Boell v. Schwartz

4 Bradf. 12

• Court: New York Surrogate's Court
• Decided: April 15, 1856
• Status: Published

Opinion

The Surrogate.

The will offered for probate contains a clause directing certain advances made by the testator to his son-in-law, to be deducted from the share of his wife, the testator’s daughter, together with interest from the time of the original loan. It is claimed that there is a mistake as to the sum mentioned in this provision, and that the error should be corrected on the probate. But there is no proof of any mistake as to the testator’s intention, and nothing to shew that he designed to write any other sum in the will as the amount of the advances, than the one contained in the document as executed. It is not sufficient ground for refusing probate, that error as to matter of fact has been made by the testator, unless indeed the mistake has been of such a character as to affect his testamentary intentions. If the amount declared in this clause of the will to have been advanced to the son-in-law is misstated, it may be that on the settlement of the estate when the advance is to be deducted from the daughter’s share, the error may be corrected. I do not wish however to express an opinion on that point, for it involves considerations depending upon facts and circumstances not now fully before me. The rights of the contestants in that respect, if they have any, will not be concluded by the pro. bate. The question may be raised on the final settlement, or at any earlier period, if a desire exist to pay off the advances and stop the interest. Its determination will depend upon the construction of this clause of the will, and upon proof of facts which I cannot now anticipate. It is sufficient at present to say that there is no evidence to raise a doubt of the testator’s intention to name the amount of the advances at the precise sum mentioned in the will; and the instrument must therefore be admitted to probate in the same words as written at the time of its execution.