Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-05-28
OF THE SUPREME COURT,
OFFICIAL.

I OFFTCLAL
Decisions OF the Supreme Court Of In,
| ccnber Term, 1860.
| Ea.hsrly and others ". Easherly and others.
This cause Is brought here by appeal from 81
much of the decree of the Chancellor as refused Il
reform clause of the will of cOmplainants tesla
tor, by supplying omission therein, occasioneC
by the madvertsnce of the person who wrote the
| will.
The facts are these: The testator, John Eatherly
at the date of the will, the owner of tract Of
/ land, on which he then lived in Wilson county
also, of certain slaves and small amount of chooses
in action, and other personally. The will bears
date 30th of January, 1856, and it was proved and
| admitted to record IN proper form in the County
Court of Wilson. At its date the testator had two
sons, Turner B. and John C. Eatherly, and mar
ried daughter, Dolly C. Young, wife of defendant
| P. B. Young.
The will first begueaths to Turner B. one-hdlf Of
| the tract of land on which testator resided; also
| Onethird of the negroes of which he might be pos
sessed at his death The will then proceeds as fol
| lows 81 also give and bequeath to Turner B.
Eatherly, in trust for the sole and separate of
my daughter, Dolly Caroline Young. wife of p. B.
Young during her life time and after her death to
| her children, or the survivor of them" Here the
clause abruptly ends without stating the subject
| thing intended TO be given.
Immediately following the foregoing unfinished
clause, comes this bequest namely, II further giUe
and bequeath TO the said Turner b. in trust for the
said Dolly Caroline one-ird of the negro property
/ of which l am possessed at my death, during her
life time, and after her death for her children or
| the survivor of them"
Next follows bequest to John C. Eatheriy of the
other onethTd of the negro property, specified
articles of personal property, and note for Sl55 90
| in money; and lastly follows residuary clause, by
which the testator gives all the residue of his per-
sonGl property of every kind and nature whatsoever,
to his son Turner B., whom he appointed sole ex-
ecutor of TIE will
The pGros evidence OF the drauehtsman Of the
will and other witnesses, establishes very clearly
the intention of the testator TO give 0neG Of the
land to hIs dsughter, Mrs. Young, and his express
Instructions to the writer of the will to that effect,
and that the omission in the will was the re-
suit of mistake and insdvertance the part of the
person who wrote the will; the tesator himself be-
| ing blind.
This evidence, however, is scarcely necessary to
be noticed as in this particular case, the omission,
If it be supplied at all, may be done from the
evidence furnished by the paper ITSELF without the
aid of proof dehOrs the will The question is cne
of Importance, and involves the exercise of ex-
tremely delicate and dangerous jurisdiction, the
temptation to the abuse of which has led the Courts
to hedge it in by the most stringent rules, and to
adopt double degree of caution in its exercise.
The language of the elementary books, well as
of the reported this subject, is too often
rather general and ineXpct The doctrine isstated
in some of the books in general terms, that parOl
evidence is not admissible to supply any clause or
toord, which may have been inadvertently omitted
by the person drawing er copying the will Jar
on on Wills, e Am. ed.) 34S; Earle of Newbury 8
case ) Madd. 364.
And this principle is quoted with appreciation by
this Court in Weatherhead VS.. Sewell, Humph.
272, 300; and in the absence of ambiguity the
face of the will its correctness general rule is
conceded.
The law requires that all wills with the isolated
exception of nancupaUs wills) shall be In writing
ana executed with certain solemnites; and to them
the rule applies with peculiar force that parol eyi>
dence cannot be admitted to contradict, add to,
explain their csntents, though the consequence
may be the total partial failure of the testators
intended disposition. Jar. Wills, 343.
But no doubt can be entertained, in the present
state of the law in regard to the admissibility of
parol evidence to explain or remove what may be
regarded latent ambiguity in will; this much
is generally conceded. Though in some of the
cases the evidence has been received to remove
what might, perhaps, seem to be rather of the
ture Of patent than latent ambiguity; and it may
here be observed that in cases of the sort under
consideration, if remedy exist at all, it must IN
der judicial organization, be administered alone
in Court of equity, whether the will be of per-
sOnal or real property, as we have ecclesiastical
court court of probate, invested with any such
jurisdiction. See Buchanan vs.. Mstlock s Humph.
800, 1913. In Williams Ex 20l Marg., it is said
that if there is ambiguity upon the fGctam of the
instrument, psrOl evidence may be admitted under
some circumstances TO explain it.
By ambiguity upon the fGctHa ia meant not an
ambiguity upon the construction, as whether par
tcular clause shall have particular effect; but
ambiguity to the foundation itself of the insru
ment, or a particular part of it. as whether the
teststor meant particular clause to be part of the
instrument, or whether it was introduced with his
knowledge; whether a codicil was meant to repub-
lish former subsequent will, or whether the
residuary clause or any other passage occiden-
tally omitted. These ore all matters Of ambiguity
upon the fGctTG of the instrument
But to justify the admission of parol evidence in
such cases, the cmbgity must be upon the face Of the
paper For where no ambiguity appears upon the
face of the instrument, this Court will not admit
paro evidence. See cases cited in notes to page 202
of Williams ON Exs.. and particularly the case Of
Fawcott VS.. Jones, Phillim (Eccl Rep) 434, where
it was sought to show that the residuary clause Of
the will was not cOextensive with the instructions
given through mere error and oversight of the
drawer and the testatrix herself. But Sir John
Nichol upon elaborate review of ali the previous
cases on the subject refused the application on the
ground that the will had been regularly executed,
and there was no ambiguity apparent up the face
of it.
But in the case of Blackwood va DOwrar, (com-
mented on in Fawcott vs. Jones' s Phillim 4S5) the
testator wrote instructions for will! in which he
left the resduum TO his youngest daughter but tie
attorney in writing the will, omitted the residpary
clause and the Court admitted evidence as to the
omission, and of the testators expressing himself
as having left the residuum to his youngest daugh
ter and pronounced for the instr actions as part Of
the will
In noticing this case. Sir John Nichol observes
that there ambiguity the face of the will,
inasmuch as there total omission of any dis
posal of the residue, and total omission of pro-
vision for of the testatOr's daughters The re-
suit OF the ecclesiAstcal cases upon the subject,
is stated by Mr.. Williams to be that where
there is ''some absurdity or ambiguity on the face
of the will, ascribabe to something either omitted
or inserted" And there is clear and satisfactory
proof that the insertion omission was contrary to
the intention Of the testator. The Court bound to
pronounce for the will not In its actua state but
with such error first reformed or corrected either
by insertion Of the passage omitted or by the omis
sion of that inserted. l. Williams on Ex. 203. lJ4
and cases cited in notes.
In Storys Eq. Jur /. vol. Sec 49, it is said there
is no doubt that courts and equity have jurisdiction
to correct mistakes in wills, when they are sppar
ent upon the face Of the will, or may be made out
by due construction Of is terms; for in cases and
wills the intention viii prevail over the words But
then, the mistake must be apparent on the tace Of
the will, otherwise there can be no relief; for at
least since the statute of Frauds paro evidence or
evidence dehors the WILL is not admissible to vary
control the terms Of the will, although 1t Is ad-
missible to remove latant ambiguity.
But the mistake, in order to lead to relief, must
be clear mistake, clear omission, demonStraole
from the structure and scope of the viii. le. sec
I8O.
These mistakes must be clearly made out; for If
il is left doubtful, equity viii net interfere. IBID
sec lSl, and see cases cited in note 2.
III Roper on Legacies, 2 VOL 1896, It Is said that
although courts Of equity are IN the habit OF cor
rectng errors and mistakes in bequests. yet that
the exercise of its Jurisdiction s to be resorted to
with great canton.
If the mistake be not clearly demonstrable, but is
merely presumptive or coDiectural, and can in any
way be recOncied with the rest Of the will, the
court will not correct the supposed metakeJ for it
is rule of construction, that mistakes in will
never to be intended, if reasonable construction
can be found out
1t is essential to the validity of bequest or de-
vise that the subject of the gift be capable Of ascer-
tainment q Roper on Legacies, 1850. If therefore,
the testators. by mistake, wrongly describe the ma