Burke v. Lee & Wife

Citations

• 76 Va. 386
• 1882 Va. LEXIS 43

Syllabus

<p>1. Wills—Construction.—All questions'touching the operation, construction and effect of wills and instruments of writing, are for the determination of the court, and not for the jury.</p> <p>2. Idem—Devise, parol proof.—Party seeking to maintain a devise, must show it by the will itself, and no defects in the language used can be supplied by parol proof. The true inquiry is, not what the testator meant to express, but what the words used do express. If a subject be found which satisfies the disposition of the property as contained in the will, parol evidence cannot be admitted to show that a different subject was meant.</p> <p>3. Idem;—Latent ambiguity.—The only exception to the rule excluding parol testimony as to the intention of the testator is in cases of latent ambiguity.</p> <p>4. Idem—Case at bar.—Two devisees claim a lot in A, under same will, wherein there is no pretence of latent ambiguity. Nevertheless, parol evidence had been introduced to explain the supposed intention of testatrix ; and plaintiff asked the court to instruct the jury :</p> <p>First. That if from the evidence they believed the testatrix intended to give the lot to plaintiff, they must find for plaintiff.</p> <p>Second. That in considering the intention, they are authorized to take into view the situation and circumstances of the testatrix as to the property, the possession and occupation of the plaintiff, and other intrinsic circumstances which may tend to explain the ambiguity, if any, which exists in the will.</p> <p>Which the court refused; but on motion of defendants instructed the jury that, conceding all the parol testimony to be true, and giving it its full legal effect under the will of testatrix, the property was devised to defendants.</p> <p>Held :</p> <p>The instructions asked for by plaintiff were both erroneous. There was no error in giving the instruction asked for by the defendants.</p>