Yates v. Cole, 54 N.C. 110, 1 Jones Eq. 110 (1853)

Dec. 1853 · Supreme Court of North Carolina

54 N.C. 110, 1 Jones Eq. 110

J. P. YATES AND WIFE against MARK COLE AND WIFE AND OTHERS.

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 eopyer.

Bill transmitted from the Court of Equity, of Richmond County, at Eall, Term, 1853.

The hill alleges that Dan’l McRae by his last will and testament, bequeathed “ to his grand-children, Margaret Diggs, and Lucy Diggs, children of his daughter Catharine, de ceased, a negro woman named Becka and her child Yfestly, 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 grand-children, Celia Diggs and Dudley Diggs, ten dollars each, to themselves and their heirs forever.

That the testator had a daughter by the name of Catha-rine, 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 Odia, 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, &e., 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 an answer, lie 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 ae» ■'count of .the hires of the slaves.

The answer of Mark Cole and Ms wife Margaret was-1 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, aro the defendants. Cause set for hearing and removed to this Court.

Banks and Kelly, for plaintiffs.

Winslotv and Strange, for defendants.

Battle, X

The .object of the bill is to obtain the aid oí :a Court of Equity, for the purpose of reforming tho 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 thorn to the feme plaintiff, .for whom it is said they wore intended. This object, if attained at all, must bo accomplished by a parol revocation of •the bequest of the said Lacy, and then by a nuncupative will, giving it to .the said feme plaintiff. Can this be done.? .No authority has been produced by the plaintiff’s counsel ,to show that it can, and we think there is a very strong and ■■decisive reason why it cannot. Adams in his Treatise on Equity, after stating the doctrine in relation to the reformation of instruments inter vivos, says, at page 172, “^that a ’.will, cannot be corrected by evidence ,of mistake, so.astc supply a clause or word inadvertently omitted, by the drawer or copyer; for there can be no will without the statutory forms, and tho disappointed intention has not those forms.” For this, ho cites Newburgh v. Newburgh, 5 Madd. Ch. Rep. 364; Jannan on Wills, s. 121; 8 Vin. Abr. 188, Ca. Pl. 1. To tho same effect, is 1st Story’s Eq. Jur., s. 181. ■Jarman says, that tho case of Newburgh v. Newburgh, was carried to the House of Lords, and there approved by the unanimous opinion of all the Judges. Tho reason given why a Court of Equity declines to interfere, when called on tc reform a will, would seem to restrict it to a devise of real estate. But the principle is certainly applicable to tho will in this case, though it be but a bequest of personalty. In the IStli section 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 tho same, or by cancelling,” &c., 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 tho samo bo in tho lifetime of tho testator, reduced to writing and read over to him and approved,” &c. It is obvious, that with a slight change of the phraseology quoted from Adams, and taken substantially from the opinion of tho 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 tho disappointed intention has not these forms.

Such would be our conclusion in this case, were tho evidence of the mistake satisfactory; but it may not be improper for us to declare, that were the legal objection re-moved, the testimony of the plaintiffs would he insufficient to entitle them to the relief Which they 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, Bus. Eq. 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.-