
    Edward Wheeler et al. versus Newell Bent, Executor &c.
    
      Oct. term 1827.
    Where after a will of real and personal estate was duly executed, a scrivener, by direction of the testator and in the presence of only one of the subscribing witnesses, interlined another legacy, it was held) that the alteration did not make the will void.
    This was an appeal from a decree of the judge of probate allowing a will which was dated April 6, 1823. The appellants were two of the testator’s daughters and heirs at law, with their husbands. The will was duly executed in the presence of three witnesses. After devising certain real and personal estate, the testator gives the residue of his real and personal estate to his sons, Newell Bent and Samuel Bent, they paying the testator’s debts and funeral charges ; and also paying to his “five oldest daughters, that is to say, to Experience Jenkinson, wife of T. J , the sum of fifty dollars,” &c.; four only of the five being named, with a legacy of fifty dollars to each. In July, 1825, the testator desired a scrivener to interline the words, “ to Mary Haynes, wife of Daniel Haynes, the sum of fifty dollars.” Mary Haynes was one of the five daughters. The interlineation was made in the presence of J. Rice, One of the subscribing witnesses, and was declared by the testator in the presence of no other witness than Rice and the scrivener, who did not subscribe the instrument at the time of the alteration. At that time A. Kidder, one of the subscribing witnesses, was dead.
    
      A. Hilliard, for the appellants,
    cited St. 1783, c. 24, § 2 , 1 Roberts on Wills, (Amer. ed.) 290, § 13; 2 Stark. Ev. 476 to 481 ; Homer v. Wallis, 11 Mass. R. 309 ; 1 Chit. Pl. 479, notes j and k.
    
    
      Hoar, contra,
    
    cited Jackson v. Malin, 15 Johns. R. 293; Sutton v. Sutton, Cowp. 812; Mason v. Limbrey, cited in 1 Burr. 2515 ; Plume v. Beale, 1 P. Wms. 388 ; Larkins v. Larkins, 3 Bos. &. Pul. 16.
    
    
      
       An immaterial alteration in a will, if made by a stranger, will not destroy it. Malin v. Malin, 1 Wendell, 625.
    
   The question was, whether the alteration rendered the will void. The Court held that it did not, and the decree of the judge of probate was affirmed.  