| N.C. | Jun 5, 1830
The plaintiffs were the brothers and sisters, and the husbands of the latter, of the testator, who died without issue and unmarried. The other *221 defendants, besides Reeves, were the children of Moses, the residuary legatee. The plaintiffs contended that the negroes recovered by the defendant Reeves did not pass as a part of the residue of the testator's estate, because the words of the residuary clause were general, or, if they did pass by it, that it was drafted so as to include them by mistake.
The plaintiffs sought an account of the negroes recovered by the administrator, and of their hire, and for a distribution of the amount.
The defendant Reeves, in his answer, admitted the whole of the case made by the plaintiffs.
The other defendants denied the conversation alleged to have (388) taken place between the testator and the defendant Reeves, and averred that on the trial of the suit brought by him for the negroes now claimed, the plaintiff John Reeves, who was the father of the defendant 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 residuary clause of the testator's will to his brother Moses. They also averred, which was admitted to be the fact, that an issue ofdevisavit vel non, as to the will of the testator, between the plaintiffs and the defendant Reeves, had been found on the affirmative.
Replications were taken to the answers. The testimony was principally confined to some declarations of the testator as to his intentions in disposing of his property, made before the execution of the will. The construction of the will cannot admit of a doubt. It may seem singular enough that the testator should, in a clause intended to pass many negroes, expressly mention but one of them. It is argued from thence that he had not animum disponendi as to those not mentioned. But it is to be remembered that every testator is presumed 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 particular, therefore, in this will, there could be no question. But there seems to have been more than ordinary anxiety in the testator's mind that this meaning should be given to his will; for after giving all the balance of his property to Moses, he declares that he desires this to be properly understood, and that it may be, he repeats that his meaning is that Moses shall inherit all his property, except the (389) land given to Jesse. Surely this must take all.
Then as to the parol evidence and answer of the administrator, to vary this construction, it is impossible that the idea should be admitted *222 for a moment. It would be to upset all wills by the loosest of proof. If there was anything in it, there was an opportunity, on the probate of the will, to make the most of it before the jury, who, if satisfied of any fraud, might have found part to be the testator's will and part not. But it would be extremely dangerous, entirely too much so, to say that the testator did not devise because, in law, the paper would pass a larger estate and more property than witnesses supposed the maker of it meant. The meaning of the testator is to be judged of by his written words; and they must stand unless it be shown that he was imposed on, and did not know they were in his will; or, knowing that they were there, that he had been induced by undue influence to execute it against his own wishes: which goes on quite a different ground, namely, weakness. I lay out of the case the depositions, because they go only to preceding intentions, and are contradictory. The case then stands on the answer of the administrator.
That represents that the testator did not intend to bequeath certain of his slaves; but nevertheless made his will with a general clause, which does pass them. The subject was pressed on his notice several times, and he ordered that nothing should be said upon it in the will, and declared that when they were recovered he intended them to be divided amongst his other brothers and sisters. Yet he executed his will, and that in his senses, and without imposition, as must be taken now from the solemn probate. The two positions cannot stand together; and of the two, that founded on evidence the more fallacious must yield. This is not (390) at all like Oldham v. Litchfield, 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; 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 the testator. I 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; 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; and I do not know that, weighing the evidence judicially, any parol proof would avail to overset a written will, left uncanceled or unrevoked by the testator. But here it *223 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 alter a will by parol proof that the testator used broader words than expressed his intention. 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 cannot 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 (391) exemplifies strongly the wisdom of the general rule as to the strength and extent of the proofs which courts ought to require in such cases. Here comes forward a defendant and admits the plaintiff's case. It turns out that when this defendant, as administrator, was suing a third party for the very negroes now in dispute, his title to them was made out by the evidence of the present plaintiff, who then swore he had no interest, as the residuary clause of the will passed the negroes to another person. No sooner are the negroes recovered upon that testimony than he asserts the will to be invalid because the testator was non compos mentis. Failing in that, his next step is to assert a direct ownership, by way of trust, on the ground that the testator did not know the meaning of his own will; and relies upon the answer of the administrator, who is his son, to show it. No one can fail to believe for a moment that this whole career had been marked out between this father and son, 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 to 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 quite 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; and upon a change of mind, are ready enough to express it in the will itself. But if it were otherwise, it is better that a particular mischief should be suffered than a general inconvenience introduced. The proof ought to be as clear as day. It ought to shed a blaze of light, unobscured by a single cloud of doubt, upon the very point of controversy. *224
(392) The bill must be 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.
Cited: Allen v. Cameron,