voked by counsel has no application. This is the case of an alleged mistake on the part of testatrix and its legal effect on probate alone.

[22] While I am bound to hold, in view of the decisions of this state already noticed, that there are some kinds of mistake on the part of testatrix, such as mistakes of draftsmen in preparing wills or of engrossers in the engrossment of the same, or mistakes induced by fraud on testators, which may possibly be corrected in this court in a proper case, yet the mistake of this testatrix concerning the legal effect or revocability of her trust conveyances is not such a mistake as can be corrected here. The same point is adjudged in England. In bonis Davy, 1 Sw. & T. 263; Guardhouse v. Blackburn, 1 P. & D. 109; Harter v. Harter, 3 P. & D. 11; Collins v. Elstone, [1893] P. 1; Beamish v. Beamish, [1894] 1 Ir. 7; Theobald on Wills, 719. The true principle applicable in this cause is, as I conceive, well stated in the sixth edition of Jarman on Wills, 486, and in this cause that passage has my approval:

"If, however, the testator knows the contents of his will, and erroneously supposes that it will not have the effect which the law gives it, the general rule applies, and evidence of his real intention is not admissible."

In other words, such a mistake as that here alleged is not the basis of a correction by a court of probate. The cases of established intention of testators to make wills other than those actually made are not to be mistaken for cases where testators have placed in their wills just what they intended, but with effects different from those which they intended. The latter class of mistakes are not remediable in a court of probate under the existing statute of wills. This case belongs to the latter class.

The principle of all the American and English adjudications bearing on the point before me has now been briefly considered. It remains to consider two remarkable instances cited from the Roman law in the very elaborate argument of the learned counsel for Mrs. Eisenbach.

[23] I may remark that there are many occasions in this court when it is held that the civil or canon law well serves to illustrate a derivative principle frequently applied in this court, or, in the total absence of modern authority, as a guide for this court. I referred to the authorities on this point in my judgment on the Will of Van Ness, 78 Misc. Rep. 592, 139 N. Y. Supp. 485. But I fear the instances now cited by the learned counsel in this matter are not within the limitations there stated. Let us examine them. In the Latin of counsel's argument, the first instance is taken from the De Oratore of Cicero (1, 38, 175) as follows:

"Pater credens filium suum esse mortuum alterum instituit hæredem; filio domun redeunte, hujus institutionis vis est nulla."

I do not find the exact quotation in the De Oratore. But the case is there mentioned in other words not materially different. On its face this case would appear to be addressed to a mistake of fact by a testator, and to be very much in point here, but it is not so.

Cicero, it will be observed, does not furnish us with the judgment in the case. The judgment is, however, given by Valerius Maximus (VII. 7, 1). The son in question was a soldier, and he succeeded in the case. By the merest chance I happened to have read in a late book a discussion on this very case or I should know little of it. Girard, Manuel de Droit Romain, 853 et seq. The case in Cicero did not turn at all on a mistake of fact on the part of testator, but on the law relating to the exherison of a son. At that time a son was a sort of joint proprietor with the father. It was a case of condominium, and unlawful for the father to disinherit a son. It was on that ground the judgment proceeded, and not on the ground of a mistake of fact of the testator.

The second instance cited to me by counsel is taken from the Digest (28, 5, 92). In the language of counsel for Mrs. Eisenbach this case is as follows:

"A striking case on revocation under a mistake is stated in the Digest. Lib. 28, tit. 5, 92. The testator named Pactumeja Magna as his sole beneficiary, and her father as substituted beneficiary after her. The father was put to death, and the report was that the daughter, too, had been killed. The testator then modified his will, explaining: 'Quia heredes quos volui habere, mihi continere non potui Novius Rufus esto.' As a matter of fact the daughter had not been executed and survived the testator. The inheritance was decreed to pass to her. The law as to wills was precisely the same as upon the point of revocation. Code, 6, 23, 5."

Whether this citation from the Digest also refers to the law relating to exheredatio I am not sufficiently learned to determine for myself, and I do not think it important here to take time to investigate the matter. There are some things, however, in this second case, mentioned in the Digest, which also point to the law relating to exherison. Justinian, or his adviser, Tribonian, in a decree (C. 6, 28, 4) placed daughters in the same position as sons. But if it were otherwise, in this matter and the case in point, I must go by the latter cases in our own courts or in their exemplar, as there is modern authority and the point is no longer open. This being so, the Roman law is in any event quite out of all consideration. It is only in the instance of original question devoid of modern authority that we may resort to the civil or canon law. Jenks' History English Law, 195; Matter of Youngs, 73 Misc. Rep. 335, 339, 132 N. Y. Supp. 689.

The proponents are entitled to a literal probate of the script propounded as the last will and testament of Mrs. Henriette Swartz. For the reasons fully stated, no construction is necessary or proper at this time in this court.

Decree accordingly.

MEMORANDUM DECISIONS

ALBANY HOSPITAL v. ALBANY GUARD- | 1912.) Action by Mabel H. Angell against the
IAN SOCIETY AND HOME FOR THE Town of Chatham.
FRIENDLESS et al. (Supreme Court, Appel-

late Division, Third Department. December ed, with costs.
30, 1912.) Action by the Albany Hospital
against the Albany Guardian Society and Home
for the Friendless and others. No opinion. In
terlocutory judgment unanimously affirmed,
without costs. See, also, 131 N. Y. Supp. 1017.

BAYSIDE NAT. BANK, Respondent, v. WALSH et al., Appellants. (Supreme Court, Appellate Division, Second Department. Jan-Appellant. uary 17, 1913.) Action by the Bayside National Bank against Charles H. Walsh and another. No opinion. Judgment affirmed by default, with costs.

BIGGS, Respondent, v. SEA GATE ASS'N, (Supreme Court, Appellate Divi sion, Second Department. January 17, 1913.) Action by Helen W. Biggs against the Sea Gate Association.

PER CURIAM. Motion for stay granted, on condition (1) that plaintiff perfect her ap peal, and place the cause upon the next Court that pending such an appeal she will make no of Appeals calendar; (2) that plaintiff stipulate alteration upon the buildings on said premises,

so as to increase the demands made on the

BENEDICT et al., Respondents, v. SECURITY INS. CO., Appellant. (Supreme Court, Appellate Division, First Department. January 31, 1913.) Action by Seelye Benedict and others against the Security Insurance Company. I. Henderson, of New York City, for sewer and water systems of defendant; and appellant. G. A. Strong, of New York City, for) that she forthwith pay the amount of her indebtedness to defendant for dues, and water respondents. No opinion. Judgment affirmed, furnished to her by it. If the parties cannot with costs, on the authority of Benedict v. Security Ins. Co., 147 App. Div. 810, 133 N. Y. agree upon the amount thereof, a reference may be had to determine the same. Supp. 165. Order filed.

BENIGSOHN v. NEWCOMB.

In default

of compliance with these conditions, or any of them, the motion is denied, with $10 costs. See, also, 138 N. Y. Supp. 53, 1107. (Supreme

Court, Appellate Division, First Department. January 17, 1913.) Action by Sarah II. Benigsohn against William H. Newcomb. No opinion. Motion granted, with $10 costs. Order filed.

BISHOP v. WHITCOMB. (Supreme Court, spondent. No opinion. Judgment and order Appellate Division, First Department. Janu- affirmed, with costs. Order filed. ary 17, 1913.) Action by Bennett Bishop against James A. Whitcomb. No opinion. Motion granted. Settle order on notice. See, also, 139 N. Y. Supp. 1116.

BISHOP v. WHITCOMB. (Supreme Court, Appellate Division, First Department. January 31, 1913.) Action by Bennett Bishop against James A. Whitcomb. No opinion. Motion denied, with $10 costs. Order filed. See, also, 139 N. Y. Supp. 1117.

lant.

BISTANY, Respondent, v. FARGO, Appel(Supreme Court, Appellate Division, Fourth Department. January 8, 1913.) Action by Khalil A. Bistany against James C. Fargo, as president of the American Express Company.

PER CURIAM. Judgment and order reversed, and new trial granted, with costs to the appellant to abide event, unless the plaintiff shall within 20 days stipulate to reduce the verdict to the sum of $897, with interest thereon from the 15th day of July, 1908, in which event the judgment is modified accordingly, and, as so modified, is, together with the order, affirmed, without costs of this appeal to either party. Held, that there was no sufficient evidence to warrant the submission to the jury of the question of defendant's liability in respect to the three unbroken barrels. See, also, 149 App. Div. 929, 134 N. Y. Supp. 207.

KRUSE, J., dissents, and votes for reversal.

BLACK et al.. Appellants, v. MANUFACTURERS' COMMERCIAL CO., Respondent. (Supreme Court, Appellate Division, First Department. January 24, 1913.) Action by George M. Black and another against the Manufacturers' Commercial Company. H. Barry, of New York City, for appellants. E. L. Adams, of New York City, for respondent. No opinion. Judgment affirmed, with costs, Richards v. Wiener Co., 145 App. Div. 353, N. Y. Supp. 951. Order filed.

on

129

BOHRINGER, Respondent, v. CAMPBELL, Appellant. (Supreme Court, Appellate Division, Second Department. January 10, 1913.) Action by Leonhard Bohringer, as administrator, etc., against Samuel O. Campbell.

PER CURIAM. The former decision in this case (137 N. Y. Supp. 241) was not dependent upon the fact to which the learned counsel for defendant directs our attention. Judgment and order unanimously affirmed on reargument, with costs. See, also, 137 N. Y. Supp. 1111.

Ac

BON TON TAILORING CO. v. CHAMPION LAUNDRY. (Supreme Court, Appellate Division, First Department. January 31, 1913.) Action by the Bon Ton Tailoring Company against the Champion Laundry. No opinion. Motion to dismiss appeal granted, with $10 costs, unless appeliant complies with terms stated in order. Order filed.

BOTTEGA, Respondent, v. CAMPBELL, Appellant. (Supreme Court, Appellate Division, Second Department. January 17, 1913.) Action by Vincent Bottega against Peter C. Campbell. No opinion. Motion denied, with $10 costs. See, also, 138 N. Y. Supp. 1108.

BOYNTON et al., Respondents, v. TROY AUTOMOBILE EXCHANGE, Inc., Appellant. (Supreme Court, Appellate Division, Third Department. December 30, 1912.) Action by Kellogg Boynton and another against the Troy Automobile Exchange, Incorporated. No opinion. Order affirmed, with $10 costs and disbursements.

BOZOVSKY, Respondent, v. BUFFALO & L. E. TRACTION CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 8, 1913.) Action by Vacil D. Bozovsky against the Buffalo & Lake Erie Traction Company. No opinion. Motion for reargument (of 138 N. Y. Supp. 1108) denied, without costs. Motion for leave to appeal to Court of Appeals granted.

BRAKER, Respondent, v. NEW YORK FINANCE CO., Appellant, et al. (Supreme Court, Appellate Division. First Department. February 7, 1913.) Action by Conrad M. Braker against the New York Finance Company, impleaded with others. A. L. Carter, of New York City, for appellant. S. A. Crummey, of New York City, for respondent. No opinion. Motion to dismiss appeal denied, without costs. Judgment affirmed, with costs. Orders filed. See, also, 138 N. Y. Supp. 1108.

BRAUN, Appellant, v. BUFFALO GENER

AL ELECTRIC CO., Respondent. (Supreme Court, Appellate Division, Fourth Department, January 15, 1913.) Action by Charles Braun, as administrator, etc., against the Buffalo General Electric Company. No opinion. Judgment and order affirmed, with costs. See, also, 134 App. Div. 910, 118 N. Y. Supp. 1096.

BROADWAY

V.

BONART, Respondent, v. THORN, Appellant. (Supreme Court, Appellate Division, IMPROVEMENT CO. First Department. January 24, 1913.) HARRIS et al. (Supreme Court, Appellate tion by Abraham H. Bonart against Max Thorn. Division, First Department. January 31, 1913.) H. R. Limburg. of New York City, for appel- Action by the Broadway Improvement Company lant. C. Goldzier, of New York City, for re-against Simon D. Harris and others. No opin