Connolly v. Pardon, 1 Paige Ch. 291

Connolly v. Pardon

1 Paige Ch. 291 | New York Court of Chancery | 1828

The Chancellor :—From the testimony in this cause, there can be ho doubt of the mistake in the will, and that the complainant was intended as the residuary legatee, who is described by the testator in the will as his brother Cor-mac. He could not have intended it for his brother Henry, because it is in evidence that the testator said he had made inquiries for him in this country, but could hear nothing of him, and supposed him to be dead. The reference to this devise in the codicil, and the description of his nephew as the son of his brother Cormac, shows conclusively that the complainant was the legatee intended. The cases are very contradictory on the subject of admitting parol evidence to correct mistakes in testamentary dispositions, but this steers clear of the decisions in those cases where the admission of parol evidence has been most restricted. If a legacy was given by a testator to his brother John, and it turned out in evidence that he had but one brother, whose name was James, there could be no doubt that the latter would be entitled, because the description of *293brother in that case would alone be sufficient, and the name might be rejected as surplusage.[1] In this case the legal presumption is, that Henry was dead, and that James was the only brother; and that the testator, in fact, believed so at the time he made his will. Again the codicil shows that the father of his nephew, Cormae, was the brother whom the testator intended as the object of his bounty. In Thomas v. Stevens, (4 John. Ch. Rep. 607,)[2] the late Chancellor Kent went much farther, and permitted a person not named or described at all in the will, to take a legacy, upon evidence that she was the person intended, there being no person of the name mentioned in the will.

The complainant is entitled to one-third of the residuum of the estate of the testator; but the executors were justified in submitting this question to the court, and must, therefore, be allowed to retain their costs out of the same.

See Smith v. Smith, 1 Edw. Ch. 189; S. C., 4 Paige, 271; Tudor v. Tirrell, 2 Dana, 47.

The case of Beaumont v. Fell, 2 P. W. 425, was recognized in this case as authority ; and in Tudor v. Tirrell, 2 Dana, 47; but the authority of it is doubted in note 275, pp. 552, 559 of Cowen. & Hill’s notes to Phil. Ev. And seems at variance with the decision in Miller v. Travers, 8 Bing. 244.