Opinion
No. 3356.
Decided November 4, 1942.
Upon a bill in equity to remove a cloud from the title to real estate, the description claimed to be a cloud applied with reasonable certainty to a definite tract of land; hence testimony of the scrivener was inadmissible to show that another tract was intended. The bill in such case was dismissed without considering the propriety of the form of action. Boundaries and abuttals in a deed control the estimate of quantity therein.
BILL IN EQUITY, to remove a cloud upon the title to real estate alleged to be owned by the plaintiff. By deed dated May 29, 1931, Jennie E. Morrison conveyed to the defendant a tract of land in Meredith abutting on the easterly line of Plymouth Street, which runs approximately north and south, and by the second clause of her will, which was allowed by the Probate Court on January 12, 1934, she devised to the defendant certain real estate adjoining that tract. The clause in question reads as follows: "I give and devise to Verdie E. Johnson a certain small tract of land lying between the land she now owns, situate in said Meredith, and the brook, bounded as follows: northerly by a line extending from the end of her northerly line to the brook; easterly by the brook, southerly by a line extending from the end of her southerly line to the brook, and westerly by land of her, the said Verdie E. Johnson; to her, her heirs and assigns."
The plaintiff, who is the son of Jennie E. Morrison, claims title to this real estate as residuary devisee under his mother's will. He further claims that the land which the testatrix intended to devise to the defendant lies south of the tract deeded to her in 1931, and that the language of clause 2, read in the light of the surrounding circumstances, sufficiently describes that land.
At the conclusion of the evidence the defendant moved that the bill be dismissed because the form of action was improper, because the plaintiff was guilty of laches, and because the description contained in clause 2 "is clear and can be made out on the ground in accordance with the apparent wishes" of the testatrix. This motion was denied subject to exception.
Trial by Lorimer, J., who made no findings of fact but transferred the case to this court without a ruling.
Tilton Tilton (Mr. Frederick A. Tilton orally), for the plaintiff.
Harold E. Wescott (by brief and orally), for the defendant.
If the northerly and southerly boundary lines of the land conveyed to the defendant in 1931 are sufficiently projected in an easterly direction, they reach a brook. This brook, according to the testimony, is called Cold Brook or the fish hatchery brook. Another brook is situated south of the defendant's land, and it could be found on the evidence that this stream was, at the time the testatrix executed her will, commonly called the Brook. The plaintiff therefore contends that the testatrix, when she designated "the brook" as one of the boundaries of the tract which she devised to the defendant, had reference to this particular stream. This construction cannot be adopted. The word "brook" contained in clause 2 is not capitalized, and there is nothing to indicate its use as a specific name.
The plaintiff further contends that the testatrix could not have intended to devise the area lying east of the defendant's property since, although this area is much larger than the lot conveyed to the defendant in 1931, it is referred to in the will as a small tract of land. The use of the word "small" is of slight significance. The term is a relative one, and it is a well-established rule governing the construction of conveyances that "boundaries and abuttals control the estimate of quantity." Rollins v. Varney, 22 N.H. 99, 101.
Since the description in clause 2 is definite and unambiguous and applies with reasonable certainty to a specific tract of land, the testimony of the attorney who drew the will tending in some slight degree to prove that the testatrix intended to devise a different tract was not admissible. Jones v. Bennett, 78 N.H. 224, 228, 229; White v. Weed, 87 N.H. 153, 155, 156. "The rule against overthrowing the terms of a document by reason of a mistake of drafting . . ., or, what is the same thing, by declarations of a contrary intention . . ., is a legitimate one, and must be observed." 9 Wig. Ev. (3d ed.), s. 2476, p. 254. The defendant's exception to the introduction of the testimony in question is sustained.
The conclusion that the defendant must prevail for the reasons already stated makes it unnecessary to consider the question of laches or the propriety of the form of action.
Bill dismissed.
All concurred.