Hatch v. Hatch, 3 N.C. 32, 2 Hayw. 32 (1798)

March 1798 · North Carolina Superior Court

3 N.C. 32, 2 Hayw. 32

Hatch vs. Hatch.

Tj'JECTMENT. Upon the trial the case appeared to be-—• that Lemuel Hatch, the father of the plaintiff and defendant, being seized of the premises in.question, devised to the defendant, a tract of land called the'Beaver Dam, held by patent of such a dace, and he devised to the plaintiff a piece of land purchased of Foy, containing- acres. The land purchased of Foy was comprised of four several tracts, and one of them was a tract-which formerly was apart of the Beaver Dam tract, and had been sold hy Lemuel and repurchased with the other three tracts, and this was the land now in dispute.

Evidence was allowed to be given to shew what was meant by the Beaver Dam, and that proved that the whole tract formerly was called the Beaver Dam, but that alter the part in question had been sold to Foy and before be had recqnveyed, the residue had still been called the Beaver Dam tract, and particularly that Lemuel the devisor had made a|will in the interval between-the sale and re-purchase, in which he called the residue the Beaver Dam tract. The receiving of this evidence was greatly opposed by the counsel on the other side, who insisted upon the well known rule of suffering no evidence to explain or controul what appears upon the face of a deed or will.

But e contra it was argued, that there is no ambiguity upon the face of this will, no man upon reading the will would know that those two clauses could possibly interfere ; that cafanot be. known until it appears upon evidence that the land in question, was formerly a part of the tract called the Beaver dam; then and not before arises the doubt which is the principal matter of difficulty in this cause — whether under the description of the Beaver Dam tract, he meant to give all the land that was formerly comprised under that description : This doubt is produced by evidence given On the case, not by reading the will, and therefore it should be solved by evidence; the rule means that no addition shall be made to a will by parol testimony, nor the words of it explained in a different sense from what they naturally import, nor a certain meaning given to that which in itself has no meaning, Bull. N. P. 297, 298 : The evidence now offered does not operate any of these things ; it neither adds to, contracts, nor gives meaning to any clause in the will, it only means to identify that which is described in the will, 5 Re. 68 : and why is the subject matter of a devise described at all, either in a deed or will, but that it may be ascertained by evidence agreeing with the description. Suppose a man gives the plantation whereon I now live, or on lease to A, or that I bought of B, can it be otherwise ascertained what land is meant than by calling evidence to prove that the land in question was or was not that on which the divisor lived or which he bought of B, or was in lease to A; there are no other means of ascertaining itj this is all we want in the present case.

Per curiam

When the ambiguity does not appear upon the face of the will, but is bred by evidence, it may be done away by evidence ; an averment may ascertain the subject matter of a devise, but not add to the will or take from it, nor in any wise controul its meaning, therefore the evidence offered in the present case is proper j and it was received. The land in qu> sti-on was re-conveyed to Lemuel by Foy .about two months after the making of this will; he had purchased it before making the will, but did not lake a conveyance till after ; but sometime after the conveyence he made a codicil and appointed another executor : Thereupon the defeadant’s counsel argued with great earnestness, that this will át the time of its execution, did not convey the lands purchased of Foy to the plaintiff, the divisor not then having them to divise, and as to the codicil, whoever may choose to say the contrary, the books say it is not a republication.

Harris e contra. — Any circumstance after the execution of a will which shews the divisors intent that it may be considered as his will, may be taken as a republication, and particularly the making of a codicil, for that amounts to a declaration that upon revising his will he is' satisfied With every part thereof except that which is regulated by the codicil; and he cited 5 Ba. Ah. 615 and the cases there cited and many other books.

Fe* zu'ñcm. — The Iaw„ís undoubted!}? as laid dow* by Mr, iííarrb. Any circumstance whatever plainly indicative of his satisfaction with the paper as bis will at a particular period, may be taken to.be'a republication from that time, and pauiculaily a ccdocil ie so considered. The court then stated to the jury the eviá..’Hce which had been given, and said the question depends' upon what is meant by the Beaver Dam ; this may perhaps be explained by the words of the will itself.

They are in the .one case the tiact called the Beaver Dam, held by patent; in'the other, a piece of land purchased of Foy. The different modes by which he had acquired these lands seem to have been mentioned by the devisor lor the purpose of distinguishing the lauds themselves; the residue'of the Beaver Dan>. was never purchased of Foy, and the land purchased oí Foy he held immediately by a'deed from him, and not under a patent as he htdd the other; this seems to he decisive; but in addition to this, he always considered and called the residue oí the tract, after pari was sold to Foy, the Beaver Dam, aod devised it in a former will by that name.

There is also another point in this ease : — The defendant after tbe death of Lemuel acted as the plaintiff’s guardian, took possession of the 1 md in question ag guardian and rented it out from year to year till the plaintiff came of age; this possession will have exactly the same effect, as if another person had been guardian and had done the same acts; and such a possession would have given title to the plaintiff after seven years, if it were accompanied with all other legal reotuisites; but here the plaintiff had no colour of title to the land in question unless it be included in the devise to him ; there is no need to resort to the aid of a seven years possess! on. . . .

There was a verdict for the plaintiff and a new trial moved for, but the court refused io make a rule.