#### *William A. Rosborough & Wife*vs. *James & Robert N.*Hemphill, *Ex’rs, et al.*

Testator having a wife and *six*children, three of whom, *to mt: J.*M., 33. 33., and J. H. were minors, and intending to ‘ so order and dispose of his estate, in such manner, as appeared to him just and equitable,5 devised and bequeathed, by the second clause of his will, to his wife $20,000, seven slaves by name, and other personalty, absolutely, and a tract of land for life, with remainder to his two sons, T. H. and J. H.: by the third clause he gave the ‘ *sixth*•part5 of his ‘ estate not heretofore devised or willed5 to his daughter M. K., with limitations : he made no further disposition of his estate, except that he bequeathed $1000 to a nephew; and he directed, that his ‘unwilled slaves5 should be divided among his ‘minor heirs,’ the value ‘ to be deducted out of their respective dividends5 of his estate; that three of his c legatees,5 naming his three children B. G., M. K., and T. H., who had received specified amounts out of his estate, should ‘discount5 those sums ‘out of their respective shares;5 and that his just debts be paid ‘ previous to a division5 of his *estate:*— Held) that after the widow had received her legacy of $20,000, and the slaves and other property devised and bequeathed to her, M. B. was entitled to *one-sixth*of the residue, and the remaining five-sixths, after payment of the legacy of $1000 to the nephew, and the debts of testator, were distributable, as intestate property, among the widow and six children, including M. B.: — the minor children taking the ‘ unwilled slaves5 as part of their shares, and the three children, named as having been advanced, accounting for their advancements.

In a Court of construction, evidence *aliunde*is inadmissible to show, that the testator intended to have a certain provision inserted in the will, and so instructed the draftsman ; that through haste and inadvertence it was omitted, and the testator executed the will supposing the provision to be in it.

*Before*Johnston, Oh. *at*Chester, July, 1852.

Johnston, Oh. The bill is filed by Mrs. Rosborough and her husband, for the construction of the will of her father, the late William Moffatt, and for an account of her interests in his estate.

The testator, a man of large property, consisting mostly of stocks, money at interest and other choses, died the 15th day of April, 1851, leaving a wife, Margaret, and six children — Thomas H., Josiah, Elizabeth B., (sometimes'called Bethia Elizabeth), Isabella H., Barbara B., wife of Robert G. Grier, and Martha M., wife of Wm. A. Rosborough, all of whom still survive. Of these, Josiah, Elizabeth and Isabella, were, at the date of his will, hereafter to be noticed, and still are, minors.

On the 14th of March, 1851, the testator duly executed his *96last will and testament, by the introductory words of which he announced his intention to - “so order and dispose of my estate, in such manner as, at present, appears to myself just and equitable.”

By the first clause, he appoints James and Robert N. Hemp-hill, his executors.

By the second clause he gives his wife $20,000, seven slaves by name, with their future increase, his live stock, farming utensils, wagons, carriages, &c.; his household and kitchen furniture, crop on hand and library. And he also devises to her for life, the plantation of over 700 acres where he resided, with remainder in fee, to his two sons, Thomas H., and Josiah.

He then proceeds :

“ Thirdly, the *sixth part*of my estate *not heretofore devised or*willed, I leave in trust with my executors, for the benefit of my daughter, Martha Mary Rosborough, to be kept out on loan, or judiciously laid out in bank stock, either in this State or North Carolina. The interest thereof, after defraying expenses, to be paid over,. annually, to her, for her benefit and support. And at her death, should she leave any issue, children born of her body, that should arrive at the age of twenty-one years, then the aforesaid estate, so willed and devised for her benefit, shall be legally claimed by them, and paid over to them, by my executors, or their successors, accordingly. But should it be otherwise,, and that she die childless, leaving no natural issue, then, the aforesaid estate, so willed and devised for her benefit, shall revert back to my other legal heirs, to be equally divided among them.”

The material provisions of the fourth clause are as follows :

“ *Fourth.*The *unwilled slaves*belonging to my estate, shall be, as equally as possible divided among my *minor*heirs,” (meaning Josiah, Elizabeth, and Isabella,) “when they become of age.” * * ** “*A fair value to be put on what each receives of said property, and to be deducted out of their respective dividends of my estate.” * * * “.The unwilled negroes to be kept by my widow, during the minority of my *97children, without any accountability, on her part, for their services.”

In the *fifth*clause, he enjoins it upon his executors to be “ careful and judicious about the loaning of the *money*of my *minor*children, to guard as much as possible against doubtful loans.”

The material parts of the sixth clause read thus :

*“ Sixth.*I have further to observe, that three of my legatees have received certain amounts of my estate, viz: Barbara B. Grier, *property*and cash to the amount of $5000; Martha M. Rosborough, in property, $1200; and Thomas Henry Moffatt, in cash, $5000; which sums * * * are to be discounted without interest, out of their respective shares of my estate.”

The seventh clause gives a pecuniary legacy of $1000, to a nephew in Indiana.

The eighth clause directs, that testator’s just debts be paid “ previous to the division of my estateand after declaring, that however defective, “ in form and legality,” the instrument might be, *“*it is my will,” proceeds to declare that, *“*should any of my legatees, attempt to defeat its plain meaning and design, by throwing legal difficulties in the way of its execution, then, I leave .it in the power of my executors to entirely disinherit them.

The will closes with the following clause, which it will be important to remember in relation to a prior will executed the 13th of February, 1850, which is set forth in the answer of some of the defendants.

*“ Ninth.*I do hereby revoke all former wills, and acknowledge in the presence of the subscribing witnesses, this to be my last will and testament, written on one sheet of paper,”

This will (of the 14th of March, 1851,) was produced by the executors, in the Ordinary’s Court for Chester District, admitted to probate, and letters testamentary granted them for its execution.

The debts, which were inconsiderable, and the pecuniary *98legacy of $1000, have been paid as provided for; and the estate is now subject to the interests of testator’s family.

A claim, on behalf of Mrs. Rosborough, is advanced under the third clause, and stated in the bill, to the effect, that of the property covered by that clause, and therein denominated “my estate not heretofore devised and willed,” “one-sixth part is bequeathed to the executors in trust for the benefit of your oratrix ; and, after said one-sixth part is set apart, Margaret Mof-fatt, the widow, is entitled to one-third part of *the remaining*jive-sixths, and your oratrix, and each of the other children of the testator, to an equal share of the remainder.”

It is very clear, that the property intended in the third clause, by the phrase, “ my estate not heretofore devised, or willed,” was so much of his estate of every description, as had not been bequeathed and devised in the preceding, or second clause. By the word heretofore, was meant *heretofore in that will*— equivalent to *hereinbefore.*The testator could not have referred to devises or bequests made in any prior will or wills, nor have intended to make the residue spoken of in this third clause, a residue dependent upon what he had disposed of in such former wills, and only to result after those dispositions were effectuated; because in this will he expressly revokes all former wills. It would be absurd to attribute to him an intention to allow devises and bequests which he intentionally abrogates, to so operate still on part of his property, as to determine and define the *residue*upon which the provisions of this clause of this will are to attach.

Then, taking up the third clause for construction, the question is, what is the extent of its dispositions ?

I presume, that the first impression of any one who had read that clause alone, without looking into the subsequent clauses— and who had never heard of any prior will — would be, that the testator had given one-sixth of the property referred to in the clause to his daughter, Mrs. Rosborough, in trust, with limitations ; and that the other five-sixths were left undisposed of.

I conceive that, apart from any idea of mistake on the part of the testator, and assuming that the language of this clause *99gives a true expression to his meaning, it would be impossible to give any other interpretation to the clause, standing by itself, than that he had given a sixth of this property to Mrs. Rosbo-rough, and had not given the remainder of it to any body.

Then, let us resort to the succeeding clauses, as a context, and see if they furnish any thing from which a judicial judgment to the contrary of this can be drawn, conformably to sound principles of interpretation.

In resorting to (he subsequent clauses as a context, it should not be forgotten that they are the context *of this will.*The same clauses situated in *another will,*and connected with *another text,*which does not contain *all the words*of the text now under construction, may have a very different meaning and application, as was said in the late case of *McCall*vs. *McCall,*from Darlington *(a)***— for as the context acts upon the text, so necessarily must text upon the context.

The 4th clause of this will is not repugnant to the idea that there is a partial intestacy under the 3rd. The “unwilled negroes ” are to be allotted to the “ minor heirs,” by way of satisfying their “dividends” of the estate, and their value deducted out of said “dividends.” Some observations were made respecting the time at which this was to be done. It was said it was to be done at the majority of the minors. But, I do not perceive how that difficulty, if it really exists in the will, properly administered, affects the question now under discussion— which is, whether the shares or “ dividends ” of the estate to be taken by the minors under the 3rd clause, accrues to them by testacy or intestacy. The difficulty referred to, would be equal, and indeed, precisely the same, whether they take their shares or “dividends” by testamentary disposition, or by operation of law — by the will or by intestacy. The objection, therefore, determines nothing on the question of testacy or intestacy. I suppose, however, that in the administration of the will — which is not a matter strictly involving *doctrine*— the aggregate value of the negroes, at the testator’s death, should *100be deducted from the aggregate to which all the minors would be entitled under the 3rd clause, (whether testate or intestate) and set apart for the minors, for subdivision among them, with fair compensations, at their majority. This, however, by the way. What I intended to observe is, that the terms “unwilled negroes,” “minor *heirs”*and “dividends” are, at least, not repugnant to the notion of an intestacy under the 3rd clause of the will, and unless they are sufficiently repugnant, to raise by necessary implication a construction of that clause different from that which its own terms import, they leave it as it was before. It might be contended, indeed, (though I imagine that would be allowing too much influence to mere terms,) that the words, to which I have referred, rather serve to fortify than to rebut the idea of intestacy under the 3rd clause: that they import that, notwithstanding all that is contained in the 2nd and 3rd, (which are the only disposing clauses which precede the 4th, where the words occur), there still remained “ unwilled ” property, to “ dividends ” of which the minors were entitled as “ heirs.”

It was said, however, that the will intended that the minors should receive an equal share of the whole property covered by the third clause; that this was evidenced by the direction for equal partition of the negroes, and for the deduction of their value out of the dividends. If this is so, it necessarily excludes Mrs. Rosborough’s claim for more than the one-sixth of that property given to her. But is it so ? It is a mistaken assumption that the testator (who has merely declared that he wished to dispose according to his notions of justice and equity, not equally,) intended thát each child should receive equal benefits tmder his will. That idea is rebutted by the remainder devised to his two sons, in the second clause, beyond what the other children were to get. And, if *their*devise is not to be derogated from, in order to bring up the minors to a position of equality; if the two sons1 (one of whom is among the minors, on whose . behalf this argument of equality is used,) are entitled to hold their devises, and still come in for their shares or “ dividends ” (whatever this may be,) under the third clause — upon what *101principle is it, that Mrs. ftosborough’s bequest of one-sixth, expressly given to her in that clause, is to exclude her from participation in the five-sixths which are not disposed of? The truth is, there is nothing in the 4th clause, whose provisions we are now examining, which intimates that the minor children are to receive an equal dividend of the whole property covered by the 3rd clause, (the residuary property as it has been denominated,) but only an .equal dividend of so much of it as that clause does not dispose of.

There is nothing, that 1 can perceive, in the fifth clause, to affect the construction of the third. We proceed to the *sixth.*

What is there in this to change the natural interpretation of the third ?

In cases of partial testacy, children who have been advanced are not bound, in the division of the intestate portions of the estate, to account for their advancements, unless expressly required to do so by the will. (b) The testator in this will directs that three of his children, (loosely calling them legatees, which only two of them are,) shall account; and that their advancements shall be discounted out of their *“*shares ” of his estate. Does this prove that the shares are testate or intestate ? It is a trifling evidence that they were regarded as intestate, that the account is to be “without interest,” which exactly squares with the law of distributions.

It remains to consider the introductory words of the will, by which the testator announces an intention to dispose of his estate. Such phrases are a make-weight in doubtful cases. They may remove the impression of intestacy, when that is slight, and give an extent to dispositions that are equivocal, so as to carry the whole estate. But I conceive, that there is no word or sentence in the third clause, professing to dispose of the five-sixths.

In opposition to all that has been urged from the subsequent clauses, which I have examined, and from the preamble, as a context, there is a clause, (the 7th) affording very strong grounds *102for holding a partial intestacy. That clause contains a pecuniary legacy. If the third clause disposed of the residue of property left from the second, it absorbed the whole estate, and gave interests in it superior in degree to this legacy. How, then, did the testator contemplate that this legacy should be paid? It must, on the defendants’ construction, have been intended as an empty compliment. It was not so, however, if there was a partial intestacy, furnishing a fund for its payment.

I have thus come- to the conclusion, upon the construction of this will, apart from all extrinsic circumstances, that the third clause disposes of only one-sixth of the property left untouched by the second clause, by giving that sixth to Mrs. Rosborough, upon the terms expressed by the testator. The other five-sixths are not disposed of, and she is entitled to participate in them. Nothing but an operative disposition of that part can exclude her from her right, as a distributee, to take a share of it. Even if the testator had given her the sixth, *“ and no more”*unless he disposed of the residuary five-sixths, the *law*gave her an interest in them. (c).

I have preferred to consider the will, in the first place, apart from extrinsic circumstances, because I conceived that in that way, the meaning inherent in its terms and language would be more clearly perceived.

My construction of it I have stated; and under that construction the five-sixths are to be considered as intestate. Of course, as intestate, these five-sixths are the primary fund for the payment of debts and expenses, and the pecuniary legacy of $1000. The pecuniary legacy of $20,000, given to the widow by the second clause, stands upon a different footing. It is first to be allowed, according to the terms of the will, in order to ascertain what is the residuary property, upon which the third clause operates. The intestate portion, therefore, of that property is not the fund for its payment, as in the case of the legacy of $1000, given by the 7th clause. In the distribution of the residue thus left, the widow’s third would be set apart. *103It is stated that she has released it. The release has not been furnished me, and I cannot know whether it is a general release, or a release operating as an assignment to particular children. If the latter, then these particular assignees are to stand in her shoes and take her third. If the release is merely general, then all the children will take that third; hut as widows have no concern in advancements, this third must be distributed by itself. As to the other two-thirds, the advancements charged in the will against Mrs. Grier, Mrs. Rosborough, and Thomas H. MofFatt, must first be brought into the computation, without interest, and then a division made among all the children.

Such is the decree of the Court, unless upon an examination of the extrinsic circumstances, to which'I now proceed, it shall be found that there is any thing calculated to change the import of the will, as I have construed it.

It appears, that the testator was dissatisfied with the marriage of Mrs. Rosborough. On the 13th of February, 1850, he had drawn up and executed another will, which was in full force when the present will was executed. It was sealed up and deposited by him in his desk.

In its general features it resembled this will by which it was revoked. It differed, however, from the latter in the disposition of the remainder, engrafted on the devise to the wife. That remainder was given by the former will to Josiah alone, instead of Josiah and Thomas EL, as it is in the latter; and it contained a conditional power to the widow to alienate the land in her life-time, which is omitted in the latter.

It devised lands in Indiana and York to Thomas H. These were sold by him after its execution. The omission of these lands in the new will necessarily followed from the sale. But the sale did not render a new will necessary, because the old will contained a provision to meet the ' case ; in which it was declared that, in case of such after alienation, the devisee should take the proceeds in place of the land sold.

There are some other minor differences between the old and the new will, which I deem it unnecessary to notice.

*104There was, however, one capital provision contained in the third clause of the old will, which is omitted in the third (and corresponding) clause of the new.

The third clause of the former begins thtís :

“Third. All the residue of my estate, I leave to be equally divided among *my six children,*viz : Barbara B. Grier, (&c., naming them) subject to such regulations as I shall hereafter distinctly lay down and define, viz : that the distributive share of my estate that would fall to Martha Mary Rosborough, I leave in trust to my executors, tó be kept out on loan,” &c., and then proeeeds throughout the clause, as in the present will.

It appears from the testimony of the Reverend Laughlin McDonald, a very intelligent witness, that the testator was suddenly taken ill on the night of the 13th of March, 1851, (the night preceding the execution of the last will,) and was obliged to call in his physician. Either that night or the next morning, Mr. McDonald was sent for. When he arrived, the testator informed him, that in consequence of some alterations in his property, he wished him to draw up a new will for him, corresponding to the existing will, with some alterations. Mr. McDonald distrusting his skill in such matters, wished for time, and desired that some legal gentleman should be sent for. But the doctor, taking him aside, told him there was no time to be lost; and he yielded. Upon his signifying his assent, the testator caused the existing will to be brought from his desk, and unsealed. The room was then cleared, and he proceeded to his task, taking directions from the testator.

After he had completed the draft, he read it clause by clause to the testator, and then the whole consecutively, and he assented to it, and executed it before the requisite number of witnesses, of whom Mr. McDonald was one. It was then enveloped and sealed up with the prior will, and put back in the desk.

Some time the same day, and after the will had been put away, the testator expressed dissatisfaction at part of its contents, and caused it to be brought out again. Mr. McDonald and the other attesting witnesses were still present. The will *105was again either read to the testator, or was read by him; and he with his own hand, made certain erasures in its first page, leaving its language as it now reads. It was then, as thus altered, subjected anew to the formalities of execution and attestation, and was put back with the prior will, as before.

Testator lingered until the 15th of April, when he died, as before stated. After his death the two wills were found, sealed up together in his desk.

I allowed testimony as to any thing relating to the posture and condition of the estate of the testator, and to the state of his family. I am, and always have been satisfied, that such testimony is admissible. The Court which is to interpret a will, is aided in the application of its provisions, and sometimes in the interpretation of its language, if it is enabled, by testimony, to place itself in the same circle of circumstances, and to surround itself by the same field of subjects, which were known to the testator, and by which he was surrounded when he uttered his will. All wills have a tacit reference to the circumstances in which their authors stand when they make them. “ In considering questions of this nature,” says Mr. Wigram, (d) “it must always be remembered, that the words of a testator, like those of any other person, tacitly refer to the circumstances by which, at the time of expressing himself, he is surrounded. If, therefore, (when the circumstances under which the testator made his will are known) the *words of the will*do sufficiently *ex-press*the intention ascribed to him, the strict limits of exposition cannot be transgressed, because the Court, in aid of the *construction*of the will, refers to those extrinsic collateral circumstances, to which it is certain the language of the will refers. It may be true, that, without such evidence, the precise meaning of the words could not be determined; but it is still *the will*w-hich *expresses*and ascertains the intention ascribed to the testator. A page of history, (to use a familiar illustration) may not be intelligible till some collateral extrinsic circumstances are known to the reader. No one, however, would imagine that he was *106acquiring a knowledge of the writer’s meaning *from any other source than the page he was*reading, because, in order to make that page intelligible, he required to be informed to what country the writer belonged, or'to be furnished with a map of the country about which he was reading.” As a further illustration of the clearness which the simple presentation of facts imparts to terms previously obscure, I would refer to the Sacred Prophecies. Here Divine Wisdom, actually looking at the future facts and events, has frequently, for the wisest purposes, foretold and described them in language, unintelligible until they arise, but which, after they have arisen, become at once clear and unmistakeable; so that the exact applicability of the terms, them- ■ selves, is rendered apparent.

I therefore, allowed evidence of the description I have staked.

But, then, it was proposed to prove, that the intention of the testator was, to put a provision, for. the equal division of the residuary property among all the children, into the third clause of this will, as it was in the prior will; that hé so instructed the draftsman; that it was omitted through haste and inadvertence ; and that the will was executed under a mistaken supposition that the provision was'inserted. This proof being objected to, I excluded it. It is possible the witness might have proved these facts, if allowed to proceed; but being clearly of opinion that the evidence was incompetent, and the press of business .requiring the Court to save every moment of its time, I did not take the testimony subject to exception, as is my general practice, but sustained the objection to it at the hearing.

I am still satisfied with my decision on this point. If the proof exists, it is incompetent.

We have a circuit decision, (in the case of *Geer*vs. *Weinds,*(e) I believe,) -that parol evidence may be heard in this Court, for the purpose of enabling the Court to insert the name of a legatee intended to have been inserted in the will, but omitted by mistake. This is to the very point; and if I had confidence in the decision, or if it were authority, I must yield to it. The *107point, however, was but slightly considered in that case; the Court manifestly acted under a strong inclination to obviate the peculiar hardships presented ; and the decision was, probably, not repugnant to the wishes of all parties, and was, therefore, not appealed from. I do not believe it has ever been relied on, or followed in subsequent cases. It appears to be contrary to safe principle, and to authority.

When parol testimony is offered in the case of a will, its competency must depend upon the purpose to which it is directed. *“*Any evidence is admissible,” says the elementary writer before referred to by me, (f) “ which, in its nature and effect, simply explains what the testator *'has*written ; but no evidence can be admissible, which, in its nature and effect, is applicable to the purpose of showing merely what he *intended*to have written.” *“*The distinction between evidence which is ancillary only to a right understanding of the words to which it is applied, and which is, therefore, simply *explanatory of the words*themselves, and evidence which is applied to prove *intention itself,*as an independent fact, is broad and palpable.” *“*Where the inquiry is, what the words of a will express, as distinguished from what the testator meant by the words, evidence of *declarations of*intention, of *instructions*given by the testator' for preparing his will, or any evidence of a similar nature, is obviously inapplicable to the point of inquiry.” *(g)**“*The judgment of a Court in expounding a will must be simply *declaratory*of what is *in*the will.” *(h*)

It is conceived, that if the effect or purpose of parol evidence is to introduce into a will, matter which it does not contain, so as to constitute it part of the will; to give to the will, in itself considered, operative elements, language or provisions, which were not in it before, then such evidence is incompetent in a Court whose sole functions is to expound wills, whether it be competent or not, in Courts entrusted with the probate and establishment of testamentary papers. .. Such evidence is very *108different from that which is offered for the purpose of affording a light, by which what is *in*the will may be read, understood, and applied ; which is always proper.

Mr. Wigram, in enumerating thirty-six cases, in which it is not competent to introduce extrinsic evidence, (i) includes among them, those, “ of filling up a total blank in a will;”. “ *of inserting a devise omitted by mistake*“ of reconciling conflicting clauses in a will;” “ of construeing the will *with reference to the instructions given for preparing it f*“of controlling a technical rule of verbal construction;” “of increasing a legacy;” “of adding a legacy to a will;” “of adding to, detracting from, or altering the will,” “ or (generally) of proving intention.”

It appears to me, that the tendency of ordinary minds is to overlook or undervalue the danger of allowing parol to add to, to contradict, or to vary written instruments. Even when there is no statute requiring writing, it leads to endless litigation, to uncertainty?, to danger of mistake, and to falsehood; and, therefore, is so subversive of justice in general, that experience has compelled Courts to disallow it. But when we consider that we have statutes relating not only to wills of realty, but to those of personalty also; statutes, (which conceptions of sound policy, founded on profound observation and experience, have induced the legislature to enact,) requiring them to be, not only reduced to writing, but executed with solemn formalities, attested by witnesses ; how can we fail to see that the introduction of parol evidence, to add to, or detract from wills thus executed, prostrates the policy of the country, and repeals its enactments ? How easy to destroy the true will of a party, in his grave, and no longer able to speak for himself, — a will, which he has deliberately and publicly executed and acknowledged, as required by statute — if it be left to witnesses to say, (perhaps laboring under mistake or misconception, themselves,) that his intention was different from his words; that a clause which is in his will is improperly there, or that a clause, or part of a clause, which *109is not there, was omitted by mistake, and should be inserted. The witness, in many cases, may speak the truth ; and I am sure, the witness, in this instance, would have done so. But the danger is, that other witnesses may not speak the truth. To cut up fraud and perjury by the roots, the legislature has said, no witness shall speak on such a point. The testator alone shall speak, and speak in his will.

“ It is said, (and correctly) ” says the judicious writer, whose work I have so often quoted, *“*that the statute, by requiring a will to be in writing, precludes a Court of Law from ascribing to a testator, any intention which his written will does not express ; ■ and, in eifect, makes the writing the only legitimate evidence of the testator’s intention. No will is within the statute but that which is in writing ; which is as much as to say, that all that is effectual and tó the purpose, must be in writing, without the aid of words not written.” (k) “ How,” he asks in another place, (l)) “can it be said, that the will is in writing, when it is admitted that the will must be inoperative unless the *intention*of the testator be proved *aliunde*?”

" I might rest the argument here. But there is still another objection to the evidence proposed. Its object is two-fold ;— first, to show that provisions were omitted which were intended to have been inserted in the will — and so have these provisions allowed and established as part of the will, — and, (second), to show that the testator executed his will, laboring under a mistake as to its contents.

The objection to all this, is, that this is not a Court for the establishment of wills or clauses of wills.

If the clause which it is proposed to add, can be added, since the statute of 1824, the evidence should have been produced in the probate Court, and the will should have been established with that addition. If, since the statute, written instructions can be established as testamentary, in the ecclesiastical Court,. the instructions should have been introduced and proved there.

*110If, on the other hand, the testator labored under the mistake imputed to him, the will of 1851, was no will. The evidence of mistake would have tended to defeat its probate; and should have been offered to defeat it. If defeated, the prior will was not revoked by it, and should have been established in its place.

But the will of 1851, has been admitted to probate by the competent Court; and its judgment, until rescinded, or reversed, is a judgment that the will, in the form in which it has been allowed, is the .true and only will of the testator. (m) My province is only to expound and execute the provisions of that will.

' I have now closed my judgment in this case. It has been to me a painful duty; because in upholding what I conceive to be sound and necessary principles, I have constantly felt that the justice of this particular case has not been attained. While a sense of official duty, and of the obligations I was under to sustain those principles upon which the general interests of the community depend, compelled me to the results announced in this judgment — since to have sacrificed those principles, would have been to sacrifice the law, — and, in it, the great body of justice which it, and it only, can afford — I could never for a moment, divest myself of the impression, that in performing this duty, I was sustaining a claim, which, however legal, was ungracious. It is not, however, as a man that I sit in this Court. I have no right to act upon my impressions, or affections, as a man. What I am to do, I am to do as a Judge— governed not by “individual belief, but by judicial persuasion.”

On the whole, I adhere to the decree, which I announced conditionally, in the course of this opinion ; and it is hereby decreed accordingly.

Other questions not included in the judgment are reserved; and among them the costs of this suit; and the question, whether the funds and property to be taken by Mrs. Rosbo-rough should not be also settled, and the terms of the settlement. *111Perhaps the parties may agree. . If riot, let it be considered on reference.

As one of the executors is the Commissioner of the Court, the parties may propose an order of reference of the accounts, if desired, with other matters proper- for inquiry,' to some other person as referee.

The defendants appealed, and now moved this Court to reverse the decree, on the grounds: .

1. Because the Chancellor erred, in refusing to receive in evidence a former will of testator, by which the will in controversy was drawn, and the evidence of the scrivener' who drew the will, to show an omission or mistake in said will.

2. Because, according to the true construction of said will, the testator died intestate as to no part of his estate, and the complainant, Martha M. Rosborough, is entitled to no part of said estate, excepting the one-sixth part directed by said will to remain in the hands of the executors as her trustees.

*McAliley,*Herndon, for appellants,

*Dawkins, Williams,*contra.

(a)

 4 Rich. a*. 447.

(b)

*Snelgrove*vs. Snelgrove, 4 Des. 274.

(c)

 Snelgrove *vs.*Snelgrove, 4 Des. 274.

(d)

**Wigram on Wills, Prop. V. PI. 76. 3d. Loud. Ed.

(e)

 4 Dos. 85.

(f)

 Wigram on Wills, PI. 9, 10. See also Prop. V. PI. 76.

(g)

 Wigram, Pl. 104.

(h)

 Wigram, PI. 120

(i)

 Wigram, H. 121.

(k)

**Wigram, Pl. 9, citing *Brett*vs. Rigden, Plow. 340; 2 Vern, 625; Hobart, 32; *Hiscocks*vs. Hiscocks, infra, Pl. 183.

(l)

**Wigram, Pl. 153.

(m)

 So© also the Statute of 1823 (6 Stat. 209,) as to the effect of prohate as it respects real estate.

The opinion of the Court was announced- by

Johnston, Ch.

We have attentively considered this appeal: and it appears to us impossible, upon any safe principle, to come to any other conclusion than that attained by the Chancellor.

It is therefore, ordered, that the decree be affirmed for the reasons given therein : and that the appeal be dismissed.

Dunkin and Waudlaw, CC. concurred.

*Appeal dismissed.*