Hetty H. Robinson, in Equity, vs. Thomas Mandell, et al; Arguments of Hon. T. D. Eliot, and T. M. Stetson, Esq. for Respondents

This historic book may have numerous typos, missing text, images, or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1867. Not illustrated. Excerpt: ... When both parties to a contract are at the time of the contract in mistake or error as to matters in respect of which they are contracting, this will avoid the contract both at law and in equity. Fry, page [*221] 497. Champlin vs. Laytin 18 Wend. 409. A contract entered into under an actual mistake of the law on the part of the contracting parties, by which the object and end of their contract according to its intent and meaning cannot be accomplished, is as liable to be set aside, as a contract founded in mistake in matters of fact. Per Paige, Senator. The real agreement between these parties, as stated by the complainant, could not be worked out unless the complainant had children. That implies marriage. Marriage revokes the will. If any such agreement was ever made, Miss Howland could not have understood this. If, indeed, marriage of a feme sole does not revoke a will, this suggestion could have no weight. But we submit that such is not the law at this time. May it please your Honors -- after that contract will was executed, (if such agreement was ever made, ) it is obvious that the plaintiff could herself have defeated the whole agreement by conveying her property to her father the day after the 19th of Sept., 1860, or whenever it was that her will was signed. There is no reason upon earth why she could not have conveyed her property to her father. Miss Howland could not have understood that, if she was making a contract to keep Mr. Robinson from inheriting, or taking in any way, the estate. Still further, I want to call your Honors' attention to the fact, that it was understood, apparently, by the aunt, that the niece was to take possession of her will. On page 77 of the record the complainant is asked in regard to taking possession of the ...