Fogle's ex'r v. Fogle
Fogle's ex'r v. Fogle
Opinion of the Court
delivered the opinion op the court.
James M. Fogle died some years since in the county of Marion, leaving his widow and five children surviving him; four of these children were by his first and one by his last wife. He left a last will and testament by which he made suitable provision for his widow and the child by her, and gave the balance of his estate to his four children by the first marriage. In the sixth clause of his will he uses the following language in regard to the manner in which the division of that portion of his estate devised to these last-named children is to be made: “John D. Fogle has received from his grandfather at least three thousand dollars. Now I will to my other three children, Willie P., Mattie B., and Bettie P. Fogle, three thousand dollars each.” James M. Fogle, the devisor and father of these children, was the only child of John A. Fogle. John A. Fogle, the grandfather, died two days before his son James, leaving also a last will, by which he directed all of his estate to be equally divided between his grandchildren, the children of his son James. His will contains this clause: “ I have interest-bearing bonds and bank-stock to the amount of fifteen thousand dollars, which, together with what my farm sells for, I want divided equally between my five grandchildren, charging my grandson J. D. Fogle with an advancement of three thousand dollars.”
Thé present action in equity was instituted by J. D. Fogle, in which it is alleged that his father, James M. Fogle, at the
If the language used in a will is plain and has a definite-meaning, it is well settled that no evidence can be resorted to-in order to give it a different meaning. Parol evidence is often admitted to explain what is termed a latent ambiguity in a will. Tindall, C. J., in the case of Miller v. Travers,, says that cases upon such questions are classified as follows “1. Where the description of the devise or the subject-matter-of the devise is clear on the face of the will, but upon inquiry it is found that the words used describe two or more persons or things with equal accuracy, and extrinsic evidence must be resorted to so as to explain to which of the two the devise applies. 2. Where the description of the devise is correct in part and in part incorrect.” Many illustrations of these rules may be found in the text-books; as, “Where the testator devises his manor of Dale, and it turns out that he has two
It can not be maintained that the case before us is within either of the rules by which a latent ambiguity may be explained. The clause in the will asked to be construed is so plain and intelligible that no difficulty or doubt can arise from the language used as to the testator’s intention. The chancellor, however, is called on to annul this portion of the will upon parol proof, aided by the will of John A. Fogle, the grandfather of the appellee. It is not pretended that there is any doubtful meaning in the language of the will itself, or that it admits of but one interpretation; but it is urged that when this parol testimony is admitted, in connection with the will of the grandfather, it manifests an intention upon the part of James M. Fogle to make his children equal in both estates, and that his ignorance of the will of his father induced the devisor to give three of his children three thousand dollars each more than his son John, the appellee. The statement of Russell, the witness, is to the effect “ that the devisor, James M. Fogle, desired that his four children by his first wife should have an equal share in the distribution of both estates; that John’s grandfather had given him three thousand dollars, and he, the devisor, intended to give his other three children that much more.”
The devisor, as appears from the clause of the will already
These suggestions indicate clearly the danger resulting from an innovation upon familiar and well-established principles; and instead of lessening the rigor with which they are applied, in rejecting this character of proof in explanation of such instruments, courts of equity should continue to restrict their right of resorting to extrinsic proof in order to explain the devisor’s intention — a doctrine founded upon the wisdom and experience of chancellors who have witnessed the evil resulting from this uncertain and dangerous mode of determining the wishes of the devisor, contrary to solemn declarations made in his last will and testament.
In the case of Stephen (of color) against Walker (reported in 8 B. Monroe, 601), the devisees of John Bates, deceased, insisted that Stephen was not emancipated by the will, and in order to defeat his right to freedom introduced parol testimony conducing to show that the testator did not intend to emancipate Stephen, and that the clause of the will on which his claim was based was the result of the mistake or inadvertence of the draftsman. This court, recognizing the well-settled rule of evidence on this subject, held that when the will was free from ambiguity such evidence could not be adduced for the purpose of adding to, explaining, or subtracting from it, or to raise an argument in favor of any particular construction (1 Phillips on Evidence, 545); and further, that extrinsic evidence of intention is inadmissible for supplying a devise or any other material provision omitted by mistake, or to superadd any qualifications to the terms used, or to evince a mistake in writing the instrument.
In the case of Jackson v. Payne’s heirs the residuary clause in the testator’s will directed “ that the remainder of his estate be equally divided between his four children;” also stating
The law of this state requires wills passing title to real and personal estate to be in writing. The will of the testator, James Fogle, was properly executed and admitted to probate as required by the statute. There is no ambiguity by reason of any of its provisions, and parol testimony can not be resorted to in order to contradict, add to, or explain its contents. The appellee may have received the advancement from his grandfather years before he was charged with it, or the father may have seized upon the fact of the advancement in order to make the distinction, without reference to any action on the part of the grandfather; but whether he did or not, the meaning of the words used by him is easily understood, and when so plainly expressed, evidence that he intended the devise to the three children should be conditional is clearly inadmissible. The devisor has failed to burden the devise in that way, and the chancellor should not do it for him, even if he should be satisfied from extrinsic proof that such was his intention.
Wherefore for the reasons indicated the judgment of the court below is reversed, and cause remanded with directions to dismiss appellee’s petition.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.