
    In the Matter of the Probate of the Will of Ann Forbes, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 11, 1891.)
    
    Will—Mistake in drafting, will not invalidate.
    The probate of a will was resisted because the name of one of the ahilaren of the deceased was not inserted as a recipient of a portion of the income of the trust estate created by the will, and the claim was that such omission was a mistake, and that it was the intention of the testatrix to have such name so inserted. Held, that mistake alone will not justify the rejection of a will.
    Appeal from a decree of surrogate’s court of Kings county, admitting a will to probate.
    
      John E. Simpson, for app’lt; Charles J. Patterson, for resp’t.
   Dykman, J.

—This is an appeal from a decree of the surrogate, of Kings county, admitting to probate the will of Ann Forbes, deceased.

The probate of the will was resisted because the name of Edwin. Eorbes, a‘ son of the deceased, was not inserted as a recipient of a portion of the income of the trust estate created by the will, during its continuance and the claim was that such omission was a. mistake, and that it was the intention of the testator to have such name so inserted.

We can find neither principle nor authority that will justify the rejection of a will for such a cause, and "the introduction of such a rule would be productive of dangerous litigation and destroy many wills.

There are many reported cases where proof has been introduced in controversies over wills of the expression of testamentary intentions which were not carried out in the instrument Such testimony has usually been introduced upon the question of undue influence, but we find ho case where such proof has been received to destroy a will on the ground of mistake alone and we can easily perceive-that such a doctrine would be fraught with danger.

Testamentary dispositions of to-day may be revolutionized tomorrow, of the next day or the next, and the scrivener who prepares the will may or may not be informed of the change, but it is the written instrument and the solemnities surrounding its execution which manifests the intention of the testator as it is finally fixed in his mind and his purposes must be sought for and discovered in the will, and not in external circumstances or previous-declarations.

In actions for the construction of wills or where those instruments have been called in question in other actions, statements and provisions which they' contained have, been held void for uncertainty and mistake as in the case of Kalbfleisch v. Kalbfleisch, 67 N. Y., 360, where it was held that the numeral eight was used mistakenly. But such presumption and construction is indulged for the purpose of upholding a will, and not for its destruction ; to avoid intestacy and not to decree it.

The decree should be affirmed, with costs.

Pratt, J., concurs. •

Barnard, P. J. (dissenting).

—The facts are very clear. The testatrix made a will some four years before her death. This will exhibited an estrangement between her and one of her children. This child was deprived of a share in the estate, which was about $26,000. A few days before her death she sent to her attorney, Mr. O. J. Patterson, who had drawn her will. Mr. Patterson was in Europe and one of his clerks in his office responded to the call. He saw the testatrix and was instructed to draw a will and make this disinherited child even with the others. The clerk made such changes as he supposed would do this, and he read the will over to the testatrix, and she executed it. She was about eighty-four years old, and died four days thereafter. The will did not in point of fact carry out the intention of testatrix.

■ The formal execution of the will, under these circumstances, should not be deemed to establish an execution by a free and capable testator who understood its contents. The changes were misleading when made, and the essential change to carry out the testatrix plan was not made at all. She relied on her lawyer and did not have sufficient mental power, from her age and from her mortal sickness, to comprehend the will. It was executed under a mistake. If the whole will was not understood, all of it fails, even if the bequests in it were .intended when given to other persons than this disinterested son. The will is an entirety, although the surrogate’s court in Hew York admitted a will to probate, striking out that portion executed under a mistake. Burger v. Hill, 1 Bradf., 360.

I think the will ought not to be admitted to probate. The former will is proven to have been destroyed and revoked thereby.

The will should be refused probate and letters of administration issued, as in case of intestacy, with costs to both parties out of the estate.

Decree affimed, with costs.  