Goode v. Goode
Decision Date | 31 March 1856 |
Citation | 22 Mo. 518 |
Parties | GOODE AND OTHERS, Appellants, v. GOODE AND OTHERS, Respondents. |
Court | Missouri Supreme Court |
1. A court of equity has no jurisdiction to reform a will on the ground of mistake by the draughtsman in drawing the same.
Appeal from Franklin Circuit Court.
Petition to the Franklin Circuit Court praying for the reformation of a will. The petition is as follows: '
The whole passage, from which above extract is taken, is as follows: “After all the bequests are paid and satisfied, the residue and remainder of my estate I wish distributed among all my children, share and share alike.”
The petition was demurred to by the defendants; the demurrer was overruled, and judgment given for defendant; defendant appealed to this court.
T. Polk, Frissell and C. Jones, for appellants.
1. For the purposes of this case it stands admitted by the record that the mistake set out in the petition was in point of fact made, and in the manner there stated. Now one of the grand branches of equity jurisdiction is mistake. (1 Story's Eq. § 110, et seq.) 2. A mistake in the name of a devisee may be corrected. (Beaumont v. Fell, 2 P. Will. 140; Dowset v. Sweet, 1 Ambler, 175; Parsons v. Parsons, 1 Ves. jr., 266; Smith v. Coney, 6 Vesey, 42.) 3. So, a mistake in the number of the devisees may be corrected. (Stebbing v. Walkey, 2 Bro. Ch. 85; 2 Vesey, 560; Tomkins v. F., cited 3 Atk. 257; Hampshire v. Pierce, 2 Vesey, sr., 216.) 4. So a mistake in the thing willed may be rectified by a court of equity. (Selwood v. Mildway, 3 Vesey, 306; Riggs v. Myers, 20 Mo. 239.) 5. The court below should have held that so much of the writing as is a mistake, and was inserted in the testator's will by the draughtsman, through mistake, was not a part of his will, and should not have sustained the demurrer. .) And by declaring the portion of the writing, inserted in the will by mistake, not to be a part of the testator's will, the intention of the testator, as shown by the petition, and as is admitted by the demurrer, would have been completely carried into effect. For, by a subsequent clause in the will, all his children, share and share alike, are made residuary legatees; and the clause that was inserted in his will by mistake gives the purchase money of the mill tract, farm and mill (which he willed to be sold) to a part of his children, Langston, Nathaniel, Frances, Virginia and Margaret, instead of to all of his children, share and share alike, as it was the intention of the testator it should have been. 6. The will, as it stands in connection with the codicil, is contradictory and in conflict with the codicil, and said will and codicil can not have a sensible construction together, unless the portion of the will inserted by mistake be held to be no part of the testator's will. 7. It is admitted by the record that said will, as it stands in connection with the codicil, is ambiguous and uncertain, and contradictory as to said clause, and the same can not receive a...
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