George Walston's Lessee vs. Rufus White, 5 Md. 297

Le Grand, C. J., delivered the opinion of this court. This is an ejectment brought to recover a tract of land called Jerusalem, claimed by the appellant by virtue of a devise to him contained in the will of Jonathan S. Parsons. The testator was seized of a body of land comprising sundry small tracts, which had been resurveyed and consolidated into one tract, called Parsons’ Outlet. Through Parsons’ Outlet flowed the Beaver Dam Branch, separating from the body which lay on the north side two small parts which lay on the south side, and in immediate contiguity with the stream.

The road from Salisbury to Dirickson’s Cross-Roads passes through the said tract and crosses the branch, leaving a large body of Parsons’ Outlet on the north side of the road, and a considerable portion south of the road and north of the branch. Parsons owned also the tract called Jerusalem, which lies southwardly of Beaver Dam Branch, distant from it one and-a-half to two miles. There is no evidence that he owned any land lying southwardly of the branch except Jerusalem, and the portions of Parsons’ Outlet so designated on the plot.

The clauses of his will under which this controversy arises are: — 1st. “I give and devise unto Sydam H.

Mills, son of David Mills, all my land which lies on the south side of the county road leading from Salisbury to Dirickson’s CrossRoads, called Parsons’ Outlet, or by whatsoever name or names the same may be known or called, except so much of said land as lies on the south side of Beaver Dam Branch and 2nd. “I give and bequeath unto George Walston all the lands I own on the south side of Beaver Dam Branch, to him, his heirs and assigns, forever.” The appellant claims title under item second of the will and the defendant under first.

There is a good deal of proof, both written and oral, as to the location of Beaver Dam Branch. It is not necessary that it should be set out in detail. It is sufficient to say that some of the witnesses prove the stream, in its entire length, was called and recognized as Beaver Dam Branch, whilst others «rove that that part of it above the forks, designated on the plat, was known by a different name, and that It was only to that portion of it lying below the forks to which the designation of Beaver Dam Branch was applicable.

In this state of case, at the trial below, the plaintiff asked of the court three instructions, all of which were refused. They in substance are as follows: — The first asked the court to say to the jury, that if they should find the stream located by the plaintiff as Beaver Dam Branch, such In point of fact, and that the tract of land called Jerusalem lies on the south side of it, then the plaintiff was entitled to recover. The second asked that the court should say that, according to the true construction of the will of Jonathan S.

Parsons, all his lands which lie to the southward of Beaver Dam Branch, or of any part thereof passed by said will to the plaintiff; and the third is the same as the second, except it puts It to the jury to find from the evidence in .the cause the land lying south of Beaver Dam Branch. It is the refusal of the court to grant either of these prayers, which constitutes the exception of the appellant. It is clear to our minds that the land involved in this controversy did not pass under the first item of the will.

The' land there referred to is "Parsons’ Outlet.” It is true the language is “Parson’s Outlet, or by whatsoever name or names the same may be known or called.” The word same evidently refers to “Parsons’ Outlet,” and the words “or by whatsoever name or names the same may be known, do not point to any other tract, and find an explanation in the fact that the patent for the tract called “Parsons’ Outlet” was a resurvey of six smaller tracts, called “Nelms Meadows,” “New Holland,” “Wolf Pit,” “Bacon Quarter,” “Partnership,” “Eagles Addition,” with vacancies added.

The land not passing under the first item, the next and main question in the case is, whether it passes under the second, for if it does not the plaintiff has no standing in court. It is a well established canon of construction, that the intention of the testator is to govern when it is not in conflict with some principle of law. Berry vs. Berry, 1 H. & J., 421. Under the second item of the will in this case, it is manifest it was the intention of the testator to give to the plaintiff all his lands lying “on the south side of Beaver Dam Branch.” The language is too explicit to allow of doubt as to his intention.

The only difficulty arises from the fact that the evidence shows there is a difference of opinion as to the true location of the stream, and the question therefore is, how is that difficulty to be removed? In other words, whether it was competent for the jury to find from the evidence the true location of the Beaver Dam Branch and the lands owned by the testator lying south of it? If they had the right, then it is too plain for'argument that the true construction of the will gave to the appellant all such lands as they should find so situated.

It is a principle of construction that where a given subject is devised and there are two pieces of property, the one technically and precisely corresponding to the description in the devise, and the other not so completely answering thereto, the latter will be excluded. 1 Jarman on Wills, 720. This principle has been invoked by the appellee, on the ground that the second item of the will would be completely gratified by giving to the appellant those portions of Parsons’ Outlet which lie southwardly of Beaver Dam Branch, below the forks.

This undoubtedly is so if those portions of Parsons' Outlet be “all” the lands which the testator owned which are south of the branch; but if they are not all, then they would not gratify the requirement of the second item of the will. But we have no doubt about the right of the plaintiff to introduce evidence to show the true location of the lands and of the branch.

The rule is this: where the language of the testator is plain and unambiguous such language must govern, and therefore extrinsic evidence is inadmissible to show that he meant something different from what his language imports; but any evidence is admissible, which, in its nature and effect, simply explains what the testator’/ws written; “in other words, the question in expounding a will is not what the testator meant? as .distinguished from what his words express; but simply what is the meaning of his words?

And extrinsic evidence, in aid of the exposition of his will, must be admissible, or inadmissible with reference to its bearing ■upon the issue which this question raises. Wigrani’s Rules of Law, 9.

So again proposition fifth of the same author, which is, that, “for the purpose of determining the object of a testator’s bounty'", or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the properly which is claimed as the subject of disposition, and to the ■circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or .thing intended by the testator, or to determine the quantity of the interest he has given by his will.” In this action it is incumbent on the plaintiff to show the land which he claims, to be “on the south side of Beaver Dam Branch.” To do this he must locate this branch and also the land.

The defendant may dispute his location of either or both, and the questions that thus arise are questions of fací, which are to be determined by proof, and to be passed upon by the jury as in any other case. Goodtitle on Demise of Radford, vs. Southern, 1 Maule & Selw., 299. 1 Greenleaf's Ev., secs. 287, 288.

The plaintiff’s first prayer leaves to the jury to find the location of Beaver Dam Branch, the property in dispute, and the ownership of it by the testator at the time of making his will and of his death; and on these facts being found in conformity to the theory of the prayer, as a conclusion of law flowing from them, pronounces the right of the plaintiff to recover. This we think was correct and ought to have been granted. The objection urged to the prayer on behalf of the appellee was, that it ought to have left to the jury the intention of the testator in the use of the words.

This we have already shown cannot be done when the language is plain and unambiguous. The only purpose for which extrinsic evidence could be introduced, is to point out the thing devised or the object of the bounty of the testator.

The same author, to whom we have referred at page 87, pursuing the inquiry involved in the suggestion, says: “The question, therefore, in its extreme form is, whether the courts can admit evidence which, passing by the written will, makes the intention ofthe testator — as an independent'fact — the direct and immediate subject of proof; in other words, whether a nuncupative will may be added to a written will?

The rule ofthe common law and the letter of the statute both require that the answer to this question should' be in the negative.™' , The other two prayers are but corollaries from the first,, and like it, w,e think, should have been granted. Judgment reversed and procedendo awarded,