fair copy of the settled draft changed the word "counties" into "county;" and the will, therefore, omitted altogether the estate for life in the lands in the county of Gloucester. When the will was executed, the abstract of the will, (which agreed with the instructions given by the testator,) and not the will itself, was read to the testator, so that the mistake remained undiscovered. The widow filed a bill, praying to have the will corrected on this evidence; but Sir J. Leach, V. C., refused it, because, admitting it to be clearly made out that the mistake existed, the court had no authority to correct the will according to the intention. The will, executed with that omission, was certainly not the will of the devisor; and so it must be found by a jury upon the facts stated as to the Gloucester estate; but the court could not, for that reason, set up the intention of the testator, which by mistake he had been prevented from carrying into execution, as if he had actually executed that intention in the *forms prescribed by the statute of frauds. To assume such a jurisdiction would, in effect, be to repeal the statute of frauds in all cases where a testator failed to comply with the statute by mistake or accident. His Honor added, that he was willing to direct an issue, whether this was the will of the testator as to the Gloucester estate; and upon this issue the evidence tendered was expressed to give a legacy to the Humane Society, but no sum was inserted, the will was not held to be void. And it would seem, that in this case, if any remedy existed, it would be one that would not destroy the whole will, but one which would correct the mistake and make the will what it ought to be. This has been attempted, in a recent case; and it was decided, that parol testimony could not be admitted to prove the mistake. It would be to make a will by witnesses, and not by writing; to make a will any thing. Avery v. Chappel, 6 Conn. 270, 275. I think, then, it follows, that if courts of chancery cannot admit such evidence to prove a mistake which they might correct, courts of law cannot admit it to prove a mistake to set aside the will. The danger arising from the nature of the proof, is the same in both cases; and if the rules of law would allow that proof, it would be more congenial to principle, and more likely to effectuate the intent of the devisor, to correct the mistake, than to make void the whole instrument. And if the former cannot be done, much less can the latter." In Salmon v. Stuyvesant, 16 Wend, 332,here the defective clause was void as a perpetuity, Cowen, J., said that a decision avoiding the whole will for that reason "would operate as a sentence of nullity against the more important class of wills. No will of any considerable estate, embracing various kinds of property and seeking to provide for a numerous family by the bestowment of different interests, could ever stand the test of such a principle. Some slight mistake of testamentary power, some uncertainty of expression, some lapse of ademption, or one of the thousand occurrences which baffle human wisdom and forecast, always has arisen and always will arise to prevent the exact fulfillment of all the testator's purposes." The case was would be admissible. (i) No such issue was asked. afterwards re-heard before the V. C., when it was suggested, as the result of the conveyancer's evidence, that there was no omission in the will, but that the error was owing to the introduction of a passage which he had first written, but afterwards struck through with a pen; but which had been copied by mistake in the fair will: and it was contended, therefore, that there ought to be an issue, to try whether those words so introduced by mistake were part of the will. The V. C. thought that, if such a case had been originally made, they would have been entitled to such an issue; (j) but that, as it was opposed to the allegations on the record, he could not entertain it. The case was carried to the House of Lords, where the question, whether parol evidence was admissible to prove such mistake, for the purpose of correcting the will and entitling the appellant to the Gloucester estate, as if the word "Gloucester" had been inserted in the will, was submitted to the judges, who declared their unanimous opinion to be, that the evidence was not admissible. (k) perly intro The distinction suggested in the court below is very important. It seems to amount to this: that though you cannot resort to parol evidence to control the effect of words or expressions which *the testator has used, by showing that he had used them under mistake or misapprehension, nor to supply (i) The report states that a case was cited at the bar on the authority of Richards, C. B., in which Lord Eldon had sent it to the jury upon the same description of facts. [But Lord St. Leonards says (Law of Prop. 207) it could not be maintained that the omission of the word "Gloucester" in the particular devise would render the whole will void as to the Gloucester estate: because although the will did not contain all that the testator intended as to this estate, it contained in the actual devise of it nothing but what he did intend. The case was ultimately decided in D. P. upon the construction of what still appeared on the face of the will. Law of Prop., p. 367. (j) Upon this Lord St. Leonards remarks-"This is a dangerous jurisdiction: for although no doubt the striking out of the two lines would have made the will what the testator directed, yet those Clause improduce into will ed on issue may be reject devisavit vel non. lines, though inaccurate, were introduced in order to carry the instructions for the will into legal operation. It might on the same ground be contended that a mistake in a legal limitation made through carelessness or ignorance could be corrected by striking out the words improperly introduced." Law of Prop., p. 197. See also Harter v. Harter, L. R., 3 P. & D. 11; In re Davy, 1 Sw. & Tr. 262, 29 L. J., Prob. 161, 5 Jur. (N. S.) 252. Moreover the effect of striking out the words in Newburgh v. Newburgh would be the opposite of that in the decided cases: it would create a devise and not an intestacy. Per Sir J. Wigram, Wills, pl. 183, n. And see Stanley v. Stanley, 2 J. & H. 502.] (k) 1 M. & Sc. 352. [See Wade v. Nazer, 12 Jur. 188, 6 No. Cas. 46, 1 Rob. 627.] words which he has not used, yet that you may, upon an issue devisavit vel non, prove that clauses or expressions have been inadvertently introduced into the will, contrary to the testator's intention and instructions, or, in other words, that a part of the executed instrument is not his will. In support of this doctrine may be adduced the case of Hippesley v. Homer, () where a testator, having, by his will dated in 1800, devised his estate to certain limitations, by a codicil made in 1804, after empowering one of the devisees for life to make a jointure and charge portions for children, made certain variations in the limitations in the will, and gave certain additional powers of management to his trustees. The bill alleged, that the testator executed the codicil upon the representation and in the belief that it contained nothing but powers to the devisee for life to make a jointure and charge portions for children, and prayed that it might be set aside. The facts charged were admitted by the answer. Issues were directed-First, as to whether the testator did, by a paper writing, purporting to be a codicil to his will, devise in manner following: (Then follow the words of the codicil, by which only the powers of jointuring and charging portions were conferred.) Secondly, whether the testator did, by the said codicil, devise in manner following: (Here was set forth the remaining part of the codicil.) The jury found that the part of the codicil which was the subject of the second issue did not constitute the will of the testator; and that the part of the codicil which was the subject of the first issue did constitute the will of the testator. Whereupon the court (not being able to direct the instrument to be delivered up, as part of it was good,) declared that so much of the codicil as did not constitute the will of the testator was void. Execution of wrong instrument; [So parol evidence is admissible to show that a document duly executed as a will was never intended to operate as the will of the deceased; as, if two persons, intending to make their wills, each by mistake executes the document prepared for the other: (m) or to show that a document was not intended to be testamentary but only as a contrivance to effect some collateral object, e. g., to be shown to another person to induce him to comply with the *pretended testator's wish. (n) In both -of a pretended will; (1) T. & R. 48, n. [See also Powell v. Mouchett, 6 Mad. 216; Lord Trimlestown v. D'Alton, 1 D. & Cl. 85; Lord Guillamore v. O'Grady, 2 Jo. & Lat. 210; In re Duane, 2 Sw. & Tr. 590, 31 L. J., Prob. 173; In re Oswald, L. R., 3 P. & D. 162. (m) In re Hunt, L. R., 3 P. & D. 250. (n) Lister v. Smith, 3 Sw. & Tr. 282, 33 L. J., Prob. 29. -of a dupli these cases the animus testandi is wanting. So parol evidence is admissible to show that the later of two identical documents was intended to be a duplicate of the earlier one, and not cate. a distinct instrument. (o) of fraud. One will surtruded for an reptitiously ob other. Parol evidence is also admissible for the purpose of counteracting fraud; 6 for to reject it in such case would be to make a Rule in cases rule, whose main object is to prevent injustice, instrumental in producing it. As in Doe d. Small v. Allen, (p) where it appeared that the testator, upon being pressed by some persons to execute a second will, inquired if it were the same as the former; and being told that it was, executed the will, which turned out to be different. It was held in K. B. that evidence of these facts ought to have been received. "I agree," said Lord Kenyon," that the contents of a will are not to be explained by parol evidence; but, notwithstanding the statute of frauds, evidence may be given to show that a will was obtained by fraud; and the effect of the evidence offered in this case was to show that one paper was obtruded on the testator for another which he intended to execute." [And as a charge of fraud may be supported, sq, it may be rebutted by evidence of this nature. Thus, in Doe v. Hardy, (q) where the defence to a claim under a codicil to the testator's will was, that the codicil was a forgery; an objection was made to the receipt of evidence, offered by the plaintiff of declarations by the testator, that he intended the lessor of the plaintiff should have the property. But Littledale, J., thought the declarations of the testator were admissible (0) Hubbard v. Alexander, 3 Ch. D. 738; see also Doe v. Strickland, 8 C. B. 724.] 6. The rule is well established, although it is rather one of probate than of construction, that parol evidence inadmissible to explain a will may be admitted to show fraud in its execution, Hearn v. Ross, 4 Harring. 46; Webb v. Webb, 7 Mon. 626; Collins v. Hope, 20 Ohio 493; 1 Redf. on Wills 508, et seq.; or a mistake (under the issue of devisavit vel non), Reel v. Reel, 1 Hawks 248; McAllister v. Butterfield, 31 Ind. 25; Grimes v. Harmon, 35 Ind. 198; or to show that testator intended for a will what was a deed in form, Rob ertson v. Dunn, 2 Murph. 133. But see [(p) 8 T. R. 147. to show his intentions where the defence was either fraud, circumven tion, or forgery.] heir or devisee forced. Another illustration of the principle occurs in the case suggested by Promise by Lord Eldon in Stickland v. Aldridge, (r) " of an estate to testator en- suffered to descend, the owner being informed by the heir, that, if the estate is permitted to descend, he will make a provision for the mother, wife, or any other person, there is no doubt equity would compel the heir to discover whether he did make such promise. So, if a father devises to the youngest son, who promises that, if the estate is devised to him, he will pay £10,000 to the eldest son, equity would compel the former to discover whether that passed in parol; and, if he acknowledged it, even praying the benefit of the statute, he would be a trustee to the value of £10,000.” And it is clear that, in such a case, (and this, indeed, is the *point which is chiefly material here,) if the trust were denied by the heir or devisee, it might be proved aliunde. (8) admissible to repel a resulting trust. It seems, too, that parol evidence is admissible for the purpose of Parol evidence rebutting a resulting trust;7 as in such case, it does not contradict the will, its effect being to support the legal title of the devisee against, not a trust expressed, (for that would be to control the written will,) but against a mere equity arising by implication of law. (t) On the same principle, parol evidence was, under the old law, admissible to support the claim of an executor (now taken away by statute (r) 9 Ves. 519. See also Drakeford v. Wilkes, 3 Atk. 539. (8) See Oldham v. Litchfield, 2 Vern. 506; [Podmore v. Gunning, 7 Sim. 644; Tee v. Ferris, 2 K. & J. 357; Chester v. Urwick, 23 Beav. 407; Proby v. Landor, 28 Beav. 504; M'Cormick v. Grogan, L. R., 4 H. L. 82; Norris v. Frazer, L. R., 15 Eq. 318.] admissible to establish a trust, e. g., by means of promises made by the devisee to the testator. Colgate D. Owing's Case, 1 Bland 370; Collins v. Hope, 20 Ohio 493; Jones v. McKee, 3 Penna. St. 496; Gaullaher v. Gaullaher, 5 Watts 200. But parol evidence, going to show that the will was made with the knowledge and assent of A, who declared his intention of carrying out its provisions, will not establish a binding contract to charge the estate of A with a trust in favor of C. Whitridge v. Parkhurst, 20 Md. 62. Nor is it competent to prove by the testator's declarations that he intended a devise to A, to be for the benefit of B. Weston v. Foster, 7 Metc. 297. 7. See Mann v. Mann, 1 Johns. Ch. 234; S. C., 14 Johns. 9; Botsford v. Burr, 2 Johns. Ch. 416; Steere v. Steere, 5 Johns. Ch. 1; Jackson v. Feller, 2 Wend. 465; Iddings v. Iddings, 7 Serg. & R. 111; Billingslea v. Moore, 14 Ga. 370; Love v. Buchanan, 40 Miss. 758; Fitzpatrick v. Fitzpatrick, 36 Iowa 674. See also Mr. O'Hara's note in Wigram on Extr. Ev. 274. Parol evidence is also 79. (t) Mallabar v. Mallabar, Cas. t. Talb. |