Goode v. Goode

1. A court of equity has no jurisdiction to reform a will on the ground of mistake by the draughtsman in drawing the same.

Appeal from Franklin Circuit Court. Petition to the Franklin Circuit Court praying for the reformation of a will. The petition is as follows : “ Plaintiffs state that John Goode, late of the county of Franklin, departed this life on or about the 18th day of April last, leaving a writing purporting to be his last will and testament, bearing date July 12, 1854, with a codicil thereto annexed bearing date April 16, 1855, which writing was admitted to probate on or about the 2.7th day of April, 1855, and upon which letters testamentary were granted on the day last aforesaid to Edward J. Goode and Flavius J. North, who were by said writing appointed his executors ; the original of which writing is herewith exhibited. Plaintiffs state that that portion of said writing, a copy of which is given below, is not and was not at time of the execution of said writing the last will and testament of the said John Goode, but the same was inserted in said writing by a mistake of the draughtsman, and escaped the notice of the said testator at the time it was read over to him and signed and acknowledged by him. The portion of said writing which is not the will of the said John Goode is as follows : ‘ The purchase money of which [that is, of mill farm and tract and mill] (with the exception hereafter made) my said executors shall distribute equally to my sons Langston and Nathaniel, and my daughters Frances, Virginia and Margaret, share and share alike.’ “ Plaintiffs aver that the names of Langston and Nathaniel, and Frances, Virginia and Margaret, were inserted in said clause, above set out, by mistake, and at.the time of the execution of said writing he thought and believed, and to the time of his death he thought and believed he had devised said purchase (excepting the ¡§2500) to all his children, share and share alike, the children of a deceased child taking the share of their parent; that said will, as it stands in connexion with the codicil, is ambiguous, uncertain and contradictory as to said clause, and the same can not receive a sensible construction, if the clause above set out be not reformed. Plaintiffs pray that the probate of said writing, as to the part set forth, may be set aside, and said writing so corrected and reformed as to become the true last will and testament of the said John Goode, and that the same,' as reformed and corrected, be admitted to probate, and for such other and further relief as the facts of the case shall warrant.” The whole passage, from which above extract is taken, is as follows : “It is my will, and I authorize and empower my executors, to sell and convey in fee simple, to the best purchaser, my mill farm and tract and mill, situate on the Bourbeuse river, the purchase money of which (with the exception hereafter made) my said executors shall distribute equally to my sons Langston and JYathaniel, and to my daughters Frances, Virginia and Margaret, share and share alike. And twenty-five hundred dollars of the said purchase money ($2500) shall be held in trust by said executors for my sons Langston and Nathaniel, and my daughters Frances, Virginia and Margaret, and the same shall be by my executors loaned; and the interest upon the said sum, to-wit, $2500, shall be collected annually and paid over to my daughter Agnes Gregory, and to John J. Goode, as maintenance during their lives; and at their death the said $2500 shall be distributed to my sons Langston, Nathaniel and John J. Goode, and to my daughters Frances, Virginia and Margaret, share and share alike.” “After all the bequests are paid and satisfied, the residue and remainder of my estate I wish distributed among all my children, share and share alike.” The petition was demurred to by the defendants ; the demurrer was overruled, and judgment given for defendant; defendant appealed to this court.. 1. For the purposes of this case it stands admitted by the record that the mistake set out in the petition was in point of fact made, and in the manner there stated. Now one of the grand branches of equity jurisdiction is mistake. (1 Story’s Eq. § 110, et seq.) 2. A mistake in the name of a devisee may be corrected. (Beaumont v. Fell, 2 P. Will. 140 ; Dowset v. Sweet, 1 Ambler, 175 ; Parsons v. Parsons, 1 Yes., jr., 266 ; Smith v. Coney, 6 Yesey, 42.) 8. So, a mistake in the number of the devisees may be corrected. (Stebbing v. Walkey, 2 Bro. Ch. 85; 2 Yesey, 560 ; Tomkins v. F., cited 3 Atk. 257; Hampshire v. Pierce, 2 Yesey, sr., 216.) 4. So a mistake in the thing willed may be rectified by a court of equity. (Selwood v. Mildway, 3 Yesey, 306 ; Riggs v. Myers, 20 Mo. 239.) 5. The court below should have held that so much of the writing as is a mistake, and was inserted in the testator’s will by the draughtsman, through mistake, was not a part of his will, and should not have sustained the demurrer. (Hippesley v. Horner, in note to Turner & Rus. 48, 11 Eng. Chan. R. 28.) And by declaring the portion of the writing, inserted in the will by mistake, not to be a part of the testator’s will, the intention of the testator, as shown by the petition, and as is admitted by the demurrer, would have been completely carried into effect. For, by a subsequent clause in the will, all his children, share and share alike, are made residuary legatees ; and the clause that was inserted in his will by mistake gives the purchase money of the mill tract, farm and mill (which he willed to be sold) to a part of his children, Langston, Nathaniel, Frances, Yirginia and Margaret, instead of to all of his children, share and share alike, as it was the intention of the testator it should have been. 6. The will, as it stands in connection with the codicil, is contradictory and in conflict with the codicil, and said will and codicil can not have a sensible construction together, unless the portion of the will inserted by mistake be held to be no part of the testator’s will. 7. It is admitted by the record that said will, as it stands in connection with the codicil, is ambiguous and uncertain, and contradictory as to said clause, and the same can not receive a sensible construction if the clause set forth in the petition be not reformed. (See Wigram on Wills, 170, 172; Jarman on Wills, 160, 318; 20 Mo. 239 ; Ram on Wills, 272 ; Flood v. Hawser, 1 Nott & MeC. 321; 1 Sto. Eq. 179, 183 ; 2 Yerm. 517 ; 6 Term R. 671; 1 P. Wm’s, 421; 2 P. Win’s 209 ; 2 Vern. 593 ; 1 Bro. Oh. 223 ; 6 Yes. 385 ; 1 Williams on Exec’rs, 299.) Stevenson and Johnson, cited Williams on Executors, 299; 1 Jarm. on Wills, 347, note ; 2 Rop. on Leg. 320-2 ; R. O. 1835, statute of wills, § 4.