*Cheraws*

Tried before Chancellor James.

#### John Geer and Sarah his wife, *vs.*the executors of Samuel Winds, deceased.

¿ase xrr.

The name of one of the children of the testator being- omitted in his will by mistake, the court permitted proofs of the mistake, and rectified it.

The return, of Commissioners in the division of lands, on writ of partition, will be supported by the court, unless shewn clearly tobe erroneous and unjust.

In this case the only question made for the consideration of the court, was, whether the name of Sarah, the complainant, was not omitted by mistake, in the will of the testator, Samuel Winds, as a general legatee with the other legatees therein named ; and whether the defect could be supplied by parol evidence. The judge was of opinion, that the proofs offered were sufficient to establish, the fact, that the name of Sarah, the complainant, was omitted by mistake, and that the defect could be rectified, upon parol evidence 5 whereupon the following decretal order was made:

ei The bill and answers being read in this case, the court is of opinion that the name of the-said Sarah, was omitted in the will of the said Samuel by mistake. It is therefore ordered, that the defendants (executors of Winds) do account with the commissioners for the personal estate of tho said testator ; as also the rents and profits of the real estate, and that the said complainants do recover their share thereof $ and also, their costs in this behalf expended.-*’

There was no appeal from this decree.

Afterwards a writ of partition, for dividing the real estate, was issued to the commissioners, On the return of the partition, made by the commissioners of a tract of land on the river, it was moved to he confirmed. This motion was opposed by Mr. Witherspoon, on the ground shat 1 he division was unequal and unjust.

*86JUNE, 1810.

Chancellor Dcsaussuve, before whom the motion to confirm the partition was made, was of opinion that it should he confirmed. He stated that the partition of lands by the commissioners, residing on the spot, and possessing local knowledge of the property, was instituted for the benefit of the citizens. It was a species of domestic tribunal, similar in some degree to arbitration • and that their acts ought to bo supported, unless shewn clearly to be erroneous and unjust. That the division made by the commissioners in the present case did not appear to be so erroneous as to induce the court to set it aside. Several witnesses certainly had stated that they thought it an unequal division : but one of them said, he did not know that a better division could be made, and some of these witnesses acknowledge themselves incompetent judges *;*none of them were acting under the obligation of an oath, in their examination of the land $ nor was their attention drawn thereto particularly by any duty. Whereas the commissioners were men of the highest character for general integrity,, and they had a particular knowledge of the land in question. They were acting under the sanction of an oath, and made very particular examination of the land ; and Mr. Chapman swore he believed as fair a division was made as could be done.

Let the return of the commissioners be confirmed,