
    John Reeves et ux. et al. v. Thomas Reeves et al.
    From Orange.
    Every 1 estator is presumed not to intend to die intestate, as io any part of his estate. Therefore, a residuary clause, unless "vpresslv restrained, always passes whatever is not otherwise disposed of,
    Parol evidence is inadmissible to prove, that the intention of the testator was not properly expressed in the will; or that he used words., the meaning of which he did not understand,
    The Plaintiffs in this bill averred, tiiat Thomas Lynch duly made and published his last will — whereby, after devising three hundred acres of land to his brother Jesse Lynch, he proceeded as follows: “ I give all the balance « of my laud, with the appurtenances thereof to my bro- “ ther Moses. I also give, him my negro man Jim, with “ all my stock of all kinds, with tiie balance of ail my « property, to my brother Moses. That the second clause '•s üf íbi." ns,!' iasi \\V.'¡ and íebtuiyni. -nay T pronoriy ■; ursdeiv.'íf.' !s I vúsb mv broiñai‘ ^Sosís t<» h-Tait al! id7 íS jmiperlv, eATey! the three hundred aere . eí ’asid men-liosic'd c:,s fb.* íiivt cbíijw. ?;ivoi3 t> ¡ay Eu-cfne¿‘ Thuí a'« ejsr-oií.íed bis brother «JScís íea roí coy wiio dy-írs'j shus-ib ríuv Ni^1- tesísuor, ÍÍííi wíU v/;vi iuOvCi by the íMend.-uJ, vs, wit© look o;it letiere -jT adrajiúetm-clon,, v-'iSÜi ím ni!I a»».e;Kch Thai ai U¡e íic;:«'<T ssiekbjj iho ?,ÍU, tin. íCíiíciíoí1 iiíííi tu íiükpacCL'i'iííios,! oídy sax1 rlavr., the üí'^ü-si .Yiuu büt was eoiiUed ú» Kwudry ot^-c-üj, whlcb hvit hcif ío That LV w:í! n,v-s written by ¡fie i VÁ-míauí, limes, who, oí the ¡if;:,': «i urii'in™ i', asked ihv testarea* wiiru he intended ío do wifi: the other :íe;*;rorí¡ which he claimed, but which wore not, 5n lila atil jvcoiml dhecüoas tu :-;ay niúhi.ry abad: them íst iba v. íli y üvs. testator suidi.'>íy i Uní they vícm-, iir.i «i) ids at:fl hn ncm* ihfcisdcd Id trouble Lins-sr!f about them — -that if ha liad che;» úr p;.;iOH4:>i;ínp Iíu should Huí b-atc íbera tu L'b ííxUíie»’ Jluee;;,, and that T they wm recovered, iS»«y would be divided amon# htu odio;- brekkers and ¡¡¿efes-s. Thai after the death e? íhí, teí^ntor» ¡uñí wi esnitraencatí fot* the said ¡davee by üe-A'ti-btuí ileevcs» wiüeh «ivrr.uurU'd iss ki,s fuvoiv.,
    Tlio Pkiutiffí were the brothers and aíslen,, suri $E,t ')1¡‘'.íí;.h;Íí, of the ‘';í;..-íy of iba ívitíaíosy Tvíso cred '.vi;;I; mi i ■■í'.'.v, nnd n*¡í3»irr?ril, '¿’bo oiísep Bcfeudesdoj bo - ‘¡ido;; íiseves, were the children of Worn, the r^sídiisey TSi"; Pkintifts coutcndtxL tLai the aeyreef, a-,. Císvorcd bj the IMemburi Heaven, did not ¡>:ss ne a pin-;., of the reubbie of »lie testatoi'ds catate — becauce ike woniw of the residuary clause were fyewral- -05*. if tiiev did ]>.iso by itn that It Wes drafted go as ?o ?acb;?le tfieiR ay misukc.
    The sixiícifi", aíMi^'hí; an accotiitt of ¡he uegroec rec.is-vwd by the? ail«uitii.strater, and of their Sure, ¿«d f<j;- & Ulotribuisor? <.f dse HBiOiii'it.
    fi'he ttoibodaot, Reeeai, In bis ru’-sr, <r.> ■u.k'.’ii.ieti! «vli«le of the- «ase made fey thn 7j$»> .!£,
    
      The other Defendants denied tlie conversation alleged have taken place between tlie testator and the Defendant, Reeves, send averred, that on the trial of the suit ^ ‘**!n * the m'groeS now claimed, th*. Plaintiff, John Reeves, who was the fuller of the D'fondant, Thomas Reeves, was offered as a witness, and on his voir dire, swore he was not interested in the event of that suit, as the. negroes, if recovered, passed by the ; esidu-ary ciaos - of the «testator’s will, to his brotlnr Moses, They also averred, which was admitted to be the fact, that an issue of devisavit vel non, as to the will of the testator, betw pen the Plaintiffs and the. Defendant, Reeves, had been found in the affirmative.
    Replications were taken to the answers. The testimony was principally confined to some declarations of the testator, as to his intentions iri disposing of his property, made before the execution of the will.
    JVhsA, for the Plaintiffs.
    
      Badger, for (he children of Moses Lynch.
    
   Ruffin, Judge.

— The construction of the will cannot admit >>í a doubt. It trey -¡ec?i si ngukir enough, that the te-tator bh-aid, in a clause intended to pass many ne-gr-r-., expressly mention but one of them, li is argued from thence, that, he had not animnm dispouendi as to those not mentioned. But it is to be remembered, that every testator is pr esumed not to intend to die intestate, as to any part of his estate; and therefore that a residuary clause is always, unless expressly restrained, held to pass whatever is not otherwise disposed of. If there Was nothing p.irtr «lar therefore in this will, the'e could he no question. But there stems to have been more than ordinary anxieiy in the testator’s inind, that this meaning should be given to his will; for after giving all the balance oí his pioperty to Moses, he declares that he desires íhis'-o be peo ¡e.rly understood, and this* i!l n». peaH that b . m‘*aning is, that «Ifiises :d» di vw property *’4"1 pt the lamí given to Am- C n cly this tai:'* ,-JL \ he re-all iiis

Th ni as ío í!r> p ero' evidence and answer n* die ud-«li. ¡'e -.;. . ; ; i j,Y tibí CO !SÜ'¿;c:Í < i) <-í ¡ble. th.it the »d<v, ■••1io«dd be admitted for a m- nn ni. would be ío iip-u í ; s' «ills by the looses! ai nrooC r¡-* tin re was any thing ¿ti at, there was an ot>.>'»rtiiiú>y ,v i ■ m >«róbate of the will, t.. make the most of it be'bre (!:.«• ¡¡c " who, if sato-Seil s-f any fraud, might have !hun«S n.ri .o bo tii® test «tor’s w:?!, and part not. But it ,. o««S:l in* '•xlreniely dangerous, entirely too much s.-», -v, sy, tk-t the testa, tor did not dev ise, because, in law. the paper would pass a larger estate, and more property, than ■vitoe-\,e\s supposed i;•••• nnher of it meant. The meaning'jf si,e testator is to be judged of by his vfird" ; and they mtst ni»ud. unless it be shown, tiiai kj »«8 imposed on, ii'.'C did not know tiiey weie in his wiki; or knowing that Ü) j* were ¿here, ihat he had been induced by undue influence to execute it against hr» own wishes: which goes on quite a different ground, namely, weasness. I lay out of ihe ca.se the depositions, because liu-y go only to p=a. *e };>• •; intentions, and are rout! auunocy. The Case then stands <>u the answer of tin administrator.

Thai repre.nents, tii it the testator did not intend to be» «jiietith «u i -■ i• i uf his slaves ; but oever'heless made his will win» «1 general ekuse. which dies pass them. The subject, was pressed on hisnotirc several times; and he ordered, that nothing should he said upon it in the will; and declared, :iiat when they were recovered, ne intended them to be divided amongst his other brothers and sisters, lu t Ive executed his will; and that in his senses, and without imposition, as must he taken now from the solemn probate. The two positions cannot stand together; and <4; the two, tii at founded on evidence the more fallacious must yield. This is not at all like the cases of Oldham v. Lichford (2 Vern. 506) and Barrow v. Greenough (3 Vesey 152). In each of them, the testator intended to enlarge certain legacies, and with that view to alter his will. This he communicated to the devisees and residuary legatees to be affected thereby; and each promised the testator, if he .would not make the alteration, that his wish should be observed 5 and in confidence thereof, the testator suffered things to remain as they were. Now this was a plain engagement, in the nature of a contract; and it would have been a gross fraud, if not performed, to have drawn the testator into such a trap. In the latter case, much of the proof appeared in writing; being contained in a letter from the legatee to Ihe testator. X am not certain, that the first case would, at this day, be supported; because the evidence was wholly in parol. Not because of the statute of frauds merely 5 because there can be no doubt, that a fraud or a mistake is without that statute; but because such a fraud, or a mistake of that nature, ought to be made out by the strongest possible proof j and I do not know that, weighing the evidence judicially, any parol proof would avail to over-set a written will, left uncancelled, or unrevoked by the testator. But here it is quite another matter. This is no attempt to raise a trust in the legatee, upon the ground of any fraud or promise by him. On the contrary, it is plainly and merely to aUer a will by parol proof, that the testator used broader words than expressed his infention. it does not even go to the extent of showing, that the testator did not know what words he used ; but only that he did not know the sense of them. The will can - not be contradicted, nor the construction thus varied upon parol proof. I call the evidence parol, although it is contained in the answer of the draughtsman of the will, and the now administrator of the testator. He has no interest in the matter, as he derives no benefit under the will. He is a mere executor in trust, and therefore his answer is no more than the deposition of another witness. And this very case exemplifies strongly the wisdom of, the general rule, as to the strength and extent of the proofs, wkkh Courts ought to require in such cases.— Here comes forward a Defendant, and admits she -Plaintiff's «’.ase. It turns out, that when this Defendant, as administrator, was suing a third paiuy fot the very ne-grees now in dispute, his title to theta was made out by the evidence of the present Plaintiff, who then swore he liad no interest, as the residuary clause of the will passed the negroes to another person. No sooner are the ne-groes recovered upon that, testimony, than lie asserts the will to fee invalid, because the testator was non compos mentis, Failing in that, his nest step is to assert a di» rect ownership, by way of trust, on the ground, that the testator did not know the meaning of his own will j and relies upon the answer of the administrator, who is ids son, to show it. No one can fail to belie*/? tor a moment, that this whole career had bees, marked out between this father and sow, from the beginning. The will is permitted to stand undisputed, while the father’s competency depends on it. The effort then is to get clear of it altogether, because it serves their turn no longer, Next and lastly, it is to make out a mistake in it, by the admission of the Defendant Who could hesitate is anticipate the admission ? it happens here, that the combination is easily detected. I am apt to conclude, that it almost as certainly exists in every other case of this sort, though it may be concealed by a veil not quíte as transparent. At all events, it may easily exist, and elude discovery, and therefore ought to be suspected., Men in their senses are in little danger of giving away more property in their wills, than they intended ; ami upon a change of mind, are ready enough to express if in the will itself. But if if were otherwise, it is better that a particular mischief should be suffered, than a g& •heral inconvenience introduced. Th$ proof ough$ to is«^ {¡s clear as dev. It ought to shed a blaze * f light, un--0,'Bnirid by a single cloud of doubt, upon the very point of controversy.

The bill must bp dismissed with costs, as to all the Defendants, but the administrator, Thomas Reeves. He, being a party in interest and feeling with the Plaintiff must be content to pay his own costs.

Per Curiam.

— Decree accordingly.  