Facts: A mother and son hired a lawyer to prepare a deed for them. The deed conveyed
to them as “tenants in common with the right of survivorship as at common law.” The
son eventually married and had six children. He predeceased the wife and mother. The
wife filed suit claming that the deed created a tenancy in common and making her thus
eligible for one half rights in the land. The mother argued that there was a right of
survivorship making the tenancy obviously joint. She also argued and presented the
lawyer at a witness claiming the intent of the mother and son was to create a joint
Issue: When two conflicting statements are made in a deed rendering the interests
ambiguous, which one of the conflicting statements controls?
– The prime consideration with any writing is to determine the intention of the
parties executing the instrument. The intention should be ascertained form the
language used in the deed if possible. If the language is uncertain and ambiguous,
oral evidence may be received to show all the attendant circumstances existing at
the time the deed was executed, including the situation of the parties and their
relationship. However, parol contemporaneous evidence is inadmissible to
contradict or very the terms of a valid written instrument because the writing is
the only outward and visible expression of the meaning of the parties, and to
allow it to be varied or contradicted by verbal testimony of what passed at or
before its making, would be to postpone the more certain and reliable mode of
proof, the more precarious and les trustworthy; to prefer the less good to the best
– Where two clauses are irreconcilably repugnant, the first prevails. That rule
however, will only be applied in cases of “rigorous necessity” and when the two
clauses are absolutely incapable of reconciliation