
    
      Thomas L. Whitlock and Wife vs. Hugh W. Wardlaw, Ex'r. of Joseph Wardlaw, dec’d.
    
    where a will is read oyer to the testator, and he approves of it understandingly by executing it, all previous verbal instructions are superseded.
    A mere mistako by the draftsman not amounting to fraud, or not calculated to change materially the testator’s disposition of his estate, will not vitiate his will — Semble.
    On an issue by way of appeal from the Ordinary the will must stand or fall. The law Court can neither add a clause to the will, nor correct the dispositions made by the testator — Semble. «
    If the legatee who is benefited by the mistake, admits and corrects it, in the absenoe of fraud, all ground for assailing the will is gone — Semble.
    Equity might correct a mistake by setting up a trust pro tanto: per O’Neall, J.
    The report of his Honor the presiding Judge, is as follows :
    “ This was an appeal on the part of Whitlock and wife, the latter of whom was a daughter of Joseph Wardlaw, deceased, from the decision of the Ordinary admitting to probate the last will and testament of said Joseph Wardlaw, deceased.
    
      “ The will was executed by the deceased in his last illness, in the presence of J. R. Ellis, Dr. Templeton, James Douglass and H. H. Creswell; they all concurred that he was in his right mind: indeed, this was not disputed. But it was contended that the will was not prepared according to the instructions of the testator, and that the draftsman, through the fault of the executor, had made many mistakes.
    “ It appeared that deceased, on the day, in the night of which his will was executed, while riding around his plantation, was struck with temporary blindness, dismounted, was unable to remount, and remained prostrated on the ground, until found by his overseer, Mr. Ellis, who, with the assistance of the neighbors, succeeded in getting him home. He complained of violent pain in his side; he lay upon a pallet in a room of his house, and directed his will to be written in another. Dr. Barrett drew the will; he said he took from the testator the heads of the will. He told him he wished Harriet’s (Mrs. Whitlock’s) property secured to her; he wished his son, Hugh Waller Ward-law’s, entailed; he wished him to have more than the others, on account of his long services in living with him many years; this was to be obtained in the crop, stock, notes, &c., all which were to be bequeathed to him. So also he wished him to have the homestead tract of land. ( All the negroes in Florida, he (Dr. Barrett) said, were to be Harriet’s, (Mrs. Whitlock’s). Waller’s property was to be entailed on his children. The witness knowing that Waller was about to be married, wrote the provision, that in the event of his dying, leaving neither wife nor children, then the devise and bequest should go over. He (Dr. Barrett) said that the testator told him that Waller would give him the names of the negroes, and he accordingly furnished them. He said that after he had written the will, as it now stands, he read it over carefully to the testator, who declared each and every part of it to be his will. This was also proved by Dr. Templeton and Mr. Creswell. This witness said it was intended specifically to bequeathe the slaves, and to divide the estate equally, with the exception of the excess in favor of Hugh Waller. It appeared that from the will the testator diJ rected all his negroes not bequeathed, to belong to his son, Hugh Waller, One slave, Aaron, a valuable blacksmith, intended j for his daughter, Mrs. Whitlock, and six other slaves, passed under this clause to Hugh Waller. As soon as he discovered this, he gave up Aaron for the use of his sister, and hired him out as her property. The other six he gave to his brother, Benjamin F. In the will, old Fanny and her children are be- • queathed to Hugh Waller; in a subsequent clause, Patsey, one of her children, is left to Mrs. Whitlock. The negroes in Florida had been in the testator’s life time divided ; part were in the possession of Mrs. Whitlock, part in the possession of her j brother, Benjamin F. The will bequeathes to each of them the * negroes in their respective possession. A part of these slaves had been the property of Joseph N. Wardlaw, deceased. The executor’s declaration was given in evidence, that the testator intended all of the slaves which had belonged to Joseph for Mrs. Whitlock. Part of these were in Benjamin’s possession, and went to him under the will. In the division, in the testator’s life time, according to lists in his possession, some of his own slaves were assigned to Mrs. Whitlock, and some of those which were Joseph’s, to Benjamin. The trust intended to secure Mrs. Whitlock’s estate was awkwardly expressed, but it was manifest the testator intended to place it in the hands of Hugh Waller Wardlaw and Thomas C. Perrin, in trust, for her separate use. The testator was between 70 and 80 years of age.
    “ The grounds of appeal merely question my charge, and hence I need state no other facts than such as arise under them.
    
      “ I instructed the jury, that under the circumstance in which the testator was placed, instructions or reading over were necessary. That the latter was more to be relied on than the mere recollection by the draftsman of verbal instructions. 1 therefore thought, and so told the jury, if the testator understood the will, when read to him, and approved it, by executing it, that that, as his last act, must prevail. The mistakes (if they were mistakes) as to Aaron and the other six slaves had been corrected by the executor, and need not, therefore, now be drawn in question. I expressed to the jury the opinion, that if a slave be given twice in a will, it did not invalidate it, and that the legatees might take as joint tenants. In this case,'ho we ver, I thought that the general bequest of Fanny and her children would be modified by the specific gift of one of the children, Patsey, to another.
    “ I thought, and told the jury, that the trust in favor of Mrs. Whitlock, although awkwardly expressed, would be enforced in Equity. The bequest of the Florida negroes was, I thought, in the will just as the testator intended, and that the mistake was in the verbal proof before us. The executor’s declaration I thought entitled to little weight, and certainly could not control the plain disposition of the will. I thought the estate was as nearly equally divided as could be expected, taking into consideration the fact proved, that many of the slaves devised by the will, were Hugh Waller Wardlaw’s property under deeds previously executed.
    
      “I gave no such instruction as is stated in the 11th ground. The questions on the will were submitted, to the jury with a full expression of my opinion in favor of the will, but I told them they had the power to find against the will if they chose. They found for the will.”
    Thomas L. Whitlock and his wife appealed, and now moved this Court for a new trial, on the grounds:
    1. Because his Honor erroneously charged the jury that no weight or importance is to be attached to verbal instructions ; to be of any avail, they must be written.
    2. That when instructions are given for preparing a will, and the paper is written different from these instructions and read over to the deceased, the jury are bound to conclude that the testator recognized, understood and adopted the alterations, and that the paper, as read over, contains the true intentions of the testator, no matter how different from or inconsistent with the instructions but a few hours previously given.
    3. That when instructions and the paper written are different, to determine the intention of testator, reading over is better than instructions — overrides instructions, and is conclusive evidence that the paper, as read, is the will of the deceased.
    4. Because his Honor instructed the jury that the, mistake in the bequest of the slave Aaron, and others, should not influence them to render a verdict against the will, as the executor had rectified that mistake, and their verdict could not better it.
    5. Because his Honor held and charged the jury that the ne-groes twice given by different bequests and to different persons, was no objection to the paper — that the parties would take the slaves equally or jointly. Whereas the evidence showed that said slaves were intended exclusively for one of the parties.
    6. Because his Honor instructed the jury that the interpolation by the draftsman in the limitation over of the property given to H. W. Wardlaw was immaterial, and should exert no influence against the will, as they were bound to conclude that the testator noticed and assented to the interpolation.
    7. Because his Honor instructed the jury that the bequest in trust to Harriet Whitlock and her children, was no objection to the will, as this bequest would turn out in law to be precisely what the testator intended, to wit: a bequest secured to Mrs. Whitlock for life, remainder to her children, which it is submitted was error, both in law and fact.
    8. Because his Honor charged the jury that they should attach little or no weight to the declarations and admissions made by the executor, H. W. Wardlaw, in regard to the intentions of the testator. That it was doubtful whether such admissions were receivable at all, as they would affect not only his own interest, but that of another.
    9. Because his Honor charged the jury that no matter how many or how flagrant the mistakes made in carrying out the J instructions or intentions of the testator, they were bound to find for the will, unless they were fully satisfied that a fraud, actual or implied, had been practised on the deceased.
    10. Because his Honor charged the jury that there was little or no inequality in the will between the portions of the three children — not more than three thousand dollars ; whereas, according to the evidence, the inequality in favor of H. W. Ward-law, the executor, was between twenty and thirty thousand dollars. And that in favor of B. F. Wardlaw, between ten and fifteen thousand dollars.
    11. Because his Honor did not submit the case to the jury' upon the facts and the testimony, but in conclusion, expressly instructed them that this was one of those cases in which they were bound, if possible, to find for the will — that unless they could be fully satisfied, beyond a doubt, that it was not the will of the deceased, they were bound to find for it.
    12. Generally, because the charge of his Honor and the finding of the jury were contrary to law and the evidence.
    
      Noble, Wilson, for appellant.
    
      McGowen, Thomson, contra.
   The opinion of the Court was delivered by

O’Neall J.

In this case this Court concurs in the instructions given by the Judge below to the jury.

If authority be needed to show that reading over the will to the testator, and his approval of it understandingly, by executing it, supersedes previous verbal instructions, it is only necessary to refer to the case of Rosborough vs. Hemphill, 5 Rich. Eq. 95.

How a mere mistake by a draftsman in a will not amounting to fraud, or not calculated to materially change the testator’s disposition of his estate, can vitiate the will, I confess I have never been able to perceive. This is especially the case, where the mistake is undertaken to be shown against the words of the will, the fact of reading over and an execution, understandingly made. What would that be but to allow parol to control’ the will ? How can a law Court add a clause to the will ? How can they correct the dispositions made by the testator?- On an issue by way of appeal from the Ordinary’s decision, the will must stand or fall. But if a mistake was made, and the legatee having the benefit of it corrects it, for what purpose would the will be assailed ? The will is in all other-respects the will of the testator, and in this respect his will is carried out. It was in this view that I told the jury, if there was a mistake as to Aaron and the other six negroes, the executor and legatee had corrected it, and hence they need not notice it. My notion always has been, that on showing a mistake, especially where it was admitted by the executor and legatee, it would not vitiate the will, but Equity might pro tanto set up a trust, in the executor and legatee, and thus make him correct it. I do not think it worth while to make any further remark on this case.

The facts were for the jury, and they very properly found for the will.

The motion is dismissed.

Withers, Whither, Glover andMuNRO, JJ., concurred.

Wardlaw, J., did not hear the case.

Motion dismissed.  