Howlett v. Howlett

By the Court,

The will of Parley Howlett did not give to the plaintiff any title or interest in the farm in question. It only passed to her the title to the personal estate after payment of his debts. And it appears that after deducting such portion of it as she received under the agreement of July 5th, 1861, the whole residue, after debts were paid, was $31; so that she actually received (less $31) the whole of that residue. And she received from the defendant a much larger amount than that, in wood and products from the farm, raised and produced after the death of her husband.

She not only had no title or interest in the farm, but she had no interest in any equity of redemption therein; and Parley Howlett had no such equity. As between him and Alfred Howlett the agreement of April 13th, 1857, was not a mortgage.

By the deed of January 14th, 1857, he conveyed the fee to the defendant, and the instrument of April 13th recited that Alfred executed it “ because he (Alfred) was disposed to make a suitable provision for his father, and for his brothers and sisters of the whole blood.” And as will be seen by the terms of it, the right of Parley Howlett was thereby *476limited to the use of it in a proper manner during his life, with liberty, if he chose, to pay the interest on the $8500 to prevent accumulation, and to declare by his will, in what proportions Alfred A. should deed it to his children by his first wife, upon receiving from them their proper shares of the payments with which that agreement charged it. But he had no right at any time during his life, upon the tender of such sum, to require a conveyance of the farm, or any portion of it, to himself or to any other person. And it was only by the mutual agreement between him and Alfred, that the provision for the $1000, which was made for the plaintiffj could be charged upon it. The only equity of redemption, therefore, or rather right to require a conveyance from Alfred, was vested in his brothers and sisters of the full blood, to be exercised only after the death of the father. And if those brothers and sisters had died before the death of Parley, the absolute and unconditional title would have belonged to Alfred, and no will or appointment of Parley Hewlett could have prevented it. It follows, necessarily, that so much of the will as purported to give any interest in the farm, either to the plaintiff" or her daughter Phebe, was inoperative. So, too, if Parley had made no will, the rights of the plaintiff and her daughter would have been the same, and at his death the whole farm would have vested absolutely in the defendant, or in his full brothers and sisters, in equal proportions, on payment to him by them of their respective shares; and whether in him or them, it is, so far as this case is concerned, wholly immaterial to; inquire; it being enough that the plaintiff would have had no right in it.

Of course the plaintiff had no right to the possession of the farm after her husband’s death, which would fprm a legal consideration for the giving of the $1000 note.

We are to assume that the parties were aware of their legal rights, for such is the legal presumption; and the *477proof does not disclose any legal right on her part, except to the residue of the personal estate which she was entitled to under the will, and her claim, under the indorsement of December 9th, 1859.

The question then is, whether the paroi proof that the $1000 note was given for the $1000 mentioned in the agreement of December 9th, 1859, or that was included in the claims released, and assigned by the plaintiff, was competent.

There is no doubt that a written agreement, such as that between the plaintiff and defendant, cannot be contradicted and made to include demands which its terms exclude. As a general rule nothing can be added to the subjects ' contracted for, by paroi proof, which extends the contract beyond the subjects specified in it. So too when subjects are specifically stated in the contract, and they are assigned or released, and there is added thereto a general release or assignment of all other claims, demands or property. As a general rule, it will be held that the general words' do not enlarge the scope and effect of the instrument; but that it operates only upon the subjects specifically stated in it. These questions are pretty familiar.

It is also the rule that an assignment or release which is general in its terms, applies to all claims, demands or property, which come within its general language; and this rule has but few if any exceptions.

The language of the clause in question is, “the said Laura agrees to and with said Alfred, and does hereby release and assign to him all claims upon the estate of said Parley Howlett, deceased, which she has, of, in or to the estate, real and personal, of said Parley Howlett, deceased, except the property above named, which she is to have.” And this is all the agreement on her part, except that she will renounce the executorship. There is, therefore, no limitation of the claims assigned and released by her, ex*478cept that they are such as she has against the estate (either real or pers nal) of the deceased.

Now the question is not whether the parties in framing the contract have used words which are apt or most appropriate ; or whether they express correctly their meaning. For when the language is ambiguous, they will he allowed to prove what was intended. Nor is it material that what the parties agreed for, were really claims or demands against the estate ; provided it appears that at the time of making the instrument, and in the instrument itself, they were called and understood to be such. As where a conveyance misdescribes the property intended to be granted or sold, either-as to its location, or by a misdescription of the name of the grantee, the party interested will be allowed to show the misdescription, by proving that the grantor had no land situate in the place stated in the deed, but had just such as the deed described in another place; or by showing that the claimant was the person intended as grantee, devisee or legatee in the instrument in question; and this although the proof is in some respects in direct conflict with the language of the instrument.

It is also a rule of construction, that all the language of the instrument applicable to the question in issue shall have effect, if possible, without doing violence to it. The plaintiff, as I have said, had no legal claim to anything more than the residue of the personal estate; nor does it appear that at or before the 5th of July, 1866, she made any claim for anything else. And yet she assigns and releases to the defendant all her claims upon the estate real and personal, excepting the personal property therein specified.

Now, why release claims upon the real estate if it was not intended to include the f1000 in question. That was all the claim she had, in any way relating to his real estate; and if that claim was not intended, those words were entirely superfluous.

*479The objection to this is, why did they not then specify that claim clearly, so as to leave no doubt of its being intended. But it might as well be asked, why has there ever been a latent ambiguity in a written instrument, where the parties might have, if they chose, expressed clearly their intent. It is enough to say that the words used are general, and the true question is, may they not have been intended to include the $1000 claim, by the language used;, and if they might, without doing violence to the words used, the extraneous evidence may be given, to apply the ambiguous words to their true subject or subjects. I think it was competent to prove what was admitted, in order to aid in the construction of the instrument. That although that claim of $1000 was not strictly in a legal sense a claim upon the estate, yet that as its ultimate liquidation or reimbursement was to come from the proceeds of that farm, the parties treated it as a claim upon the real estate, and had reference to it in the language which they used, and that no contradiction or enlargement of the scope of the release was produced, or any violence done to its language, by showing that in fact the parties intended to include the $1000 claim.

The declarations of the plaintiff, frequently repeated, late in that fall, after the note was paid up, and her subsequent conduct, till a short time before the suit was commenced, strongly corroborate the oral testimony on the part of the defendant, that the intent of the instrument was to convey to him the claim of $1000 against the estate without further payment to her than the payment of the note.

And all this proof I think was competent, under the principles above laid down. *

So far as there was conflict in the paroi evidence, the referee was the proper person to decide it, and there is nothing in the case which would authorize us to reverse such decision. Qu the contrary, the weight of evidence *480appears to be decidedly in favor of the conclusion to which he arrived. And upon the whole case it appears that as between the defendant and plaintiff, the latter has received all to which she was equitably entitled.

The judgment should be affirmed..

Foster, Mullin and Morgan, Justices.]