The opinion
Dissenting Opinion.
Berkshire, J. —
I am unable to agree with the conclusion reached by the majority of the court. To me the conclusion seems to be unsound on principle, and contrary to a long line of decisions by this court, beginning with its organization and coming down to the present time. Feeling the importance of the questions involved, I regret that I have not the time to express my views at length.
*267 The action was brought upon certain promissory notes executed by the appellee to the decedent in his lifetime. The theory of the defence-is not that the notes were executed without consideration, and merely as the evidence of an advancement, so as to bring it within the case of Peabody v. Peabody, 59 Ind. 556 , nor is it the theory of the defence that the notes were surrendered and the indebtedness released and forgiven, so as to bring it within the case of Sherman v. Sherman, 3 Ind. 337 . The theory of the defence is that the decedent, who died testate, by his last will and testament bequeathed the notes in suit and the indebtedness which they evidenced to the appellee. The only item in the will under which this claim is made is item No. 10. It reads thus: “ I give, devise and bequeath to" Philo Rogers, the young man I raised, in addition to what I have already given him, the further sum of five hundred dollars.”
The language is not only not ambiguous, but it is clear and unequivocal. What is it that is given to the appellee ? The sum of five hundred dollars. In addition to what is five hundred dollars given ? “In addition to what I have already given him.” The will only purports to give the appellee five hundred dollars. It is not claimed that the language has the effect to give him more. What kind of a gift is'referred to ? Evidently a complete and perfect gift. There can be no gift unless there is an intention to give, and, pursuant to the intention, the control and possession of the thing given are parted with by the donor. The thing given and referred to in the will being something, the control and possession of which the testator had parted with before the execution of the will, it could not have been the notes in suit, nor the indebtedness of which they were the evidence.
It is not claimed that the notes were given by the testator in his lifetime to the appellee. The testator did not part with the notes, but held them as a valid and subsisting indebtedness at the time of his death. The words “ in addition to what I have already given him,” evidently refer to some *268 thing else. If the notes in suit are not what was referred to, then the will must be construed without reference thereto. Giving the will the construction that its language imports, and the only construction which it seems to me can be given to it, and but five hundred dollars is bequeathed to the appellee. If the debt had been forgiven or released by the testator in his lifetime (which is not claimed), then that should have been the defence, and not that it passed by the will.
Filed April 6, 1889.
To permit parol evidence for the purpose of showing that the notes passed by the will, in addition to the five hundred dollars, is simply to enlarge the terms of the will, and give to the appellee several thousand dollars more than the will gives him. In other words, the will which the testator made is, by parol evidence, transformed into a new and different will; that is to say, the will as made by the testator gave to the appellee five hundred dollars, but as made by parol evidence for the testator, and after his death, several thousand dollars. If the will of the testator here under consideration can be thus changed, in my judgment any other like instrument may be so changed, and if this rule is to be applied to wills, then why not to all other written instruments ?
I can not yield my assent to what I consider a new and dangerous departure from the well settled rule of law, everywhere prevailing, that parol evidence can not be introduced to change, alter or vary the terms of a written instrument.
Olds, J., concurs.