Warner v. Lessee, 21 Md. 264 (Md.)

Bartol, J.,

delivered the opinion of this Court:

The decision of this case depends upon the true construction of the following clause in the last will of George Warner, late of Baltimore City:

The testator died in 1829. The will bears date March 3rd, 1827, with a codicil dated June 20th, 1829, and was admitted to probate in July 1829,

The lessor of the plaintiff is grandson of the testator, and one of the devisees named in the above clause of his will, under which he claims the property in controversy in this case. The defendant (now appellant) claims as residuary legatee under the former will; and the question between the parties is, what extent of ground passed by the devise?

By agreement of counsel, a warrant of resurvey was issued to lay down the land claimed, and such other lands or lots as either party might wish located; but as both claimed under the same testator, no location as to title prior to his need be made. It was also agreed that duly certified extracts of deeds, leases, &c., and any original deeds and plats in the possession of the testator at the time of his death, and sale-plats by which he purchased land, might be used for the purpose of location, and as evidence at the trial, in the place of more formal papers.

The warrant of resurvey was issued, executed and returned with plats, locations and explanations under instructions of the respective parties. Defence was taken for all within the plaintiff’s claim and pretensions, as delineated on the plats; and on the trial in the Court below, a verdict was rendered in favor of the plaintiff for the ground claimed, with nominal damages.

The plaintiff offered two prayers, and the defendant one prayer. The plaintiff's first prayer was granted by consent; the defendant objected to the second prayer; but the Court below granted that also, and rejected the defendant’s prayer; and the only exception taken below, and brought up by this appeal, was taken to tho granting of Liu; plaintiff’s second prayer, and the rejection of the defendant's prayer. These prayers will be found ante, pages 264 and 265, and will be more particularly noticed hereafter.

The case has been argued with very great care and ability, and in expressing our judgment upon the material questions involved, we are much aided by the clear, careful and elaborate exposition of the case furnished by the printed briefs and oral arguments of counsel; and have found less difficulty in reaching a satisfactory conclusion, than in expressing in a brief and intelligible manner the grounds upon which that conclusion is based. This grows out of the great number and variety of facts embraced in tho bill of exceptions, and the number of locations presented by the plats, all of them tending to illustrate the meaning of the words of the will, and designed to show tho real intent of the testator in the devise in question — that is, tho sense in which the testator used the word “lot” in the devise — upon which the whole controversy turns. The appellant contending that the word must be construed to mean a parcel of ground marked and defined on the plat of “Ridgely’s Addition” to Baltimore town, as the same was made and adopted by the public authorities, bounded and circumscribed by streets, lanes and alleys, as located on the plat, and designated by numbers, commonly known as a building lot. That this is the legal construction of the word, and that no evidence can be introduced to show that the testator used it in any other sense. While the appellee contends that it is competent to show by testimony, derived from other parts of tho will, and by extrinsic evidence, explaining the sense in which the testator used tho word, lot, that it embraced a,

larger parcel of ground, and was .not intended to refer to' the small subdivisions designated as town lots on the plat of “Ridgely’s Addition to Baltimore Town.”

We think it is clear upon established precedents and authority, that it was competent for the appellee to introduce, for this purpose, the evidence contained in the bill of exceptions.

Much learning and ability have been expended, both by Courts and elementary writers, in considering the question of resorting to extrinsic evidence for aid in the interpretation of wills, and the rules and principles governing this interesting branch of the law, may now be considered as-defined and established with as much precision as the subject is capable of. They are very clearly stated in the excellent work of Mr. Wigram, published in the 2nd vol. of the Library of Law and Equity, and also in the 1st vol. of Greenleaf’s Ev., ch. 15. For the rules more particularly applicable to this case, we refer to the 1st, 5th and 7th propositions of Wigram, to 1 Greenleaf, secs. 286 to 289 inclusive; and to the very able and learned opinion of Lord Abinger, in Hiscocks vs. Hiscocks, 5 Mees. & Wels., 363, in which the previous decisions are elaborately examined, and the true rules and principles of the law are stated with-great clearness and precision.

For the purposes of this case, however, it is sufficient to refer to the decision of the Court of Appeals in Walston’s Lessee vs. White, 5 Md. Rep., 297, where the rule is thus succinctly stated: “Where the language of the testator is plain and unambiguous, such language must govern, and therefore extrinsic evidence is inadmissible to show that he meant something different'from what his language imports; but any evidence is admissible, which, in its nature and effect simply explains what the testator has written; in other words, the question in expounding a will, is not what the testator meant, as distinguished from what his words express; but simply what is the meaning of his words. And extrinsic evidence, in aid of the exposition of his will, must

be admissible or inadmissible with reference to its bearing upon the issue which this question raises.” Wigram’s Rules of Law, 9.

In the same ease the Court of Appeals recognise and adopt the rule stated by Mr. Wigram in his 5th proposition. (See 5 Md. Rep., 305.) Under that rule it is clear, that the evidence contained in the exception before us was properly admitted for the purpose of determining “the subject of disposition, or the quantity of interest intended to be given by the will,” or to identify the thing intended by the testator to pass under the devise of his “two lots of ground lying on the east and west side of Leadenhall street.”

This evidence was submitted to the jury by the second prayer of the plaintiff, and they found by their verdict, that the testator’s lot of ground lying on the west side of Leadenhall street given by the will, embraced all that parcel of ground claimed in the plaintiff’s pretensions, and located on the plats, extending from Leadenhall street, to Sharp street, (formerly Chestnut street.)

One of the objections to the second prayer, urged by the appellant in this Court, was that it erroneously submitted to the jury a question of law, which it was within the province and duty of the Court to decide. It is the general rule that the construction of a will, or any other written paper, is for the Court and not the jury, and in conformity with this rule, the Superior Court properly instructed the jury in the first prayer, which was granted by consent, that, by the true construction of the devise, the devisees took all the testator’s lot on the west side of Leadenhall street.

Then the question arose, what was the true location and extent of the lot devised ? or in what sense was the word lot used in the will ? Whether this was a question for the Court or the jury, is not very important in this case; because an examination of the evidence, adduced in aid of the construction of the will, has brought ns to the same con

elusion reached by the jury. And even if the appellant were correct in the view, that the question was for the Court, and not the jury, still entertaining the oi-únion already expressed, this would be no cause for reversal, under the well settled rule of practice, which was distinctly recognised by this Court in the case of Hanson vs. Campbell’s Lessee, 20 Md. Rep., 223, decided at the last June term.

But, in our opinion, this question as it arose in this case, was properly submitted to the jury. In support of this view we refer to the case of Wooster vs. Butler, 13 Con., 309, where the point was carefully examined, and decided in accordance with what we consider the weight of authority. That case involved the construction of a grant, and the Court say: “That the construction of written documents is a matter of law, and is not in ordinary cases to be submitted to the jury, as a matter of fact, is true; but where the doubt is produced by the existence of collateral and extrinsic facts, not appearing upon the instrument, its consideration ceases to be a matter of mere legal construction, and the intention of the parties is to be sought for, by a recurrence to the state of facts as they existed when the instrument was made, and to which the parties are to be presumed to have reference. The ambiguity in such case, is a latent one, which may he explained by parol evidence and submitted to the jury.”

See also the cases of Goodtitle vs. Southern, 1 M. & S., 299, 301; Dorsey vs. Hammond, 1 H. & J., 201, and Walston vs. White, 5 Md. Rep., 305.

The second prayer of the plaintiff having been properly granted, it follows, that there was no error in refusing the defendant’s prayer; which asked the Court to withdraw from the jury the determination of the question as to the true intent and meaning’ of the word “lot,” as used in the will, and to pass upon that question exclusively upon the consideration of the facts enumerated in the prayer; leaving out of view a large part of the testimony, which was

pertinent and material to the right determination of the question.

(Decided April 14th, 1864.)

Judgment affirmed.