
    Harrison et als. vs. Morton & Brown, Ex'rs, &c.
    
    Devisavit vel non. Pleading. Practice. While it is true that a will may be contested as to some particular clause, or as to some particular bequest, yet, if the contestants plead specially, as to particular portions of the will, denying such to be the will of the testator, and also plead generally, denying the entire script to be the will of the testator, the court may, without error, strike out the special pleas. Under the statutes upon the subject, no particular form of pleading is necessary in making up the issue of devisavit vel non. All that is necessary, is, that the paper should be propounded and averred to be the will, by the executors, and a denial that the affirmation is true, by the contestants. The general issue, in such case, brings the will as a whole, and all its parts, into contest.
    Same. Charge of the court. Upon the trial of a general issue of devisavit vel non, should the circuit court charge, that if the jury believe there was fraud or mistake, in the making of one or more of several clauses of a will, they should render a verdict for the contestants, it is not such error as would authorise the court to grant a new trial upon the application of the contestants.
    Same. Sa>>>e. The court, in charging a jury upon the trial of an issue of devi-savit vel non, is not required to charge as requested in writing, by the counsel, if the propositions submitted to the court for that purpose, are irrelevant to the case, as made out by the proof which has been submitted to'the jury, or are inapplicable to the issue, however appropriate they may be in the determination of questions arising out of a construction of the will, by a proper tribunal.
    Same. Mvidaice. Upon the trial of an issue of devisavit vel non, parol proof can not be admitted to show that the testator intended to make any other disposition of his property than such as is directed by the will, that he was deceived as to the legal import of the will; or that there was a mistake of the draftsman, if it clearly appear that the will was read over correctly to the testator, before it was signed, and he was capable of understanding its provisions.
    This was an issue of devismit vel non in the circuit court of Bedford county. At the December Term, 1852, DavidsoN, Judge, presiding, tljere was judgment for the plaintiifs, and the defendants appealed in error.
    E. Coopee and Ewiúg & Coopeb, for complainants in .error,
    argued: The first error on the part of the court below in this case, consists in this: that he treats the will as an entirety, and refuses to leave it to the jury to find the instrument propounded, the last will and testament of the deceased, as to part, and not his last will in other respects, should such be their conclusion upon tbe proof. In tbe ecclesiastical courts, tbe practice is to propound tbe will, by a general allegation, or by special allegata as to eacb part, with great minuteness; and even to offer additional clauses not inserted in the instrument, as parts of tbe last will, by proper averment, to which these opposed in interest may reply, (see Hep. passim.) In tbe court of chancery tbe practice is, to make up issues upon tbe whole will, or upon different parts of it, as may be necessary; Hyppesley vs. Homer, 11 Eng., Cb. 28. It is a matter of indifference whether, in this State, parties shall be allowed to make up issues upon those portions of the instrument really contested, or be forced to the general issue, provided the jury are, in tbe latter case, properly instructed; that they may find for part, and against part, as in the case of Oudhrie and wife vs. Owen, 2 Humph. 202. Here, tbe circuit judge refused to do either, but charged the law as if the jury were bound tó find for or against the entire instrument.
    The second error in the conduct of the court below, upon which we rely, was in the failure and refusal to charge that there might be error in the faeimn of a will, by accident or mistake, (outside of fraud upon which he does charge,) sufficient to vitiate the will in whole or in part. .“By an ambiguity iñ th& fadmn is meant, not an ambiguity upon the construction, as whether a particular clause shall have a particular effect; but an ambiguity as to the foundation itself of the instrument, or a particular' pa/rt of it. As whether the testator meant a particular clause to be part of the instrument, or whether it was introduced without his knowledge, (which would be fraud;) or whether the residuary clause, or any other passage, was aeeidentall/y omitted, (which would be mistake without fraud.) These are all matters of ambiguity upon the factum of the instrument.” And if clear and satisfactory proof, that the “insertion or omission” was contrary to the intention of the testator, is produced, the court is bound to pronounce for the will, not in its actual state, but with such error first reformed or corrected, either by the insertion of the passage omitted,'or by the omission of that inserted; 1 Williams on Ex’rs., 296, 300; Femoett vs. Jones, 1 Eng. Ecc. Eep., 433; Gastell vs. Tagy, 6 Hid, 328; Hippesley vs. Homer, 11 Eng. Oh; Eep., 28.
    Another error was, in the exclusion of the testimony offered in relation to the subsequent acts and declarations of the testator, about, and in reference to the will. However doubtful it may be, whether parol testimony is admissible to supply an omission, (by fraud, or mistake,) there seems to be no doubt that such evidence is admissible upon the faotum, so as to 'enable the court, or jury, to pronounce certain parts of the instrument not the testator’s will. The declarations of the testator, both before and after the making of the will, are admitted in evidence, to show intention. See authorities, Supra, and Weatherhead vs. Sewell, 9 Humph., Fcwi of Hewburgh vs. Gowntess of Hewburgh, 5 Madd., 364; Cowen’s Notes to Ph. on Ev., p. 1388.
    "WisbNER, for defendants in error,
    argued: Did the court below err in striking out the three special pleas put in by the defendants? The question involved is, can a party contest any item of a will, and not the whole will? Must not the pleadings put in issue the execution of the entire paper writing? By the act of 1835, it is provided that “ an issue of devismit ml non 
      shall be made up under the direction of the court.” It does not say, issues. If one party may be permitted to contest one item, the will is only established, or set aside as to that item. Another party being dissatisfied with another item may contest it, and there would be no end to the litigation. Farther, this court have decided, that a proceeding to contest a will, is a proceeding in rem, and binds all persons, whether they are parties or not; Patton vs. Allison, I Iiumph., 320. This cannot be so, if a party may put in issue any one or two items of a will. It would leave the will as they found it, except as to those items contested.
    The act of 1789, ch. 33, provides, that the validity of a will shall be tried by a jury,' on “ an issue made up under the direction of the court,” for that purpose. And this court, in Hodges vs. Buchcmcm, 8 Ter., 186, decided, that as the aet only directed one issue, only one could be made up, and the trial of that issue was conclusive upon all the world.
    Did the court below err, in rejecting the proof offered by defendants on the trial of the issue? The proof was incompetent, and therefore properly rejected; Weatherhead vs.' Sewell, 9 Humph, 300, 301; 1 Ter., 404. As to the correctness of the charge of the court, see same authorities.
   OaRuoteRs, J.,

delivei’ed the opinion of the court.

This is an issue of devismit vel non, on the will of Joshua Tates, from the circuit court of Bedford county: The contestants are the children of two of his daughters, Malinda and Eebecca, who died before the testator made this will. These grand-children are excluded by mistake, as they insist, from any benefit under the will. The will, after making ample provision for tbe widow, gives tbe estate to bis “ children.” These grand-children, are, therefore, excluded, contrary, as they contend, to the intention of testator, as expressed before, at the time, and after the writing and publication of the will, by mistake of the draftsman.

This is the ground of contest. Various questions of pleading and evidence arose, in the decision of which, by the court, it is alleged there is error. We will notice them in the order in which they are presented. To the declaration and averments of the executors, in propounding the paper writing, exhibited as the last will and testament of Joshua Tates, deceased, the contestants offer four pleas, tendering issues. The first, second and third, in substance, deny that the sixth, seventh and eleventh clauses, are part of his will. These items are eopied into the several pleas, and embrace all the will which bequeaths property to his children.” The contestants are grand-children; and the objects of these pleas are, to raise the question that they were intended to be included, and that their exclusion was by mistake of the draftsman. The fourth plea is general, and is in these words: “ And the said defendants say, the said paper writing is not the last will and testatment of said Joshua Tates, deceased, and of this, they put themselves upon the country. Coopee, for defendants.”

On this last plea issue is taken, and the other three are stricken out by order of the court. It is contended that this was error; because it is, in effect, denying the right to contest one part of the will, without attacking the whole; or that it is an assertion of the principle that' the whole will must stand, or fall, together. We do not understand his honor so to decide. At least, such is not, necessarily, tbe effect of the judgment striking out these pleas. In making up an issue of devismit ml non, under our acts of 1835, ch. 6, § 6; 1836, ch. 5, § 9, and ch. 18, § 2, C. & N., 110, no particular form of pleading is required. All that is necessary, is, that the paper should be propounded, and averred to be the will by the' executor, and a denial that this affirmation is true, by the contestants. If the latter choose, for the purpose of saving cost, or any other reason, to limit the contest to any particular clause, thereby admitting and putting out of dispute, the balance of the will, they would have a right to do so; and perhaps it'would be error not to allow the issue to be so limited. But it is not necessary here, to decide that question, and we do not do so. In this case, the whole will was put in issue by the fourth plea, and there could be no necessity for the special pleas, if they may be so called. We can see no necessity for a multitude of pleas in this proceeding; it is not contemplated by the statutes. Its effect would be to deprive the proceeding of that simplicity which should characterize it. It would be very easy, if such be the intention of the party, to limit the contest to any particular part, or parts of the will, or to one description of property in a single plea. If it is thought that the will is good as to personalty, and not for land, which is the case in Guthrie vs. Owen, 2 Humph., 202, for want of the solemnities necessary for the latter, and not for the former; or, as in this case, good as to the bequests to the widow, but not as to those to the children, because of the mistake in omitting the grand-ehildren, the issue could be so formed without any difficulty. But where is the necessity of allowing such partial attacks, together with a general denial of the whole will, as was proposed in this case? The only reason for allowing a special, instead of a general plea, or issue, is, to save cost in the investigation. But, if more issues than one are made, and one be general, then the reason fails, and there is no necessity for the special pleas, as the general issue throws open the whole case, and brings the entire will into the contest. ,

His honor, the circuit judge, it is contended, charged the law to be, that a will could not be sustained in one part and defeated in another. If this be the proper construction of the charge, we could not concur in it, but consider that the law is otherwise. But we cannot see how the defendants could be injured by it, as he expressly charged, that if there was fraud or mistake in the clauses of the will which are assailed, that the verdict of the jury must be for the defendants. The effect of the charge would be to produce a finding against the will to the extent desired by the contestants, and still further. It is true that the charge would have been more correct, if the jury had been informed, that they might find that it was a good will in all its provisions, except the 6th, 7th and 11th items, and as to them, it was not the will of the deceased. But we do not regard it as sufficient cause to reverse, on the appeal of' contestants, that the charge went further, and was stronger against the will than they desired. "We are told that the jury might have been witling to break the will in part, but not understanding from the charge they could do that, without setting it aside entirely, they might have failed to go to the extent authorized by the proof. We cannot presume that they would find a verdict against the law, as laid down by the court, upon considerations of this kind. It is enough to see, that they were instructed that it was tbeir duty to find for' defendants, if the proof satisfied them that there' was fraud or mistake in any part of tbe will.

The counsel of defendants requested the court to charge eight distinct propositions, as the law, which were presented in writing, and all set forth in the record. The court declined so charging, on the ground that so far as they were considered to be correct, and applicable to the case, they were embraced in bis general instructions already given. Without going into detail, it is enough to say that we think his honor committed no error in this. Some of the propositions are law, but they had been sufficiently charged. Others are equally true, but had no application to the case made out to the jury, by the proof; and others again embraced principles of law that would be correct in fixing a construction of the will, before a proper tribunal, but had no application on an issue of devismit vel non in a court of probate.

Again, we would not feel authorized to grant a new trial in this case, even if we thought the court had erred in not distinctly charging the jury that they might find against the will, as to some particular clauses, and sustain it as to others, because we see that there is no evidence in this record, that could have produced such a verdict, on any correct application of the law. There is no evidence to sustain a different verdict, and the issue was such as to let in all the legal proof that could be adduced by the’ parties, and the charge such as to give it its full force and effect.

But in the last place, it is argued that the court erred in excluding legal evidence, which, if admitted, would have produced a different result, or might have done so. If this be so, a new trial should be granted, as we cannot weigh excluded evidence, if competent, and determine what effect it would have had upon the jury. The evidence rejected was of this character: Did not the testator say before the making of the will, tliat he intended to include the children of his two deceased daughters, his grand-children, equally with his own children, in the bequests of all his property, after providing for his wife? Did he not say this down to the day of making his will, and afterwards, till his death ? Did he not say after he made it, that if it were not thus written, it was not his will, and he would alter it if it were not so? &c. &c.

Now all this was properly excluded, and is not legitimate proof to show mistake or omission. If such proof were allowed, it is • easy to see that any will might be altered, revoked or annulled by verbal evidence, which would be 'in conflict with our statutes of wills, and of frauds, and the rules of evidence founded in the experience and wisdom of ages, for the preservation of writings from alteration or change, by the proof of facts, resting in the frail memory of man. Such a rule would open a door for frauds and perjuries of the most alarming character, and render insecure all the rights of man. On this branch of the case, it is unnecessary to do more than to refer to the case of Weatherhead vs. Sewell et als., 9 Humph., 272, and the authorities there cited by the court. In that case, it was proposed to prove, that the testator said a few minutes before the draftsman commenced writing the will, that it was his purpose to give a small tract of land to his daughters, and the whole of his estate besides, to his sons, and the writer, instead of the word “sons,” inserted the word “children,” by which the daughters were included. The witness also proved, that at the same time, be said bis only object in making bis will was to provide something for bis daughters, as they were then excluded by law, as to bis land, it being previous to the act of 1790, and the provision was to give them a “small tract of land.” But this proof was ruled to be illegal, and improperly admitted by the circuit judge. And in that case, the will bad not been read to the testator, after it was written, but he signed it, being at the time of sound mind, though in a few hours of his death. In the case now before us, it was distinctly and correctly read over once, twice or three times before it was signed, as proved by the witnesses.

Upon these facts, the court very correctly charged, that even if it had been written contrary to his intentions, as declared previously and subsequently, the presumption would be conclusive of a change of purpose and satisfaction with the will as it was written, if correctly read to him. In a case where the will is not written by a legatee, it is a presumption of law, if the testator is of sane mind, that ho correctly understands the paper he signs; and much more so, if it is also proved that it was correctly read to him. This presumption cannot be .overthrown by oral evidence of declarations made before or after. What has thus been written and signed, is the best evidence of his intentions, and cannot thus be shaken. In the celebrated case of The Earl of Newburgh vs. The Countess of Newburgh, 5 Madd., 364, cited and approved by this court in the case of Weatherhead vs. Sewell, the rule is thus laid down: “Barol evidence is not admissible to supply any clause or word which may have been inadvertently omitted by the person drawing or copying the will.”

There was no proof offered in the case before us, to show that at the time the wTill was written, any thing was inserted against the directions of testator, or omitted that he directed to be inserted, by Inistake, inadvertence or accident. "What effect such proof as that would have, if made in a case like this, where the will was read over before signing and appi’oval; or even when it was barely signed by a competent testator, we will leave to be decided when such a case shall arise. That question is not presented in the case now before us. We'need say nothing about the effect of fraud in the draftsman, as there is no pretence of that in this case.

We affirm the judgment of the circuit court.

Note.— After the delivery of this opinion the attorney for defendants, on a petition for a reconsideration of the ease, stated that the plea of the general issue as it is designated, was not offered until the special pleas were stricken out by order of the court, and that its. wrong position in the record, produced this misconception, and the judgment of the court is referred to as well as the brief of the opposite counsel for this correction. We have to take the record as it is and' decide upon it accordingly. But if this were not so, and the case had been clearly presented by the record, as it is now contended it is or should be, it would not change the result of this opinion. We would be forced to the same conclusion upon the other grounds stated in the opinion. * Carutiieks.  