Hearn v. Ross

4 Del. 46

• Court: Superior Court of Delaware
• Decided: July 5, 1843
• Status: Published

Opinion

By the Court:

Harrington, Judge:—

First. Parol evidence is inadmissible to add to, take from, vary, or explain a written instrument like this. A last will and testament must by our statute of wills, be in waiting, and executed with certain formalities. If a paper so executed could be varied by paroi, it would repeal the statute.

2d. On an issue touching the legal existence or validity of such an instrument, paroi evidence wholly denying it is admissible ; as that a paper was either fraudulently or otherwise imposed upon a testator and executed by him ignorantly as his will, which was not his will. (8 Term Rep. 147, Doe ex dem., Small vs. Allen.) This was a case of fraud; but 1 cannot perceive that there is any difference on the question of evidence, whether the testator through fraud or through mistake signs a paper as his will which is not his will. Thus if a testator directed a certain farm to be given by his will to A. B., and the draftsman, either fraudulently or by mistake, gave if to C. D., and the will was executed in the assurance and belief that it was written according to the directions, evidence of the mistake would, I apprehend, be admissible on an issue of devisavit vel non, because it would prove that the paper offered, at least in reference to this devise, was not the will of the testator. And the will not being capable in this court, if anywhere, of being established in part and rejected in part, the issue must on such evidence be found against the will.

3d. The evidence offered in this case, is that by mistake a certain farm which the testator intended to devise to one of his children, was omitted from the will, and the omission was not made known) to or discovered by the testator when he executed the will. Is this evidence admissible on the present issue Í Does it show, or tend to show, that the will which was executed was not the will of Caleb Ross 1 It is not pretended that there is any thing in that will which is not strictly according to the wish and intention of the testator; it follows, so far as it goes, the directions given to the draftsman; the testator has not been made either by fraud or mistake to express any thing that he did not mean. But the proposition is that because he had a further will in relation to other property which he by accident did not express, that therefore all he did express and execute, though admitted to be according to his intention, is not his will. Can that be so. If it is so, then the omission of any devise or bequest however unimportant, which the testator could be proved to have intended to insert in his will; nay the failure of any devise, though by the ignorance of the draftsman, to cary the full estate intended, would-vitiate the whole will.

In our view, paroi evidence may be given on an issue like this, to-show that the testator, either fraudulently or by mistake, has been made to express an intention that he did not entertain, for this denies the will; but that evidence, which while it admits the will so far as it goes, seeks to controvert it by showing a further intention in relation to other property, is not admissible.

There is no conflict between this opinion and the case of Chandler vs. Ferris. In that case the will as written, was essentially different from the instructions, giving the property for purposes and on an event not intended by the instructions; and the court told the jury if this was proved, and they were satisfied by the evidence that the testator did not know and approve of these deviations from his instructions, then it was not his will. If there was any error in the charge given to the jury in that case, it was in not giving sufficient stress to the fact of the execution of the will as affording strong presumption that the testator knew of the deviations and adopted them. Yet notwithstanding such presumption, if the jury were satisfied by evidence that he did not know or approve of the deviations, it necessarily resulted that the paper executed was not his will, because it made him dispose of his property as he had not intended to dispose of it. No such thing can be said of the paper now propounded as the will of Caleb Ross, if established. It is his will in every word and line of it; though it may also have been his intention, which he accidentally, failed to express, fto devise another farm which is omitted. Evidence of this kind would be admitted in the probate courts in England, for the purpose of perfecting the will, at least as to personalty; and the will would be admitted to probate together with the instructions. (2 Ecc. Rep. 509, Bayldon vs. Bayldon et al.) Such is the real effect of the evidence, not to destroy the will, for it contradicts nothing in the will, but to perfect it according to the intention of the testator, and enlarge the devise to Wm. L. Hearn and wife, by the insertion of the farm accidentally omitted. That cannot be done in this court, but it does not follow because we cannot provide a remedy for this mistake, that it is therefore to destroy the whole will.

Frame and Houston for the caveators. Ridgely, Cullen and Bates for the will.

Evidence ruled out.

This ended the case, and the jury returned a verdict in favor of the will.