Blodgett, J.
¶1
The case presented by the facts is plainly one of a latent ambiguity arising from the misdescription of the name of a legatee; hence the evidence taken at the trial was properly received to remove the ambiguity. Indeed, it is familiar law, and sustained by nearly all the authorities, that a misnomer or misdescription of the legatee or devisee will not invalidate the provision or defeat the testator’s intention, if, either from the will itself or evidence
dehors
the will, the object of the testator’s bounty can be ascertained; nor is there any principle better settled than that a latent ambiguity in any written instrument is open to explanation and removal by parol evidence. The decisions in other jurisdictions involving these general principles are too numerous for citation; and for recent confirmatory decisions in this state, see
Society
v.
Hatch 48 N. H. 393, 397 ,
Bartlett
v.
Remington 59 N. H. 364, 365 , and
Tilton
v.
Society 60 N. H. 377 —384.
¶2
The order made at the trial term1 is affirmed.
¶3
Exceptions overruled.
Stanley, J., did not sit; the others concurred.
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Case posture Posture BILL IN EQUITY, by the executors of the will of James Boyd, late of Antrim, deceased, praying advice and direction as to the proper construction of the will of the deceased and their duty as executors.
The will is dated April 2, 1880. The testator died April 18, 1880. In the will the testator gave certain annuities to his nephews and nieces, and certain specific sums to certain charitable institutions. Among other things the will contains the following bequests: I give and bequeath unto the Meredith Institution,
located at Meredith, N.H., the sum of five hundred dollars, one hundred dollars of said sum to be paid in one year after my decease, and one hundred dollars to be paid annually after said first year, till said five hundred dollars has all been paid, said sum to be used for the purpose of educating young men for the ministry; but if said institution shall cease to exist before the whole of said five hundred dollars has been paid, then the balance of said five hundred dollars, not already paid, shall be withheld by my trustees and used as a part of the residuary of my property. The following is the residuary clause: I give, bequeath and devise all the rest, residue and remainder of any property, of whatever description and wheresoever situate, unto the New Hampshire Bible Society, The Presbyterian Board of Foreign Missions, The Presbyterian Board of Home Missions, The Presbyterian Committee of Missions for Freedmen, The Meredith Institution and the Orphans' Home, to be divided equally between them.
Facts found by the court. The Kimball Union Academy, located at the village of Meriden in Plainfield, in the county of Sullivan, claims the specific and residuary bequests to the Meredith Institution. The heirs-at-law of the testator claim that this bequest is void, and that these bequests to the Meredith Institution should be divided among them. All the legatees under the will and the heirs-at-law were made parties. None of the legatees, except such as were heirs-at-law, appeared to contest the claim of the academy.
Subject to exception by the heirs, the court admitted the charter of the academy. Among other provisions it contains the following: Whereas, Charles Marsh . . . have represented that it is in contemplation to establish at Plainfield, in this state, a seminary, designed to assist in the education of poor and pious young men for the gospel ministry and also to make a provision for the education of such others as may be admitted upon terms to pay a reasonable sum for their tuition.
SECTION 1. Be it enacted, c., That there may be established at such place within the town of Plainfield, in the county of Cheshire, in this state, as the trustees hereinafter named shall judge to be most suitable, a Seminary for the purpose of assisting in the education of poor and pious young men for the gospel ministry and such others of sufficient ability who may be admitted by the trustees, subject to pay for their tuition, to be denominated the Union Academy, in which may be taught all branches of education necessary for preparing youth for entering any of the three lower classes in the colleges in the United States.
SECTION 5. And be it further enacted, That the trustees and instructors of the Union Academy shall be professors of the Christian religion and shall each be a regular member of some Congregational or Presbyterian church.
Subject to the same exception, the court admitted evidence tending to show that the deceased was a member of the Presbyterian church in Antrim for many years; that he was a deacon of that church for twenty or twenty-five years; that a cousin of his, with whom he was on terms of intimacy, was a teacher in the academy from 1840 to 1855, and from 1869 to 1873; that this cousin visited the testator as often as once a year, and talked with him about the academy; that the testator frequently had the catalogues of the academy; that two young men who lived in Antrim, one of them in his family for a time, and the other, a son of a person who was a long time a servant of the testator, fitted for college there; that a nephew of the testator was fitted for college there; that other relatives of the testator also attended school there; that that was the school which attracted many scholars from Antrim; that the testator was very intimate with Rev. John M. Whiton, for forty-four years Presbyterian minister at Antrim; that his son-in-law, with whom the testator was well acquainted, was, for many years, principal of the academy; that Mr. Whiton had two granddaughters educated there, of which fact the testator well knew; that in 1875 the matter of a bequest to the academy was urged upon the attention of the testator, and that in 1876 and 1877 it was feared that the academy must fail from want of funds, and there was talk of changing its location, which was well known to the testator when he executed his will.
Smith, one of the plaintiffs, subject to exception by the heirs testified that he drew the will in question, and also a prior will in; 1877; that both contained the bequest in question; that on both occasions the testator gave as a reason for this bequest that he had relatives who had attended school there, and a relative who had been a teacher there, and there were others who had attended school there from Antrim; that the testator gave him minutes from which to draw the will; that the p]ace was left out of the minutes, being stated as for the Meredith Institution, and, in reply to a question by the witness, the testator gave the place where located as Meredith, N.H. There is no institution in Meredith, N.H., capable of taking the bequests in question, nor any there or elsewhere, so far as appeared on the trial, except the Kimball Union Academy, which claims to be the intended object of those bequests.
By the charter of the academy the trustees were empowered once to alter the name of the Union Academy by prefixing thereto the name of the principal donor; and, in accordance with this authority, they prefixed the name Kimball, for the reason that Daniel Kimball, of Plainfield, N.H., by his will, made September 7, 1816, gave to the academy a large bequest as a permanent fund, the larger portion of the interest thereon to be appropriated for the instruction of pious young men for the ministry. A copy of the will of Daniel Kimball was received in evidence, subject to exception by the heirs.
On the foregoing evidence the court find that the testator had in mind Kimball Union Academy when he executed his will, and intended the bequests therein to the Meredith Institution located at Meredith, N.H., for Kimball Union Academy located at the village of Meriden, in Plainfield, in the county of Sullivan, and the court order that the plaintiffs should be advised accordingly. Source: CourtListener
