Myers v. Myers
Myers v. Myers
Opinion of the Court
Opinion by
What, land passed to the defendant under the will of Ben
There can be no question that oral evidence was admissible to identify the subject-matter of the devise; for this purpose it was competent to show what land had been included in the curtilage of the house No. 612 North Queen street, and what monuments had been established upon the ground by the decedent in his lifetime. The following facts were undisputed,viz: in 1891, the testator entered into articles of agreement for the purchase of an unimproved lot extending through from North Queen street to Market street; he built a two-story dwelling house fronting on North Queen street, and upon the Market street end of the lot he erected a two-story brick building to be used as a carpenter shop. Upon the completion of the buildings he occupied the dwelling as his residence and used the carpenter shop as his place of business. While the property was in this condition, on March 29, 1892, those from whom he had purchased conveyed to him the legal title, describing the property in these words.: “All that certain two story brick dwelling house, with a two-story back building, and lot or piece of ground thereto belonging. Situate No. 612 on the west side of North
Here was a devise of a property which for years had been used by the testator as his residence, and, in the same sentence of the will, a bequest of the personal property which the residence contained; the lot which had been used in connection with the dwelling was enclosed by a fence and adjacent buildings. The house No. 611 North Market street had been devoted by the testator to other purposes, and he had set apart a lot of ground to be used in connection with the house No. 611, North Market street by the tenants who occupied that property. If, instead of running through to Market street, the original purchase of the testator had only been half as deep, but contained double the frontage on North Queen street, and the carpenter shop had been erected on the additional frontage on North Queen street, and had been subsequently changed into a dwelling house, No. 614 North Queen street, and a fence erected dividing the lot longitudinally, precisely the same question would have arisen. In that case, however, it would scarcely be even contended that a devise of 612 North Queen street would include No. 614, upon the same street. The property No. 612 North Queen street, as it had been used by the testator, and by him
The intention of the testator is to be determined from the words written in his will. If his wishes with regard to the disposition of his property, as thus expressed, can be applied to the existing condition of that property, the result must be accepted. It is not competent to show by declarations of the testator made at the execution of his will or subsequently, that he intended a devise to include something that is excluded by the terms of the will as executed. When the subject-matter of this devise came to be ascertained there was, under the existing conditions of the testator’s property and the boundaries marked upon the ground, no doubt or uncertainty calling for explanatory proof. The offer of the defendant to prove what the testator said at the execution of the will was properly excluded. All the assignments of error must be determined against the appellant, upon principles so well recognized that discussion is unnecessary : Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Willard’s Estate, 68 Pa. 327; Best v. Hammond, 55 Pa. 410; Wursthoff v. Dracourt, 3 Watts, 243; Asay v. Hoover, 5 Pa. 21; Root’s Estate, 187 Pa. 118.
The rulings of the learned judge of the court below were free from error.
The judgment is affirmed.
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- Devise — Will—Oral evidence to identify subject-matter. Where it is uncertain what land is included in a devise, oral evidence is admissible to identify the subject-matter of the devise. The intention of a testator is to be determined from the words written in his will. If his wishes with regard to the disposition of his property, as thus expressed, can be applied to the existing conditions of that property, the result must be accepted. It is not competent to show by declarations of the testator made at the execution of his will or subsequently, that he intended a devise to include something that is excluded by the terms of the will as executed. Where testator devises a property, describing it by a number of a street, “ and also all the personal property contained therein,” and it appears that this property was the residence of testator at the time of his death, the devise cannot be construed to include more than the dwelling house and its immediate curtilage, by evidence which in effect was, that many years prior to the making of the will and of defendant’s death, which were only a few days apart, defendant bought a lot which extended from one street to another ; that he built his dwelling on one end of the lot, and a carpenter shop on the other end; that subsequently he remodeled the carpenter shop into a dwelling house, which was then given a number on the back street, and was rented to tenants; that shortly thereafter testator caused to be erected across the lot a substantial board fence without any gate or opening in it, and that the two houses with the lots respectively appurtenant, continued to be used in the manner described until the death of the testator.