Opinion
(June Term, 1829.)
1. A testator bequeathed a large estate, in land and slaves, to his son, and by a subsequent clause of the same will gave one of the same slaves to his daughter: Held, that the legatees took the slave by moieties.
2. The son claimed the slave by a gift prior to the will; but as he had taken other property under the will: Held, that he had made his election, and could not claim against it.
3. There being no latent ambiguity, but plain contradictory bequests: Held, that parol evidence was inadmissible to prove the testator's intention to give the property to the son.
4. Where there is no latent ambiguity, but plain contradictory bequests, parol evidence of the testator's intention is inadmissible.
From WARREN. The bill was filed in 1817. The original parties to it were Charles G. Field and Harriet, his wife, plaintiffs, and William and Thomas B. Eaton, executors of their father, Thomas Eaton, defendants. During the pendency of the suit the original plaintiffs died, and it was prosecuted in this Court by the plaintiff Alexander S. Field, as administrator de bonis non of Charles G. Field.
Badger for plaintiff.
Seawell, contra.
The facts admitted by the pleadings were that the testator of (284) the defendants, by his will, gave a large estate to his son, the defendant William, consisting of lands and slaves; among the latter was a female slave by the name of Sal. In a subsequent clause of his will the testator gave the same negro to his daughter Harriet, the wife of the original plaintiff, Charles G. Field. Both bequests were in the same words, viz.: "Sal and all her increase since 1804." The defendant William Eaton, in his answer, claimed the girl Sal and her increase under a parol gift made before 1804, and insisted that it was the intention of the testator to confirm the prior gift to him, and that the mention of her name in the gift to Harriet was a mistake. Evidence of the testator's intention was taken and filed, but it is unnecessary to give a statement of it, as it was deemed inadmissible.
There is undoubtedly a contradiction and repugnancy in the bequests contained in this will. The testator first gives Sal by name to his son William. He then gives her in the same way to his daughter Harriet. The inquiry is, What was the intention of the testator, as it is to be collected from the face of the will? If such an intention can be ascertained by looking at the will, and it be in violation of no principle of law, it is the duty of the Court to give it effect. In (285) the construction of wills, the testator's meaning is to be discovered from the will itself, taking in aid the general rules of construction established by former decisions. Noel v. Western, 2 Ves. Bea., 271. In cases of such direct contradiction and absolute repugnancy, the intention of the testator cannot be discovered from the face of the will.
It is manifest the chattel was intended for one or both of the legatees; it is not one of those cases in which the bequest is void for uncertainty. It is then necessary to establish some rule of construction prescribing who is under such circumstances to take the legacy, and in what manner, in order to preserve the peace of society and to prevent future litigation. If we cannot ascertain the intent of the testator by looking at the will, we next inquire what construction the law has imposed on such inconsistent bequests. In such case no rule of construction has been established in this State. We must then resort to the adjudications of that country from which the elementary principles of our system of jurisprudence have been derived. There we find a great contrariety of opinion. Some thought that both devises were void for uncertainty. Owen, 84. Lord Coke held that in two different devises of the same thing, the last should take place; others have concurred with him in saying that the second devise revokes the first. Cruise Dig., tit. Devise, ch. 9, sec. 22. In Paramore v. Yardley, Plow., 539, 541, it is said the legatees shall take as joint tenants. Of this opinion was Swinburne. In Ulrick v. Litchfield, 2 Atk., 374, Lord Hardwicke, referring to Paramore v. Yardley, said: "The reasoning in Plowden is not convincing to me. I rather incline to Lord Coke's, though the latter cases have taken it otherwise." In Ridout v. Pain, 3 Atk., 493, Lord Hardwicke again says: "The law presumes that a testator, even in making his will, may vary his intention. As suppose a man gives a farm in Dale to A. and his heirs in one part of his will, and in another to B. and his heirs: it has been held by the old books to be a revocation, but (286) latterly construed either a joint tenancy or tenancy in common, according to the limitation." The opinion supported by the greatest number of authorities is that the two devisees shall take in moieties. Coke Litt., 112, b. note 1; Cruise's Dig., Devise, ch. 9, sec. 22; Paramore v. Yardley, Plowden, 541; Anonymous, Cro. Eliz., 9; Coke v. Bullock, Cro. Jac., 49. If a thing be given in one part of a will to one and in another part to another, the devisees shall take in moieties. Edwards v. Symons, 6 Taunt., 361.
I shall not attempt astutely to assign the reasons of these conflicting opinions; nor shall I vainly attempt to reconcile them. Distinguished jurists of modern times, with all the wisdom of former ages and all the lights of experience before them, have sanctioned the opinion expressed in Plowden, that the devisees shall take in moieties, rejecting the old doctrines, that the devises are void for uncertainty, and that the latter devise is a revocation of the former. I shall adopt the modern opinion, and declare that these legatees take in moieties; solacing myself with the reflection, if it be erroneous, that it is the accepted opinion of modern times, is supported by the greatest number of authorities, and has the sanction of distinguished names.
The defendant William Eaton alleges that Sal had been given to him, and put in his possession by the testator, in 1803 or 1804, long anterior to the making of the will; was his property when the will was executed, and the testator had no right to dispose of her by his will; and has filed several depositions to establish that fact. But it appears that William Eaton has taken a large estate under the will, and has thus made his election.
The general rule is that a person cannot reject and accept the same instrument; he cannot claim under and against it. It is a rule of law as well as of equity, and applies to every species of instrument, whether a deed or a will. Birmingham v. Kirwan, 2 Scho. and (287) Lef., 449. A person shall not claim an interest under an instrument, without giving full effect to it, as far as he can, renouncing any right or property which would defeat the disposition made in the will. The ground is the implied condition, upon intention, though from mistake. Thellusson v. Woodford, 3 Ves., 220. A condition is implied, either that the devisee shall part with his own estate devised by the will or shall not take the bounty of the testator declared in the will. Broome v. Monck, 10 Ves., 600; Andrew v. Trinity Hall, 9 Ves., 533. He shall not defeat the disposition made by the will, and yet take under that instrument. He must make his election. Here the defendant William Eaton has made his election, and has taken a large estate under the will. He cannot now deny the right of the testator to bequeath Sal, but must submit to that disposition of her which has been made by the will.
It is contended that the testator, in bequeathing slaves to the defendant which had been given him long anterior to the making of the will, did not intend to interfere with defendant's rights under the antecedent gift; and a deposition has been filed to show such intention. But defendant has taken a large estate under the will, including much property to which he had before no title. He has thus made his election, and cannot take both under and against the will. This is a conclusion of law, founded on the doctrine of election.
It is not necessary now to inquire whether the defendant can contradict this conclusion by parol testimony, or whether he be not estopped from denying it. This is not the point of difficulty in the case. The same slave has been bequeathed by one clause of the will to William, and by a subsequent clause to Harriet. The purpose of introducing the parol testimony is to show that the testator did not intend to bequeath any interest in Sal to the legatee Harriet, and thus defeat the (288) bequest to her. Such evidence will be contradictory to the plain language of the will. The law excludes, from principle and policy, the introducing of parol evidence to contradict or alter instruments of writing. They are presumed to be repositories of truth. Principle prohibits it because such instruments are, in their nature and origin, entitled to higher credit than that which appertains to parol evidence. Policy forbids it because it would be followed by mischievous and inconvenient consequences. 3 Starkie Ev., 995. The law permits the introduction of parol evidence to explain some cases of ambiguity in instruments of writing. Latent ambiguities, such as are not apparent on the face of the instrument, may be explained by parol testimony. But such evidence is inadmissible to explain a patent ambiguity, one apparent on the face of the instrument. 3 Starkie Ev., 1000. There is a repugnancy in the bequest of the same slave in one clause to William and in a subsequent clause to Harriet, but no ambiguity; and if it be called an ambiguity, it is patent, apparent on the face of the instrument, and by the settled rules of law not susceptible of explanation by parol evidence. It cannot be competent for William to contradict by parol testimony the intention of the testator as is plainly expressed in his written will; to contradict the plain language of that will, and thus defeat the bequest to Harriet, and deprive her of that property which she claimed by a paper title. It is not believed that parol evidence is admissible to show that the testator did not intend what he plainly declared in his will. Lord Hardwicke says, in Ulrick v. Litchfield, 2 Atk., 373, that upon the construction of a will, courts of law and equity admit parol evidence only in two cases — first, to ascertain the person, where there are two of the same name, or where there has been a mistake in a christian or surname; the second case is with regard to resulting trusts relating to personal estates.
These are cases of latent ambiguity; there are others which are (289) embraced by the same principle.
PER CURIAM. Declare the plaintiff and the defendant William to be entitled to the slave and her increase, in moieties, and direct an account of the profits of their labor.
Cited: Morton v. Edwards, 15 N.C. 509; McGuire v. Evans, 40 N.C. 273; Chilton v. Groome, 168 N.C. 641.