GIFFORD v. DYER, R.I., Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Sheffield, for the appellant, contended that the will was void, because 1. At the time of the making of the will the testatrix supposed her son, and only heir, to be dead, and, in consequence of this mistake, did not understand the relation which she bore to him whom the law recognizes as the proper objects of her bounty. Milnes v. Duncan, 6 B. C. 671; Byer v. Dixon, 1 Term. R. 285; Haydon v. Stoughton, 8 Pick. 536; 12 William III. ch. 7; Yerby v. Yerby, 3 Call. 289; Campbell v. French, 3 Ves. 321; Doe d Evans v. Evans, 2 Per D. 378; Doe d Lancashire v. Lancashire, 5 D. E. pp. 52, 58, 59; 4 Kent, 521; Dig. 28, 592. 2. Under the circumstances of this case, the law will infer a condition annexed to the will, that it should not take effect in the event of the heir being in life. Doe d Evans v. Evans, 2 Per. D. 378. And this rule is in accordance with the Statute 12 William III. ch. 7, which is declaratory of the common law, and was early adopted in our State, and also with the civil law, which is a part of the common law upon the subject of wills. A.C. Greene, for the appellee, contended, that the statute of William III., though at one time the law of the State, had been repealed by the Revision of 1798; that the appearance of Robert Gifford could not operate a revocation of the will, because it was not one of the statutory causes of revocation. Dig, of 1844, p. 231, sec. 3. That the will could not be considered void ab initio, because under our statute the will must stand, unless procured by fraud, or unless executed under a mistake apparent upon its face. 1 Story's Eq. Jur. § 179; Smith v. Maitland, 1 Ves. 363. That it could not be known that the testatrix would have made a different will if she had supposed her son living. The will contained numerous bequests, and the court would not carry out the intention of the testatrix by setting them aside in favor of her son. Campbell v. French, 3 Ves. 321. In the cases cited for the appellant, it was apparent from the will itself, what would have been the disposition but for the mistake. They were cases where the testator revokes a legacy, supposing the legatee dead when he is alive, and the court had held the revocation void, because by so doing it carried out the intent of the testator. But even if a will could be set aside by evidence dehors the will, it should not be done in this case, because it appeared from the evidence that the testatrix did not intend her son should take anything, even if alive.

Judges

GREENE, C.J., delivered the opinion of the court.

See more information ...

Smart Summary

Please sign up to generate summary.

ROBIN GIFFORD v. JOHN DYER, Ex'r.

Where a testatrix made a will supposing her son to be dead, when in fact he was alive; held, that the mistake could not be proved by testimony dehors the will, but in order to affect the will, it must appear upon its face, and it must also appear what would have been the will of the testatrix but for the mistake.

GREENE, C.J., delivered the opinion of the court.

It is very apparent in the present case, that the testatrix would have made the same will, had she known her son was living. She did not intend to give him anything, if living.

But if this were not apparent and she had made the will under a mistake as to the supposed death of her son, this could not be shown dehors the will. The mistake must appear on the face of the will, and it must also appear what would have been the will of the testatrix but for the mistake. Thus, where the testator revokes a legacy, upon the mistaken supposition that the legatee is dead, and this appears on the face of the instrument of revocation, such revocation was held void. Campbell v. French, 3 Vesey, 321.

GIFFORD v. DYER

ROBIN GIFFORD v. JOHN DYER, Ex'r.

Comments