
    Iddings and others against Iddings.
    •In Error.
    
      Monday, June 18.
    THIS was a writ of error to the Court of Common Pleas to f Union County, in which a feigned issue was tried, to termine the validity of a writing purporting-to be the last * _ • ° 1 • 0 frill and testament of Henry Iddings,, deceased. • The tiff having given evidence in support of the will by the oaths of the two subscribing witnesses, one of whom was Jonas Candor, the scrivener who drew it, the defendants offered to prove on tHe cross examination of the said Candor, that through ignorance he had drawh' the will in suph á maimer as to contradict the intention oí-the'testator. "The nature of the mistake was as follows. . The testator’s estate was cipally personal. He had a number of children, to. some of whom he had made advances in money, and it was his design to make-an equal division of his property among them. 0 , . , r . r 1 ' , In order to effect this, a legacy was given to each, which would have put them all on nearly an equal, footing, ing that the su.ms advanced to each, were added to their legacy. But the scrivener inserted in the will, a direction the executors not. to cancel any of the accounts between the J testator and his children ; the consequence of which would be, that the'children must account for the sums advanced to them, and then their provision would be very unequal. mistake arose from the scrivener’s ignorance of the meaning of the word cancel. It appeared that the testator was ninety two years old, and had ten children. The defendants further offered to prove that one of the testator’s children was not named in the will, and that the will was extorted from the testator by the importunity’and hard usage of Thomas dings, cine of his children. The Court rejected this evidence, and the defendants excepted to their opinion.
    Parol evishe.w tttat a scrivener in a woldsof tluf m“nhinj> ignorant, in ^reffeetoff[g dispositions; may be reoeiv. guity, or to [ultíng trust, ?r in,case °.f fraud or mistake to annul
    míe allowing tófn^gardto°B w'tteninstrummits. ougnt rather to be [han extend-'
    scrivenermhus [[[[“hauhé testatorfurwith the mat-[1ee1’^[a,yh^''lU’ °u the natb^wliat t!onswereUespecially if the will be attacked on the ground of imbecillity in the testator, and of undue means used to procure it: solely however, with a view to those points: for if the testator was sound and free, the will must stand as it is written.
    
      
      Jbnas Candor-, the above mentioned witness, having stated on j,js examination that the testator furnished him with the matter of the will, the defendants proposed to ask the witness ^hat were the instructions given to him by the testator, and ■ requested him to state them at large. The plaintiff objected • to this testimony, and the Court overruled it, and sealed a second bill of exceptions.
    T.he verdict and judgment.below, were for the defendant ia error, in favour of the will.
    
      Morrell, .for the plaintiffs in error.
    ' 1. The question is, whether parol evidence- is- not admissible to shew mistake in the execution of a will. In Pennsylvania, the adjudged cases shew that the general rule is-well settled, that what passed "at the time of the execution of a writing, is proper to shew mistake or fraud. Hurst v. Kirkbride, 1 Binn. 616. Simpson v. Drum, 6. Binn. 481. Even in England on a bill for specific performance, chancery allows the defendant to shew by parol proof, that there was á mistake in the instrument, as in Joynes v. Statham, 3 Atk. 388, where the Lord Chancellor allowed the defendant to provecby parol evidence, that the plaintiff, in writing the agrément, had omitted to insert in it that the rent was to be paid clear of taxes': and it is said to be a very common defence in that Court, that there had been an omission, fraud, or mistake. The same declaration is recognised in Langley v. Brown, 2 Atk. 203. In Bigleston v. Grubb, %. Atk. 48, a bill was brought for a legacy of 500/. in right of a daughter of the testator', notwithstanding a portion had been given her in the father’s life-time. Parol evidence was admitted to shew the father gave the legacy in full of what he intended his daughter under the will. In 2 Munf.- 187, the substitution of a deed for a will was proved by parol. So fraud on the testator may be shewn. Phill. Ev. 428. The evidence ought to have been admitted, to. shew the weakness of the testator ; and in that point of view, it was immaterial whether the scrivener drew the will wrong through fraud or ignorance. He also cited 7 Bac. Ab. 380.
    2. The defendants below were not permitted to ask what were the testator’s instructions to the scrivener: though the testator had omitted one child entirely, which leads to the conclusion, that he had not capacity. He had ten children, and was ninety-two years old. '
    ffepburn, contra,
    was stopped by the Court on the first . bill of exceptions. ,
    2. On the second, he contended, that the question was asked for no purpose but to get in evidence which had been rejected. . The testator’s sanity was not stated as a matter of dispute.
    Greenough, in reply,
    confined himself to the second bill of exceptions. The question proposed, as mentioned in the. second bill of exceptions, was on' the cross examination, of a witness, produced by the adverse party. Having stated that the testator furnished him with the matter of the will, we were entitled to know what that matter was. If the evidence was good in itself for any purpose, it is sufficient; and the party offering the evidence is not bound to State its object unless requested. 4 Binn. 198. The instructions were very material in order to investigate any fraud, that may have existed.
   The opinion of the Court was delivered’by

Tilghman C. J.

This may be a very unfortunate mistake for some of the children of the testator, but I am clearly of "opinion that the evidence was not admissible.- Our law requires that wills should be in writing, and proved by two- witnesses. But if the writing is to' be contradicted by parol evidence, the object of the law will be defeated and all certainty destroyed. It is very common, for scriveners to make mistakes, particularly where they make use of technical words, which they are fond of doing. But, if these mistakes were to be corrected by the scrivener’s recollection of his conversation'with the testator, it would open such a door .for perjury and confusion, as would ■ render wills of very little use. The rule of law therefore is, that the- writing is -not to be altered, or explained by evidence aliunde.' But this rule is not so unbending as to admit of no exception. It may happen, that expressions apparently certain, may be rendered uncertain, by something peculiar in the person, or the subject, to which they are applied.. A man has two sons of the name of John, and devises land to his son John. The uncertainty is made to appear by parol evidence, that there are two sons called John. It is permitted therefore, to remove this uncertainty by other parol evidence, shewing which son was intended. Without this evidence, the devise would be void, and in truth, its object is, to explain a doubt arising not on the will, but on a matter out of the will. But, if a doubt should arise on the face of the will, (an ambiguity patent as it is called,) it'is not to be explained by parol evidence. So parol evidence has been admitted, to rebut a resulting trust. Neither is this in contradiction of the written will'. The trust is not declared by the will, but raised by operation of law. The legal presumption may therefore be encountered by parol evidence of the testator’s intention. But the xvritten xvill is preserved, without addition or diminution. In the case of fraud top, always .the subject of the laws abhorrence, evidence is admitted, not for the purpose of explaining, or altering the writing, but of shewing it to be void. If, instead of the will which a man has read, and intends to execute, another is substituted which he executes, it is evident that this is not his will, and proof of this fraud is permitted. So I apprehend, the truth might be shown, if by mistake, the wrong paper was executed and the testator died before there was time to correct, the error. These are, in general, the cases in which parol evidence is- allowed, although I will not say that there may not be others. Now the case before us, is very different from any I have mentioned, for there is no latent ambiguity, no fraud, no resulting trust, The will was read to the testator, and executed by him, without any kind of mistake or imposition as to the paper itself. The mistake, if there was one, was in the meaning of a very common word, (cancel.) I have mentioned the rule of law, and will refer to good authorities to prove it, although I shall not undertake the useless, and endless labour, of examining all the cases in the books or. the subject of parol evidence. The case of Brown v. Selwyn, is strong to this point, and I select it because, it was affirmed by the house of lords in England, and has been recognised by our Courts. In that case, (reported in Cas. temp. Talb. 240, and 4 Bro. P. C. 176. 186,) the testator had devised the residue of his estate, to his two executors equally, and it was offered to be. proved, that he had given instructions .to the person who drew his will, to release a debt due on bond from one. of his executors, but the evidence was rejected. In the case.of Mann and others v. Mann and others, (1 John. Cha. Rep. 231,) where the lawon this subject of parol .evidence is laid down with great learning and accuracy.by Chancellor Kent, Brown v. Selwyn is cited and relied on; as it is also in Torbert v. Twining and others, decided by this Court in the year 1795, (1 Yeates. 432.) The case of M'Dermot v. The United States Insurance Company, (3 Serg. & Rawle 604,) decided by us in 1818, adheres to the same principle of rejecting parol evidence, with the exceptions which I have mentioned. In short, it may be affirmed without hesitation, that the' current of authority, runs strong in the. same channel', .although it cannot'be asserted that all the cases áre in unison.' For my own part, being'convinced by. experience, of the danger of parol evidence, I am more inclined to shut the door, than throw it wider open. I concur therefore with the opinion of the Court below in the present instance. But there is another bill of exceptions, in this cause. The counsel for the defendant offered to ask the same witness, (the scrivener who drew the will,) what were the instructions which he received from the testator. This question the Court would not permit to be asked.' But, when it is considered, that this witness, .who had been produced by the plaintiff, had before, declared, on his examination in chief, that the testator furnished him with the- matter of the will,” there can be no doubt, but the defendant ought to have been permitted to ask, in the'cross examinatiqn, what that matter was. Besides, as the defendants opposed the will in toto, on the ground of its being obtained from an old man above the age of ninety, by the.excessive importunity and harsh treatment of his son Thomas, it was very proper that the jury should be informed of all circumstances attending the drawing and exe-_ cution of it. Who were present, what the. old man said, whether any person interfered, or prompted him, in giving the instructions, how it happened that the name of one of his children was entirely omitted, (for that is said to be the case,) all these, and other circumstances, might have been material, in forming a judgment of the state of the testator’s’intellects. The evidence therefore should have been admitted, solely with a view to that object, and at the same time ihe jury should have been warned in pointed terms, that if .the testator was °* ■ a sound mind, and free from duress, the will was to' stand as it was written, without regard to the instructions. My Opinion is, that in the second bill of exceptions there is error, and therefore the judgment should be reversed and. a new trial ordered. ■

Judgment reversed’ and a venire facias de novó awarded.  