Keedy v. Nally

Alvey, C. J., delivered the opinion of the Court. The principal object of the bill in this case is to procure the reformation of a contract set forth as having been ³¹³ made between the plaintiff and Jacob E. Smith, since deceased, and of whose will the defendant is executor. The agreement is rather a remarkable one, and was made as far back as the 26th of April, 1862. Smith, one of the parties to the agreement, died in April, 1883, having made his will in July, 1882, and the bill in this case was filed in January, 1884.

The relation subsisting between the parties to the agreement was that of father-in-law and son-in-law; and the agreement would appear to have been made to compose differences and contentions between the parties which had arisen while living together as members of one household, and which differences had been carried to the extreme of threatened or attempted personal violence to each other. The bill sets forth the agreement by which this angry strife was composed, to only some portion of which agreement it will be necessary to make special reference in the course of this opinion. It appears that Potter, a magistrate, was called in to act as draftsman of the agreement. The agreement, after setting forth certain terms upon which the plaintiff was to leave the farm of his father-in-law Smith, and the latter was to take care of and protect the plaintiff’s wife, and his personal property left on the premises, contains this clause : — “And the said Hally on his part doth hereby agree that he will leave the premises of the said Smith, to return and see his wife, or to do any work for the said Smith which he may desire ; and also promises that he will never appear in Court to prosecute the case of recognizance for the keeping of "the peace against the said Hally; and the said Smith agrees that he will never cut her, the wife of said Hally, off any legacy which she may or shall inherit in the. estate of him, the said Jacob E. Smith.” It is in regard to the clause just quoted of this inartificially drawn and qheerly phrased agreement that the mistake is alleged to have occurred.

It is very manifest ³¹⁴ that it is impossible to gather from the terms employed any definite and certain meaning of the parties; and if any intelligible term is to be incorporated into the contract, as a substitute for the one in regard to which the alleged mistake occurred, that must depend entirely upon extrinsic evidence. It is shown by the evidence that the parties to the agreement were reconciled, and lived apparently friendly, until the last four or five years of Smith’s life, when he became offended, and remained so to the time of his death, because, as he supposed, Rally and his wife had maltreated or taken the advantage of his afflicted son John; and by his will he cut Mrs. Rally off with the nominal legacy of five dollars. The plaintiff by his bill charges that the draftsman, Potter, through inadvertence and mistake, inserted the words that we find in the agreement, which, as alleged, are different, and express a different meaning and purpose from that which was intended and agreed upon by the parties, “and that the true design and intention of the parties has been frustrated by such mistake in this,” that instead of the words actually inserted, apt words should have been inserted to express the true meaning of the parties, which was, “that the said Susan Rally should inherit or receive, an equal part of the estate of the said Jacob E. Smith at his death,” and which said purpose was expressed to the draftsman, and who was then and there requested by both of said parties to commit the same to writing. As will he observed, it is not alleged with whom Mrs. Rally was to receive an equal share of the estate; but with the view we have of this case this omission is unimportant.

The defendant, by his answer, admits the death of Smith the testator, and the making and admission of his will to probate, but says that he cannot admit any of the other matters and things set forth in the hill of complaint, but de ³¹⁵ nies all the material allegations therein set forth. He avers, however, that the agreement was written as the parties thereto directed it to he written, and that the same was read over to them before they signed it, and they gave it their full approval; and that there was in fact no correction or reformation to he made. He denies that the agreement can he so changed as to affect or control the disposition made by the testator of his property by his will; and he relies upon the laches of the plaintiff, and the great lapse of time since the making of the agreement before the institution of this suit. The Court below decreed a reformation of the agreement, and, instead of the terms originally incorporated therein, decreed that the following provision he substituted therefor, to wit: “And the said Jacob E. Smith agrees that the said Susan Hally, wife of the said Ezra Hally, shall receive at the death of him, the said Jacob E. Smith, an equal portion or share of his estate along with the other children of the said Jacob E. Smith.” The principal witness in the case upon whose testimony this substituted provision was decreed to he incorporated in 'the agreement, was Potter, the draftsman.

He was called upon, after the lapse of twenty-two years, to furnish evidence, from his unaided memory, of the precise agreement and understanding of the parties, which, according to the contention of the plaintiff, he either failed to apprehend, or to express, at the time the agreement was written. He admits that he cannot now pretend to give the precise words of the parties, because of the great lapse of time since the transaction; hut he does say that the understanding was that Mrs. Hally should have an equal share