member of the convention which framed the existing constitution of the state of California, and took a conspicuous and useful part in the framing of that instrument. On December 18, 1882, he was appointed to fill a two-years vacancy upon the bench of the Superior Court of Sacramento County by Governor George C. Perkins; and in 1884 was elected for the full term. In 1886, however, he was elected for a full term as associate justice of the Supreme Court of California, whereupon he resigned his superior judgeship, and took his seat upon the bench of the Supreme Court in January, 1887. He sat continuously as an associate justice of the latter court up to the time of his death, a period of over twenty-one years.
Judge McFarland was originally a member of the old-time Whig party; but upon the organization of the Republican party, joined that party, and with characteristic strength of conviction, remained an ardent member up to the time of his death.
On November 20, 1861, Judge McFarland was married to Miss Susie Briggs at Nevada City, California.
The application of Judge McFarland to his official duties left him little time for other pursuits. He found time, however, to serve with zeal and efficiency upon the board of education of the city of Sacramento, and also as one of the trustees of Leland Stanford Junior University, in which latter capacity he served from the time of the organization of the university until his death.
Judge McFarland was tall, strong, and robust in physical frame. He had the full white beard of the generation gone. This, and his hearty, rough-and-ready manner, proclaimed him a typical man of pioneer days — a type one cannot regard without emotions of affection and respect.
His fidelity to his friends was enduring, ardent, and devoted. He cared little for wealth, beyond his modest wants. He had a strong, clear sense of justice, which refused to be bound by arbitrary rules, which led him to cut through and cast away all technical objections in order to get at the right. He had a sincere admiration and a chivalrous devotion for the weaker sex, and the many decisions rendered by him upon the appellate bench, show an anxiety that they shall at all times receive just consideration, accorded in a spirit of open-handed liberality, often found in the miner of olden days.
Judge McFarland was a man of fine literary taste and judgment. His decisions show that his education did not end when he left his alma mater, but continued all his life. A vein of poetical sentiment — of many-hued fancy — like a golden thread, often illuminates the somber writings on the law which flow from his pen.
The private life of Judge McFarland was singularly pure and amiable. He had all that should accompany old age — as honor, love, obedience, troops of friends. He had a ready fund of wit, of story and anecdote, so essential to a well-balanced mind, and which the history of our country has shown is often associated with true greatness and moral worth.
In his last illness, like all strong natures, he was patient, gentle, and thankful for all that was done for him. He died on September 16, 1908, leaving surviving him a loving wife and daughter. His loss leaves a vacant place in the hearts of all who knew him, an affectionate regret, which is the best monument to his memory.
We deem it fitting that this brief statement of his life and career be presented to the court, with the request that a permanent record be made of it.
At the conclusion of the reading of the memorial the Chief Justice remarked:
"It is perhaps appropriate for me, as the oldest associate of Justice McFarland on this bench, to say — as I have no doubt that I can say with entire approval of all with whom he has been here associated — that we very heartily concur in all that has been so well expressed in the memorial presented by the Bar Association in praise and appreciation of the official course and amiable character of our departed brother.
"The clerk will record the memorial in the minutes of the court."