and competent to sustain all the trusts of the will in exclusion of the heir at law (3). PART XIV. Mistake. PAROL and extrinsic evidence to control an express revocation, or to effectuate an alledged intention to revoke, not manifested by any act of the testator, it has before been observed, ought not to be received, and the difference is very plain between the admission of such evidence to contradict what is expressed, or establish what has no support from any other indications, and its admission for the purpose of explaining by accompanying acts or declarations, some outward sign of a revoking intention, equivocal in its nature, as the acts of cancelling, obliterating, and tearing, above considered. But even express revocations have been permitted to be controuled by collateral evidence, when that evidence has been furnished by the instrument itself, as where the reasons given by the testator for the revocation (3) It is obvious on the plainest principle that a stranger cannot by tearing, or cancelling, revoke a will. See Haines v. Haines, 2 Vern. 441. expressly re vokes under an obvious misapprehension of facts, the revo→ cation fails. Where testator of a former will are professedly founded upon a mistaken apprehension of facts. Campbell v. French*, is a case of this sort, which though decided in a Court of Equity, proceeded upon a principle of common law. There the testator by his will gave legacies to A. and B. describing them as grandchildren of C. and their residence to be in America; by a codicil he revoked these legacies, giving as a reason, that the legatees were dead; the supposition as to that fact being erroneous the legatees were held to be entitled under the will, upon proof of identity (1). But where a testatrix by codicil gave to 3 Vez. Jun. 321. (1) The case mentioned by Cicero, in his Treatise de Oratore, lib. 1. c. 38. has been often cited, and relied on as a sort of authority in our Courts, more especially in those where the civil law is taken as a guide, for admitting evidence of this mistake of facts, to affect the validity of a testamentary disposition. We are to observe, however, that in that case the error was occasioned by palpable misrepresentation, and that misrepresentation was the immediate and sole impelling motive with the testator for altering his will. "What cause (says Cicero) could be more important, than that of the soldier, whose death being announced at home by a false messenger from the army, the father trusting to the report made another his heir and died." There was also another question arising upon that case, on the principles of the civil law, viz. whether a son could be disinherited of his patrimony (for by that law he had an inchoate sort of property in his father's effects) whom the father had neither appointed heir by his testament, nor disinherited by name? And this last reason seems to have been alone objection enough, as the will was by such omission what the civil law denominated "testamentum inof A. the legacy which she had given by her will to the children of B. prefacing such alteration thus, "As I know not whether any of them are alive, and if they are well provided for," though they were in fact living, A. was nevertheless held to be entitled, the words above cited being construed to mean that if they were living they were well provided for. should appear to constituted the But before such express revocation can be vacated The mistake upon such grounds, it ought, I conceive, to appear very be in that which distinctly, that the mistaken facts were the impel- impelling motive ling motives (2) to the revocation; and it must be to the revocation. remembered, that in the Attorney General v. Lloyd, b 3 Atk. 552. ficiosum." But the error as to the fact seems also to have been considered as a good ground of objection by Cicero. See also James v. Greaves, 2 P. Wms. 270. (2) If a man gives a legacy to his wife by the description of his chaste wife, evidence of her incontinence is not admissible; and if a testator, out of love and affection to a child, supposing it to be his own had given it a legacy, and it turns out that the child was not his own, in such a case, according to the opinion of Lord Alvanley, in Kennell v. Abbott, the legacy would not be revoked by the mistake; but where a legacy was given to a person under a particu lar character, which he had falsely assumed, and which alone could be supposed to be the motive to the bounty, as where a woman gave a legacy to a man in the character of her husband, whom she described as such, but who at the time of the marriage-ceremony with her, had a wife living, the legacy failed, 4 Vez. Jun. 802. Kennell v. Abbott. CC Lord Hardwicke observed, that "it is a very nice thing to say that because the reason a man gives for his devise is false, therefore his devise shall fail, and how far that will extend I cannot say." The case of the Attorney General v. Lloyd, was shortly as follows:-J. M. by his will, dated February the 8th, 1734, gave particular lands and his personal estate to be laid out in lands to charitable uses, and by a codicil, dated July 12, 1736, declared that if by the mortmain act the estates could not pass to those uses, he gave them to M. B. and his heirs. By a second codicil of the 17th of March, 1736-7, reciting that he had been advised that the devise of his lands was void, gave his personally to the same charitable uses, and his real estate to M. B. The mortmain act passed in 1736, and the testator died the 8th February, 1737. The advice upon which the tes-tator professed to proceed, appeared not to be well founded; for it was decided in Ashburnham v. Bradshaw, by the certified opinion of all the Judges', that a devise of lands to charitable uses, made before the statute of mortmain, notwithstanding the testator survived the statute, passed the lands. But Lord Hardwicke reasoned thus, on the principal case: "That the testator was so advised, was a fact, in his cwn knowledge, and he grounded the devise in the codicil upon this advice, and not upon c2 Atk. 36, and see the cases in note 1. Ed. Saund, the reality of the law; which, however that might turn out, he might be anxious to quiet a doubtful question, and to prevent its being litigated after his death, by settling it upon some certain foundation." But the principal reason which weighed with his Lordship was, that he doubted whether the new disposition by the codicil was put singly upon the point of law, the words of which were, "It being my intention that the charity should be continued, and being advised my personal estate can be given, I do, therefore, by this codicil, give my personal estate to the charitable uses before-mentioned; and I do hereby give my real estate to M. B." A case was made for the opinion of the Judges of the King's Bench, and that Court certified in favour of the devise of the real estate by the codicil. A remarkable case on the subject of revocations by codicil, occurred in the Court of Chancery, some years back, which is proper in this place, as shewing an important distinction as to this point between wills and codicils. The testator, by his will, gave two annuities to Sarah Crosbie. By a fourth codicil he revoked those annuities. Two days after the execution of that codicil, the testator made a fifth, expressly calling it a codicil to his will, by which he substituted one executor for another, and then declared that that was the only point in which he made any alteration in his will. * 4 Vez. Jun, 610. Crosbie v. Mac Douall. |