Opinion
(December Term, 1853.)
A will cannot be corrected by evidence of mistake, so as to strike out the name of one legatee and insert that of another, inadvertently omitted by the drawer or copyer.
BILL transmitted from the Court of Equity of RICHMOND, Fall (111) Term, 1853.
Banks and Kelly, for plaintiffs.
Winslow and Strange, for defendants.
The bill alleges that Daniel McRae, by his last will and testament, bequeathed "to his grandchildren, Margaret Diggs and Lucy Diggs, children of his daughter Catharine, deceased, a negro woman named Becka and her child Westly and their future increase, to them and their heirs forever."
Also, that he bequeathed to his granddaughter, Margaret Diggs, a negro girl by the name of Edy, to her and her heirs, forever.
And to his grandchildren, Celia Diggs and Dudley Diggs, ten dollars each to themselves and their heirs forever.
That the testator had a daughter by the name of Catharine, who had intermarried with John Diggs, and that she and her husband were both dead at the time of the making of said will, leaving them surviving the following children: Margaret, Sarah, Lucy and Dudley; but that they never had any child by the name of Celia, and that it was the intention of the testator, as expressed by him before and the time the said will was written, to leave the negro woman Becka, etc., to Margaret Diggs, since intermarried with the defendant Mark Cole, and Sarah Diggs, one of the plaintiffs, since intermarried with the other plaintiff, John P. Yates, and the ten dollars each to Lucy and Dudley Diggs, and not to Celia and Dudley Diggs, and that the testator did not at the time of writing the last will recollect the names of his grandchildren, but that the said names were inserted through "ignorance, surprise or mistake."
That while the person writing the will was engaged in that service the testator professed to have forgot the names of his grandchildren who were then at the house of his son-in-law, Daniel Johnson, declaring his purpose to be to make a provision for them; that the testator stepped to the door and enquired of a servant the names of his grandchildren who were going to school at Daniel Johnson's, and having received (112) an answer, he dictated to the writer as is set forth in the will, which he set down accordingly. The said Daniel had no grandchild at all by the name of Celia.
The bill prays that the last will and testament of said Daniel McRae may be reformed so as to declare the actual intent of the testator and give and bequeath the negro slaves Becka and Westly and their increase to Margaret and Sarah instead of Margaret and Lucy; also for an account of the hires of the slaves.
The answer of Mark Cole and his wife Margaret was filed and replication was had and proofs taken, but as the opinion of the Court proceeds upon the want of Equity in the plaintiff, it is deemed unnecessary to set them forth. Mark Cole and his wife Margaret, Lucy Diggs and Alexander McRae, the executor, are the defendants. Cause set for hearing and removed to this Court.
The object of the bill is to obtain the aid of a Court of Equity for the purpose of reforming the will of the testator, Daniel McRae, so as to take from the defendant, Lucy Diggs, certain slaves therein bequeathed to her by mistake, as alleged, and give them to the feme plaintiff, for whom it is said they were intended. This object, if attained at all, must be accomplished by a parol revocation of the bequest of the said Lucy, and then by a nuncupative will giving it to the said feme plaintiff. Can this be done? No authority has been produced by the plaintiffs' counsel to show that it can, and we think there is a very strong and decisive reason why it cannot. Adams Equity, 172, after stating the doctrine in relation to the reformation of instruments inter vivos, says "that a will cannot be corrected by evidence of mistake so as to supply a clause or word inadvertently omitted by the drawer or copier, for there can be no will without the statutory (113) forms, and the disappointed intention has not those forms." For this he cites Newburgh v. Newburgh, 5 Madd. Ch., 364; Jarman Wills, sec. 121; 8 Vin. Abr., 188; Ga. Pl., 1. To the same effect is 1 Story Eq. Jur., sec. 181. Jarman says that Newburgh v. Newburgh was carried to the House of Lords and there approved by the unanimous opinion of all the Judges. The reason given why a Court of Equity declines to interfere when called on to reform a will would seem, to restrict it to a devise of real estate. But the principle is certainly applicable to the will in this case, though it be but a bequest of personalty. In sec. 13 of the statute concerning wills (1 Rev. Stat., ch. 122) it is enacted that "no will in writing, passing or bequeathing a personal estate of greater value than two hundred dollars, or any clause thereof, shall be revocable otherwise than by some other will or codicil, or other writing declaring the same, or by cancelling," etc., and "no written will passing or bequeathing a personal estate of two hundred dollars or less shall be altered or revoked by a subsequent nuncupative will, except the same be in the lifetime of the testator reduced to writing and read over to him and approved," etc. It is obvious that, with a slight change of the phraseology quoted from Adams and taken substantially from the opinion of the Vice Chancellor in the case of Newburgh v. Newburgh, we may say here that the will cannot be corrected by evidence of mistake so as to strike out the name of the legatee and insert that of another inadvertently omitted by the drawer or copyer, for there can be no revocation or alteration of a written will of personalty without the statutory forms, and the disappointed intention has not these forms.
Such would be our conclusion in this case were the evidence of the mistake satisfactory, but it may not be improper for us to declare that were the legal objection removed the testimony of the plaintiffs would be insufficient to entitle them to the relief which they (114) seek.
Without going fully into the subject, it may suffice to say that the testimony to convert a deed, absolute on its face, into a mortgage (an instrument founded on a valuable consideration) must be something more than mere declarations — must be proof of facts and circumstances dehors the deed — inconsistent with the idea of an absolute purchase. See Sowell v. Barrett, 45 N.C. 50, and the cases there referred to. The testimony to reform an instrument in favor of a mere volunteer could not, of course, be less.
The bill must be dismissed with costs.
Cited: Lowe v. Carter, 55 N.C. 382.