29 N.Y.S. 988 | N.Y. Sup. Ct. | 1894
The third clause of the codicil to the will of Felix Govin Pino is as follows:
“Third. I bequeath to Felix, Emilia, and Guillermina Govin, whom I love as children: To the first, the lot, and house constructed on the same, marked with the number 241 West 23rd street; to the second, the house and lot marked with the number 204 Lexington avenue; and to the third the house- and lot with the number 204 West 39th street, said three houses being situated in this city.”
Felix and Guillermina obtained immediate possession of the houses and lots severally devised to them, but in the devise to Emilia, this plaintiff, the testator described the house as “Number 204 Lexington avenue,” whereas the only house that he owned on Lexington avenue was 738. That it was an error on his part is beyond controversy. He never owned 204 Lexington avenue, nor did he, at the time of making the codicil, own any house and lot on that avenue other than 738. When he located the house and lot intended to be devised as on Lexington avenue he necessarily had in mind the only house and lot on it belonging to him. How he came to make the mistake is suggested by the fact that the devise to Guillermina was of lot 204 West Thirty-Ninth street This was a correct description, and, the figures 204 being in mind as a correct description of a lot to be devised, they were inadvertently given as the number of the house on Lexington avenue, as well as that on West Thirty-Ninth street. Reading the devise in the light of the surrounding circumstances, we have a demonstration that an error has crept into the description, and what that error is. In such a case we regard it as fairly settled that if, independently of the false description, the devise be effectual, the court may, in an appropriate action, strike out the misdescription, and read the will as if it had never been inserted. Striking out the figures 204, and the devise, would be of a “house and lot marked with the number-Lexington avenue,”—a devise which would unquestionably vest in the devisee the only house and lot which the testator owned on Lexington avenue, for there could be no mistake as to the identity of the lot. In Patch v. White, 117 U. S. 210, 6 Sup. Ct. 617, 710, the testator devised to his brother “lot number 6 in square 403.” There was no such square, but there was a square 406, on which was situated lot number 3, owned by the testator. And the court determined that he had mistakenly substituted “6” for “3” and "3” for “6,” and read the will as if those figures had not been inserted. The decision in that case fully supports the verdict directed in this action. It was the outcome of a vigorous debate in the court. The opposing positions were strongly presented by prevailing and dissenting opinions. The arguments presented by the
