#### Merrick *v.*Merrick.

1. Where property is devised by two descriptions, either of which is sufficient in form, but it is shown that one of them is erroneous and the other correct, the former should be rejected, and the property will pass by the latter description, according to the maxim, *Falsa demonstratio non nocot.*

2. A. devised his lands to B. for life, in the following words: “All the . . . real estate I may die seized of.” He owned 160 acres of land, and no more, one-half of which was in section 27 and the other moiety was the east half of the north-east quarter of section 28. He devised the portion in section 27, by a correct description, to C., at the death of B., charged with certain legacies, and devised the portion in section 28 to D., at the death of B., charged with certain legacies, but by mistake in the particular description of the land devised to D., the word *south*was inserted instead of *north. Held,*that so much of the description as is erroneous should be rejected, and that the land will pass to D., on the death of B., by the other provisions of the will.

Error to the District Court of Yan Wert County.

In 1875, Adam R. Merrick, executor of and a devisee under the will of Adam Merrick, brought suit in the court of com*127mon pleas of Yan Wert county, against J. J. Merrick and others. In the petition it is shown that Adam Merrick, oh 'January 13, 1872, executed his will of that date in due form, which will is as follows : “ I do give and bequeath to my beloved wife, Mary Merrick, all the personal and real estate that I may die seized of, to have and to hold during her natural life, and all the personal estate of whatsoever kind I may die seized of, she my said wife is to have to dispose of as she may think best at her death, should she outlive me.

“ Item 2. I give and bequeath, after the death of my wife, to my soh, Robert Merrick, the west half of the north-west quarter of section number twenty-seven (27),’ township one (1), south range three (3) east, he paying' Frank Merrick, son of J. J. Merrick, two hundred dollars, at the time, he, Frank Merrick arrives at his majority; and he is to pay Isia O. Merrick, daughter of J. J. Merrick, at the time she arrives at her majority, one hundred and fifty dollars. Elmer Merrick, the oldest son of Isaac Merrick, two hundred dollars at the time he arrives at his majority.

“ Item 3. I give and bequeath to my son Adam R. Merrick, after the death of my wife, the east half of the south-east quarter of section number twenty-eight (28), township one (1), south range three (3), east, containing eighty acres of land more or less. And he, the said Adam R. Merrick, has to pay Mary Elsie Merrick, his daughter, three hundred dollars, when she arrives at her majority, and his son, Charles H. Merrick, two hundred dollars, at the time he arrives at his majority, and he is to pay Adam W. Smith, one hundred and fifty dollars, at the time he arrives at his full age or his majority.

“ Item 4. I give and bequeath to Alice Eteline Stewart, daughter of John Stewart, deceased, three hundred dollars at my death, if she outlives me, to be paid out of my personal estate, at the time she arrives at her majority.

“ Item 5. I do appoint my son, Adam R. Merrick, executor of this my last will and testament. I do hereby revoke all former wills by me made,”

*128That on November 18, 1872, tbe will was admitted to probate in the probate court of Yan Wert county, and said Adam R. Merrick accepted the trust as executor under the will, and received letters testamentary as such executor:

That neither at tbe time the will was made, nor subsequently, did Adam Merrick own any other lands than the following : tbe west half of the north-west quarter of section 27, and tbe east half of the north-east quarter of section 28, both tracts in Hoaglin township, Yan Wert county :

. That by the third item in his will, above set forth, Adam Merrick intended to devise to Adam R. Merrick tbe east half of the north-east quarter of section 28, above mentioned, but by mistake of tbe draftsman, tbe land was described in the will as the east half of the southsast quarter of said section 28, in which tract Adam Merrick had no interest at or after the tune the will was made:

That by a proper construction of the will, the word *south,*in said third item, should be read *north :*

That Adam W. Smith, and other legatees, whose legacies are charged upon the real estate, as appears by the will, have arrived at majority, and their legacies are payable:

And that doubts are entertained by the executor, and others interested in the will, as to tbe proper construction and meaning of the third item of the will, with respect to tbe land devised.

The prayer is that the court will declara the proper construction and meaning of the will, in the particular aforesaid, to the end that the rights of the legatees and devisees, and tbe duty of the executor, may be known, and the legacies may be paid.

The defendants, heirs of Adam Merrick, denied the allegations of the petition as to the mistake and the intention of tbe testator.

Tbe widow of Adam Merrick is still living.

Tbe district court, to which tbe cause was appealed, by its judgment construed the will as the plaintiff below claimed it should be construed, and the defendant below, on leave, filed in this court a petition in error to revérse tbe judgment.

*129*Alexander & Saltzgaber*and *I. D. Clark,*for plaintiffs in error:

There is no latent ambiguity. Broom’s L. Max. 468; *Tucker*v. *Seaman's Aid Society, 7*Met. 188 ; 1 Red. on Wills, 503; *Careless*v. *Careless,*1 Meriv. 384. Parol evidence is not admissible to vary or contradict the will or remove patent ambiguities. *Worman*v. *Teagarden,*2 Ohio St. 280 ; *Ashworth*v. *Carleton,*12 Ohio St. 361; *Smith*v. *Bell,*6 Peters, 68; 1 Redfield on Wills, 497; *Fitzpatrick*v. *Fitzpatrick,*36 Iowa, 674 (14 Am. R.) ; *Judy*v. *Williams,*2 Ind. 449; *Mann*v. *Mann,*1 Johns. Ch. 231; *Kepworth*v. *Cabell,*19 Grat. 758; *Jackson v. Sill,*11 Johns. 201; *Watson*v. *White,*5 Md. 297; *Kurtz*v. *Hibner,*55 Ill. 514 (8 Am. R.); *Langston*v. *Langston,*8 Bligh. N. S. 167; *Cheney's case,*5 Coke, 68; *Hiscocks*v. *Hiscocks,*5 M. & W. 362; *Newburgh*v. *Newburgh,*1 Madd. Ch. 364; *Worthington*v. *Hyler,*4 Mass, 196 ; 1 Green. Ev. 297. This is not a case for the application of the maxim, *Falsa démonstratio non.nocet.*Broom’s L. Max. 490 ; *Winckley*v. *Kaeme,*32 N. H. 268; *Alen*v. *Lyons,*2 Wash. C. C. 475; *Jackson*v. *Sill, supra*; *Hiscocks*v. *Hiscocks, supra.*See also Bacon’s Abr. tit. Devise.

*Price & Shissler,*for defendant in error:

There is a latent ambiguity in the will. 1 Burrill’s 1. Dic. 65; 1 Green. Ev. §§ 289-291, 297; 1 Red. on Wills, §§ 505, 574, 575, 584, 585, 587, 609, 610 ; 7 Met. 206 ; 9 Allen, 109 ; 15 Gray, 347; 5 N. Y. 434; 1 Wend. 541; 10 Paige, 140; 16 Conn. 302; 31 Conn. 190; 1 Ves. Jr. 257, 264; 3 Ves. Jr. 306. And parol evidence is admissible to show it. The cases of *Ashworth*v. *Carleton,*12 Ohio St. 381; *Worman*v. *Teagarden,*2 Ohio St. 380; *Fitzpatrick*v. Fitzpatrick, 36 Iowa, 674; *Kurtz*v. *Hibner,*55 Ill. 514 (8 Am. R. 669), commented on, and the claim made that the erroneous description being rejected, sufficient appears to constitute a proper devise to Adam R. Merrick of the land owned by the testator. .

Okey, J.

By statute, authority is granted to an executor to maintain a civil action in the court of common pleas, asking *130the direction of the court in any matter affecting the trust, estate or jaroperty to be administered, and the rights of the parties in interest. 54 Ohio L. 202, § 8; Rev. Stats. § 6202. And see *Rothgeb*v. Mauck, 35 Ohio St. 503.

This jurisdiction Adam R, Merrick has invoked; and the evidence fully supports the claim that, while the will on its face is free from ambiguity, the word south, in its third item, was inserted by mere mistake of the scrivener, the testator intending that the word *north*should be used. The sole question, therefore, is whether, on proof of such fact, it is competent for the court to declare that the east half of the north-east quarter of section 28 passed by the will to Adam R. Merrick on the death of his mother.

As there is a parcel of real estate which is accurately described in the third item of the will, it might well be argued, if that clause stood alone, that the testator must have believed he had some devisable interest in the land, and hence that the devise related to such land, although in point of fact he had no interest in it whatever. *Fitzpatrick*v. Fitzpatrick, 36 Iowa, 674; *Kurtz*v. *Hibner,*55 Ill. 514; 2 Randolph *&*Talcott’s Jarman on Wills, 403. But the clause does not stand alone, nor is it to be construed as standing alone. On the contrary, regard must be had to the whole instrument; and while the' will can only be properly construed by its words, we may be aided in such construction by evidence of the situation of the testator, with respect to his property and the objects of his bounty, at the time the language was employed. *Worman*v. Teagarden, 2 Ohio St. 380.

The inquiry, then, is whether the description in' the third item is referable to the fact that the testator must have supposed he had a devisable interest in the premises there described, or whether the mistake claimed, that is, the use of the word *south*when *north*was intended, was really made. Which is the more reasonable supposition ? It appears that the testator had no interest whatever in the land there described, at the time or after the will was executed. It then belonged to and was in the possession of his son Isaac, and the theory that the testator was perfectly aware of that fact is certainly reasonable. *131On the other hand, he did own the east half of the north-east quarter of the same section—indeed, resided on it when the will was made and until he died; and it is not denied that it is embraced in the devise to his wife, for he devised to her, for life, *all*his real estate, consisting of two eighty-acre tracts. One of these tracts he devised by proper description to his son Eobert, on the death of his mother, charged with certain legacies, and unless the other tract was devised to Adam E., at the death of his mother, it will pass at her death to the testator’s heirs. But a testator is not presumed to intend to die intestate as to any interest in his property to which his attention seems to have been directed. *Collier*v. Collier, 3 Ohio St. 369. Again, unless the testator intended by the third item to devise the tract in the north-east quarter which he really owned, why postpone the taking effect of such devise until the death of his widow ? Isaac, as we have seen, was the owner and in possession of the land in the south-east quarter, and it is not reasonable that the testator believed his widow could derive any advantage from a devise to her of that land during life. Moreover, why charge the land devised to Adam E. with the payment of $650 in legacies, unless he intended to devise the premises he really owned? Would he make such charge on land in which he had no interest, on the supposition that he had some claim upon it ? Besides, at the time the will was executed, Adam E. Merrick liad resided with his family on the north-east quarter in question for more than six years, and he continued to reside thereon. Is it not reasonable to suppose that the testator desired him to have the land upon which he resided ? Clearly, all the land which the testator owned was devised to his wife for life, and the inference is irresistible that the same land, and no other, was devised to his two sons, Eobert and Adam E., at the death of Mrs. Merrick. One moiety of it passes by clear words to Eobert, on the death of his mother; and, rejecting the erroneous description, the word *south,*sufficient appeal’s on the face of the will, in the light of the facts here disclosed, to warrant us in saying that by the will of Adam Merrick the other moiety, the east half of the north-east quarter of section 28, Hoaglin township, Yan Wert *132county, passes to Adam B. Merrick, on the death of his mother. And thus the case is determined by a just and proper application of the maxim, *Falsa demonshratio non nocet. Ashworth*v. *Carleton, Banning*v. Banning, 12 Ohio St. 381, 437; 1 Randolph *&*Talcott’s Jarman on Wills, 734, 744; 2 *Id.*390.

*Judgment affirmed.*