Jackson ex dem. Malin v. Malin

Platt, J.

delivered the opinion of the court. The affidavits on the part of the defendant show no grounds for a new trial., There is no newly discovered evidence ; nor was there any surprise. The defendant was fully apprized before the trial of what Wm. Stewart now swears, and actually subpoenaed him; and instead of moving to postpone the trial, for the want of his testimony, she voluntarily chose to take her chance without him. Unless there be other grounds, therefore, the defendant must abide by the verdict.

On the merits of the case, the plaintiff proved title in his lessor, as sole heir of Sarah Richards, who is admitted to have died seized of the premises in dispute.

The defendant then proved the will of Sarah Richards, and claimed the land by virtue of that will.

The plaintiff then gave evidence to show that the will had been altered since its execution, by erasing the word “ also,” between the words “ Connecticut’’ and “ all,” in the 4th item of the will, and that fact was controverted. The general custody of the will has been with the defendant, as executrix and devisee; but it has occasionally, and repeatedly, been in the possession of other persons.

The judge properly directed the jury to find, whether the will had been altered after its execution; and if so, by whom. The jury found a verdict for the plaintiff, and added the following words, “ and the jury considered that the will has been altered by some interested person.”

In my judgment, the legal construction and effect of the will is the' same, whether it be read with or without the alleged alterations. Nothing is given to Rachel Malin, in the 4th clause of the will, whether the word “ also” be inserted or stricken out. “ Eliza Richards” is the sole object of the testator’s bounty in that clause, as it now stands. The words, “ excepting one thousand acres of land I deed to Rachel Malin,” are to be understood as-excepting so much from the general devise to Eliza Richards, and as referring *297 to the next clause in the will, which devises a thousand acres to Rachel Malin, by particular description; and thus ascertains the part excepted in the former devise to Eliza Richards, which was before indefinite. The words,excepting one thousand acres of land I deed to Rachel MalinR if construed with reference to the whole context, must be read as if in a parenthesis.

A different construction would involve a great absurdity, and require us to reject several words in the 4th clause as senseless and inoperative. For, according to such' construction, the 4th clause devises to Rachel Malin, “ all the lands deeded (to the testator) by Benedict Robinson, excepting one thousand acres and in the next clause, that very one thousand acres is also expressly devised to Rachel Malin. Thus, the destator would be made to say, I give to Rachel Malin all my lands, &c. except one thousand acres, and I give her that one thousand acres too.

If the alleged alteration be immaterial, then the question is, whether the finding of the jury, in this case, is sufficient to warrant a judgment for the plaintiff.

The resolutions of the court in Pigot's case, (11 Co. 26.) were as follows: “ When a deed is altered in a point material, by the party claiming the benefit of it, or by a stranger, even without the privity of the obligee, or party claiming under it, the deed thereby becomes void.’’

“ If the obligee himself alters the deed, although it be ' in words not material, yet the deed is void. But if a stranger, without his privity, alters the deed in any point not material, it shall not avoid the deed.’’ The rule, as laid down in that case, in regard to immaterial alterations, seems to have been uniformly sanctioned by subsequent decisions ; but the opinion expressed in RigoPs case, that a material alteration, though made by a stranger, without the privity of the party claiming under it, renders the deed void, is a proposition to which I am not ready to assent. That question is not before us ; and the authorities show, at least, sufficient ground to consider that point still open fbr consideration. (4 Term Rep. 220. 2 Pothier, by Evans, 179, 180, 181. 5 Taunt. 707.) If the alleged alteration in this will was made by Rachel Malin, or with her privity, then the *298 will is void ; otherwisej it remains valid, notwithstanding the alteration.

In this case the judge properly directed the jury to find, whether the will had been altered after its execution; and if so, by whom. I think the jury have not answered that question with sufficient certainty and precision. The verdict is, “ that the will has been altered by some interested person.^ The words, “ some interestedperson” do not necessarily designate Rachel Malin. Those words are as applicable to the lessor of the plaintiff as to the defendant. The verdict is uncertain on that point, and a new trial ought, therefore, to be granted-, with costs, to abide the event.

New trial granted;