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M. JANSSEN wrote with his own hand instructions for a will, in which he left the residuum to his youngest daughter, since married to the Honorable Lionel Damer. The attorney, in writing over the will, omitted the residuary clause; some other variations were made; the draft was read over to the testator, and left in his custody two days; the will was executed in due form-contained legacies to the executors. The testator always afterwards expressed himself as having left the residuum to his youngest daughter. The attorney deposed, that it was merely an omission: the other variations he supposed he had received verbal instructions to make.

The court below had pronounced for the instructions as part of the will.

The delegates decreed that the residuary clause should stand as part of the will, but no other part of the instructions.

DELEGATES, Mr. Justice Willes, Mr. Baron Eyre, Mr. Justice Nares, and Dr. Macham.1

NEWBURGH v. NEWBURGH.

CHANCERY. 1820.

[Reported 5 Mad. 364.]

THE late Earl of Newburgh, having estates in the counties of Sussex, Gloucester, and elsewhere, gave instructions to his solicitor to prepare a will, which inter alia was to give to his wife, the Countess Dowager of Newburgh, an estate for life in his estates in the counties of Sussex and Gloucester. The solicitor prepared a will in writing accordingly, and the same was afterwards laid before an eminent conveyancer to settle. By some accident, the word "Gloucester" was struck out by the conveyancer, and the person who made the fair copy of the will, changed the word "counties into "county," and the will, as fairly copied, omitted therefore altogether the estate for life to the Countess Dowager, in the county of Gloucester.

At the time Lord Newburgh executed the will, the solicitor who attended the execution had with him the abstract of the will as originally prepared, and the will was not itself read, but this abstract, which represented that a life estate was given to Lady Newburgh, as well in

1 Castell v. Fogg, 1 Curt. 298 (1836), accord. See Fawcett v. Jones, 3 Phillim. 434, 485-487 (1810).

Gloucester as in Sussex; and Lord Newburgh executed the will, believing that it followed the abstract.

The first bill was filed for the execution of the trusts of the will as they actually appeared upon the face of the will. The second bill was by the Countess Dowager of Newburgh, stating the omission of her life estate in Gloucester, and praying that the mistake in that respect might be rectified, and that the trusts of the will might be executed with such correction.

The first question was, whether the evidence on the part of the Countess Dowager of Newburgh could be received for the purpose of correcting the mistake?

THE VICE-CHANCELLOR [SIR JOHN LEACH] refused the evidence ; D.C. feed because, admitting it to be clearly made out that the mistake existed, what for this court had no authority to correct the will according to the intenw.comed tion. The will executed with that omission was certainly not the will not be of the devisor, and so it must be found by a jury upon the facts stated advicted. as to the Gloucester estate; but the court could not for that reason set up the intention of the testator, which, by mistake, he had been prevented from carrying into execution, as if he had actually executed that intention in the forms prescribed by the Statute of Frauds. To assume such a jurisdiction would, in effect, be to repeal the Statute of Frauds in all cases where a devisor failed to comply with the Statute by mistake or accident, and to operate this repeal, by admitting parol evidence of the intention of the devisor, which it was the very object of the Statute to avoid. — That this case bore no analogy to cases where the devisee or heir prevented another gift in the will, by undertaking to perform it. There, the Statute was in no manner broken in upon; but this court, in respect of the fraud attempted, fastened that trust upon the estate which in equity and conscience attached upon it. - That admitting that voluntary conveyances might be corrected upon the principle, that as between volunteers this court would not permit a claim proceeding upon mistake, as to which two cases were cited; yet this principle had no application to the case of wills, for the difficulty was not that the will was a voluntary instrument, but that there could be no will without the forms of the Statute of Frauds, and the disappointed intention had not those forms. That if any party asked the same, he was ready to direct an issue to try whether this was the will of the testator as to the Gloucester estate, and upon this issue the evidence tendered would be admissible. No such issue was asked; and the case was sent, as to several questions of legal construction, to the Court of King's Bench.

The heir here contended that the omission of Lady N.'s life estate had made the subsequent limitations void as too remote; and it was immaterial to him, if he was right in this point, to try the fact of devisavit vel non as to the Gloucester estate. If otherwise, he would have avoided the will as to this estate upon the fact; because a gift immediate is not an execution of the intention to give after a prior life estate,

and the omission of the life estate of Lady N. must therefore have defeated the whole devise as to the Gloucester estate.

I was not present at the argument of the foregoing points, but am informed that, as to this last point, Mr. Bell cited a case, not in print, upon the authority of Lord Chief Baron Richards, in which it was considered that Lord Eldon had sent it to a jury to try upon the same description of facts, what was the will of the testator; but whether any such trial had ever taken place was not known.

Mr. Sugden cited Towers v. Moor, 2 Vernon, 98, in which the same doctrine had been held, as to the Statute of Frauds, as was expressed by the Vice-Chancellor.

The case was afterwards re-heard before the Vice-Chancellor, and it was then suggested, as the result of the conveyancer's evidence, that there was no omission in the will, but that the error was owing to the introduction of a passage which he had first written, and afterwards struck through with a pen, but had been copied by mistake in the fair will; and it was contended there ought, therefore, to be an issue to try whether those words, so introduced by mistake, were part of the will.

The VICE-CHANCELLOR thought that if such a case had been originally made, they would have been entitled to such an issue; but that such case being in direct opposition to the allegations upon the record, he could not entertain it.1

1 "In Newburgh v. Newburgh, the conveyancer, in settling the will of Lord Newburgh, had struck out by mistake the word 'Gloucester,' in a devise to the wife of the testator's estates in the counties of Sussex and Gloucester, and the word counties' was then altered by the copying clerk into 'county;' it was held both by Leach, V. C., and Lord Eldon, C., that parol evidence was inadmissible to prove the mistake. Upon an appeal to the House of Lords the judges were unanimous that the parol evidence could not be received, but the case was ultimately decided by the House upon the true construction of what still appeared on the face of the will. Upon the question of parol evidence I cited for the respondent Towers v. Moor, 2 Vern. 98; Seymour v. Rapier, Bunb. 28; Lord Walpole v. Lord Orford, 3 Ves. 402; 7 T. Rep. 138.; Kelly v. Powlett, Ambl. 605, 1 Bro. C. C. 476; Doe v. Bland, 11 East, 441; Harwood v. Wallis, 2 Ves. 195; Fonnereau v. Poyntz, 1 Bro. C. C. 477; Brown v. Selwin, For. 240; Stratton v. Best, 1 Ves. Jun. 285.

"The Vice-Chancellor appears to have thought that the omission of the word 'Gloucester' in the particular devise would avoid the whole will as to Gloucester, although in other passages in the will the estates were regularly devised according to the testator's intention, for although he held that he could not supply the word omitted, yet he said that the will executed with that omission was certainly not the will of the devisor, and so it must be found by a jury upon the facts stated as to the Gloucester estate. He added, that if any party asked the same he was ready to direct an issue to try whether this was the will of the testator as to the Gloucester estate, and upon this issue the evidence tendered would be admissible. This the heir at law declined, because upon the will as it stood, prima facie the Gloucester estate was omitted in the devise to Lady Newburgh for life, with many remainders over, including limitations to unborn children in strict settlement, and it was not until failure of all these limitations that there was in express words a devise over of the Gloucester with the other estates,