9 Barb. 532 | N.Y. Sup. Ct. | 1850
The proofs in the case show that Dwight Gilbert, the testator, and his wife, the complainant, both supposed that the change of property would not affect the devise to her, except to give her the land deeded to him by White and Denton, in lieu of lot Ho. 31, specifically devised to her by the terms of the will. The person who drew the deeds, gave them this advice ; and upon this exposition of the law, it is very clear the testator relied. He was so determined that his wife should have the land, that he proposed to have it conveyed directly to her. And that, probably, would have been done, had it been deemed necessary.
Under all these circumstances, the question is, whether the court can correct this mistake of the testator, as to the effect of the conveyance of lot Ho. 31. I have had occasion very recently, in the case of Arthur v. Arthur, to examine this subject, and found no power authorizing courts to rectify such mistakes. There are many cases to be found in the books, in which it has been held, that a devise had been revoked, contrary to the actual intention of the testator. This can not, under the provisions of our revised statutes, take place so often as formerly. But in this case, there can be no doubt but that the devise of lot Ho. 81, was, and was intended to be, revoked. The mistake was in supposing that the devise shifted over upon, and carried the newly acquired lands. That being purely a mistake of law, can not now be corrected. The statute of frauds, formerly, and now our statute in relation to wills, will not permit this to be done. (2 R. S. 63, §§ 40, 41, 42, 45, 46, 47, 48. Adams v. Winne, 7 Paige, 99. 1 Story’s Eq. Jur. § 179.) And this rule stands upon principle as well as upon statute. (Hunt v. Rousmanier’s adm’rs, 1 Peters’ R. 1. Hall v. Reed, 2 Barb. Ch. R. 500.
The bill must be dismissed, with costs.
