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Zachary
Zachary, Attorney
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In rules of construction regarding ambiguities, which controls,

Resolved Question:

In rules of construction regarding ambiguities, which controls, the written word "forty" or (41)?
Submitted: 2 years ago.
Category: Legal
Expert:  Zachary replied 2 years ago.

Zachary D. Norris :

Hi,

Zachary D. Norris :

Generally, the numeral will control.

Zachary D. Norris :

I'm going to research the case law quickly to see if I can find a case on point.

Zachary D. Norris :

Please stand by.

Zachary D. Norris :

it is generally an argument of intent, and the argument goes that the numeral is a clearer representation of intent. However, in some states the rule is that where there are conflicting ambiguities such as this, the entire clause is taken out unless the rest of the writing can clarify it.

Zachary D. Norris :

Are you there?

Expert:  Zachary replied 2 years ago.
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Customer: replied 2 years ago.

INDIANA

Expert:  Zachary replied 2 years ago.
I understand that you are in Indiana and my answer pertains to Indiana law.

The case law on ambiguities in a will is as follows:

the intention of a testator must in all cases govern the construction of a will, unless in violation of some rule of law. To ascertain such intention, the court may hear evidence of [***10] the circumstances, situation, and surroundings of the testator when the will was made, and the state and description of his property. 2 Underhill, Law of Wills, §§ 909-911, 914; Wigram, Wills (2d Am. ed.), 56, 161; Schouler, Wills, § 579; 1 Jarman, Wills (5th Am. ed.), 733-762; Page, Wills, §§ 816, 817; Whiteman v. Whiteman, 152 Ind. 263, 273, 274, 53 N.E. 225; Patch v. White, 117 U.S. 210, 217,XXXXX 617, 29 L. Ed. 860; Black v. Richards, 95 Ind. 184, 189-191; Daugherty v. Rogers, 119 Ind. 254, 258-261, 20 N.E. 779; Dennis v. Holsapple, 148 Ind. 297,XXXXX 526, 47 N.E. 631; Price v. Price, 89 Ind. 90, 91. HN5If by thus putting itself in the testator's place, the court is able to understand and apply the language of the will, it may give effect to the same although containing errors or repugnancies, so far as the intention of the testator can be determined, and will pronounce judgment with such repugnancies removed or errors corrected. It is well settled that HN6when a latent ambiguity is disclosed by extrinsic evidence, it may be removed by extrinsic evidence. Whiteman v. Whiteman, supra; Patch v. White, supra.

[*540] [***11] HN7It is true that extrinsic evidence will not be resorted to for the purpose of changing or varying the words of a will, but courts for a long period of years have felt compelled to deal with descriptions in such a manner as to reach the intent of the testator, when that seemed practicable, and by construction and by the admission of oral evidence to remove latent ambiguities. It is well established that however many errors there may be in a description, either of the devisee or the subject of the devise, it will not avoid the bequest if after rejecting the errors or false words enough remains to show with reasonable certainty what was intended when considered from the position of the testator. 1 Redfield, Wills (4th ed.), 580 et seq.; 2 Underhill, Law of Wills, §§ 909-914; O'Hara, Wills, 369, 374; Wigram, Wills (2d Am. ed.), 52-54, 144-147; Page, Wills, §§ 473, 487, 819; 3 Albany L. J. 263-267; Trustees, etc., v. Peaslee, 15 N.H. 317; Winkley v. Kaime, 32 N.H. 268; Allen v. Lyons, 2 Wash. C. C. 475, 1 F. Cas. 486; Patch v. White, 117 U.S. 210, 29 L. Ed. 860,XXXXX 617; Roman Catholic Orphan Asylum v. Emmons, 3 Brad. Surr. 144; [***12] Cleveland v. Carson, 37 N.J. Eq. 377, 18 Cent. L.J. 68, and note pp. 69-71; Willard v. Darrah, 168 Mo. 660, 68 S.W. 1023; Judge Redfield's note to Kurtz v. Hibner, 10 Am. Law Reg. N. S. 97-101; Riggs v. Myers, 20 Mo. 239; Gaston's Estate, 188 Pa. 374, 41 A. 529; Black v. Richards, supra; Jackson v. Hoover, 26 Ind. 511; Whiteman v. Whiteman, supra; Miller v. Coulter, 156 Ind. 290, 293, 59 N.E. 853; [**294] Groves v. Culph, 132 Ind. 186, 31 N.E. 569; Skinner v. Harrison Tp., 116 Ind. 139, 18 N.E. 529; Elliott v. Elliott, 117 Ind. 380,XXXXX 54, 20 N.E. 264; Chappell v. Missionary Soc., etc., 3 Ind. App. 356,XXXXX 276, 29 N.E. 924.

So the question in resolving this ambiguity is whether there is any statement in the will which would tell us which number is XXXXX For instance, if it is 40%, then there should be a corresponding 60% devise to someone else. If it is 45%, then there should be a 55% devise to someone else.

If there isn't any language in the will which would otherwise clarify, the next thing to do is to look for extrinsic evidence. Can anyone testify as to which number is XXXXX? This would be your next step in clarifying the ambiguity.

Please let me know if you need further information.

ZDN
Customer: replied 2 years ago.

Three heirs devised the following shares:


 


Forty percent (45%), Forty percent (45%) and Twenty percent (10%).


 


Nothing in will to clarify intent.

Expert:  Zachary replied 2 years ago.
Wow, that is a real conundrum.

OK. After more searching, I've found the definitive answer. It's actually backwards from what I first had:

The Indiana Supreme Court says:

It has long been the general rule, which pertains to bills and notes, that where the amount stated in figures, differs from the amount in words in the body of the instrument, the written words control. Story, Promissory Notes § 21; Bradshaw v. Bradbury (1876), 64 Mo. 334, 336.

Hunt v. State, 199 Ind. 550, 553 (Ind. 1927),

Thanks for bearing with me.

Best of luck,
ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3928
Experience: Lead trial/International commercial attorney licensed 11 yrs
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