Doe on Demise of Stowe v. Davis, 32 N.C. 431, 10 Ired. 431 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 431, 10 Ired. 431

DOE ON DEMISE OF JOHN STOWE & AL. vs. JONATHAN DAVIS & AL.

A. devised as follows: ‘I give to the lawful heirs of my son E deceased, the plantation whereon I now live,” “I give to my sons C. and D. and their children, the residue of my estate both real and personal,” §-c. Held, that, although the testator had bought a tract of land, adjoining that on which he had previously lived, yet as he cultivated the two as one farm for many years, they were both to be included in the devise to the heirs of B. as "the plantation on which he then lived.”

It is not competent, in the construction of a will, to prove by witnesses, that the teslátor meant a clause in his will to be different from what it was written, or afterwards declared, that the clause, as written, Was different from the purport of it on its face ; though evidence of parcel or not parcel of the thing devised, or any other that serves to fit a thing to the descrip, tion, is admissible.

The case of Bradshaw v. Ellis, 2 Dev. Bat. Eq. cited and approved.

Appeal from the Superior Court of Law of Surry County, at the Fall Term 1849, his Honor Judge Caia>. weu. presiding.

The respective parties claim under the will of Abram Stowe, in which he devised as follows : “I give to my wife the plantation on which Í now live, during her life, one horse.” &c. Then after several gifts of chattels to others, follows this clause : “Fourthly, I give to the lawful heirs ol my son, Abram, deceased, the plantation whereon I now live.” “Seventliljr, I give unto my sons John and Joel, and their children, the residue of my estate, both land and negroes and personal property.” The will contained dispositions of personalty, not material to this controversy.

The question on the trial was, whether the premises passed to the heirs of Abram, under the gift in the fourth clause of “the plantation,” whereon the devisor lived at the making of the will, or to the devisees in the seventh clause of the residue of the land ; the latter of whom are the lessors of the plaintiff. Evidence was given, that, for some years before the date of the will, the testator owned four tracts of land, which he had purchased from different persons at different times. He lived on one of the tracts, and had a considerable farm on it, which he occupied himself. He then bought an adjoining tract from one Brown, whereon there was no building, but a field cleared, containing about forty acres, which laid immediately adjoining the cleared land, which the testator had before cultivated as aforesaid, and there was a fence near the line between them. The testator, after-wards, during bis life cultivated, asoné farm, the cleared land on his original tract and that on the tract purchased from Brown ; ail being enclosed by the same fence, but, still, the fence on the line between the two tracts was kept up, running from the river on which the land was situate, back to the said outside fence. After the purchase from Brown, the land so bought was called by the testator “the Brown place,” and that, which he before owned, he called “the home place.” The other two tracts he called, the one, “the Gentry place” and the other, “the Oliver place,” after the' persons from whom he purchased them. The action is for the Jract bought from Brown, and upon that evidence a verdict was rendered for the plaintiff, subject to the opinion of the Court upon the question reserved, whether, upon the facts stated, the lessors of the plaintiff were entitled to the premises, or not. Judgment was afterwards given for the plaintiffs, and the defendants appealed.

Boyden, for the plaintiffs.

No counsel for the defendants.

Ruffin, C. J.

The Court holds, that the premises passed to the widow for life, with remainder to the heirs of Abraham, under the description of “the plantation whereon I now live.” If the case stood upon the words of the will alone, without any evidence respecting the two tracts of land, upon parts of both of which was situate the portion under culture by the testator, there could be no doubt. “The plantation on which the owner lives” would certainly be understood generally to be all the contiguous land of the proprietor, which he resided on and made one parcel, by using different portions of it for his own culture for a series of years, although it may originally have constituted several tracts, and although some parts of the body, and of the several tracts, which made up the body, may remain uncultivated and uncleared. The term “plantation” has several significations ;• but a man’s plantation at such a place is understood by the bulk of people here to be the land he owns at that place, whereof.he is cultivating more or less in annual crops. More properly, it designates the place planted ; but in wills it is generally used to express more than the enclosed and cultivated fields, and to take in the necessary wood land, and, indeed, commonly all the land forming the parcel or parcels under culture as one farm, or even what is worked by one set of hands. Bradshaw v. Ellis, 2 Dev. & Bat. Eq. 20, was a case of the latter kind, in which, upon the whole will, the Court held, that ‘ my plantation” carried two tracts, which were half a mile apart, as they were both cultivated together by the tes. tator as one farm. This construction is not at all varied by any of the facts proved. There is no attempt to establish, that any particular part of the contiguous land was known and called the testator’s plantation, separate from some other of the parts under culture. On the contrary the proof was merely, that different parts of the plantation were called by the distinct names of “the Brown place” and “Home place.” But that was nothing more than a mode of designating the different fields, which make up the farm ; which, instead of “farm,” the testator calls by the term “plantation,” which is the more familiar to the mass of our citizens. If the devise had been of the “Home place,” or “the Brown place,” then those, particular well known names would have controlled more general words of description But the gift is not by the name of either'of the parcels, but by a general one, “plantation,” which in fact embraced both parcels. As all the land, which was actually in culture, is em« braced by the term “plantation,” in its strictest sense, that must, of course, pass. But the devise cannot be restricted to that. For, of necessity, it is to be supposed the testator meant to give with it the contiguous wood land, or, at least, as much of it as should be requisite for a supply of timber and wood ; and, as he has pointed out no mode of ascertaining how much he deemed requisite, or what particular part he intended, the Court cannot say, that less than the whole was given. For these reasons the Court deems the judgment erroneous.

As there must be a venire de novo, it will perhaps facilitate the next trial to dispose of a question of evidence, stated in the record. Besides the evidence given, the plaintiff offered to prove, that, when about to make his will and while making it, the testator said he wished to give “the home plantation” to his wife and Abraham’s heirs, and the "Brown place” to Joel and John and their children ; and that, after the will was made, the testator showed a person the dividing line between those two places, and said, that he had given the former to his wife and Abraham’s heirs, and the latter to John and Joel and their children. Upon objection the Court rejected the evidence; and, we think, properly. Evidence of parcel or not parcel is competent, or any other that serves to fit a thing to the description. But as we had occasion.to say in the late case of Barnes v. Simms, it is not compe. tent, upon a question of construction, to prove by witnesses, that a testator meant a clause in his wdll to be different from what it was written, or afterwards declared that the meaning of the clause, as written, was different from the purport of it upon its face. That would be to control the writing, or, rather, to make a new will by parol. The evidence was, therefore, inadmissible. But on the first ground the judgment must be reversed, and a venire de novo awarded.

Per Curiam.

Judgment reversed and a venire de novo.