Mitchell v. Walker
Court of Appeals of Kentucky
Case 10. APPEAL FROM MADISON CIRCUIT. Ord. Pet. Argued — 1. That Stephen Walker, the testator, did not own the land in controversy, and consequently did not intend to devise it to his wife, and that it did not pass by his will. (Noland vs. Johnson, 5 J. J. Marshall, 351.) 2. It is well settled that a latent ambiguity as to the person who shall take under a will, or as to the property embraced by the devise, may be explained by extrinsic parol proof.
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Case 10. APPEAL FROM MADISON CIRCUIT. Ord. Pet. Argued — 1. That Stephen Walker, the testator, did not own the land in controversy, and consequently did not intend to devise it to his wife, and that it did not pass by his will. (Noland vs. Johnson, 5 J. J. Marshall, 351.) 2. It is well settled that a latent ambiguity as to the person who shall take under a will, or as to the property embraced by the devise, may be explained by extrinsic parol proof. In Starki.e’s Ev., vol. 3, page 1020, it is said : “In the next case parol extrinsic evidence is admissible generally to give effect to a written…
1Opinion of the CourtChief Justice Marshall
The only real question in this case is, whether the title shown to have been in Stephen Walker at his death in 1817, and therefore subject to be disposed of *64by bis will, was in fact so disposed of by the devise in which, giving to his wife various articles and species of property during her life, he uses, in the midst of the enumeration, the words “and also my land and mansion house.” He says afterwards, “if she should marry, I wish her to have all the above mentioned property that is devised to her except the land, of which I wish her to have only one-third, including the mansion house.”…
2Cases cited1 opinion
- Wells v. Bowling's HeirsCourt of Appeals of Kentucky · 1834
3Cited by1 opinion
- Richmond & Lancaster Turnpike Co. v. Madison County Fiscal CourtCourt of Appeals of Kentucky · 1902