dissenting:
The transaction here involved is a voluntary gift by a father to his daughter. The donor had complete right to dictate the conditions of the gift—even to entirely withhold it. That which he intended to do is not, under the evidence, a matter of doubt. ■ The deed which he caused to be prepared for the purpose of executing that intention was so framed as to defeat his intention. Of that there is no doubt. He had the clearest comprehension of what he intended to do, but he labored under a misapprehension as to the meaning which would be given in law to the word “their.” He was not mistaken as to any general legal principle applicable to and controlling the subject matter of the transaction in which he was engaged, but he fell into a mistake as to the language necessary to effectuate his intention. Even if it be conceded it was a mistake of law, there was no mistake as to any legal principle affecting the transaction itself.
The declaration so frequently made by courts and law writers that a mistake of law cannot be relieved against must not be understood to mean a mistake as to the legal effect of the language employed in drafting an instrument, but a mistake or misapprehension as to the legal principle involved in the subject matter of the contract which the instrument was executed to witness and effectuate. Ignorance or error with respect to the general rules o£ law controlling a transaction or agreement can not be relieved against in equity. A mistake as to the legal effect of the real agreement or as to the legal results of the act one performs does not present any ground for affirmative relief in chancery. If a mistake occurs, however, in preparing or framing a written instrument necessary to evidence an agreement upon which the minds of the parties have met, such mistake, though a mistake of law, may be corrected in equity. Mr. Pomeroy, in his work on Equity Jurisprudence, (vol. 2, sec. 845,) says: “If an agreement is what it was intended to be, equity would not interfere with it because the parties had mistaken its legal import and effect. If, on the other hand, after making an agreement, in the process of reducing" it to a written form, the instrument, by means of a mistake of laiu, fails to express1 the contract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact. In this instance there is no mistake as to the legal import of the contract actually made, but the mistake of law prevents the real contract from being embodied in the written instrument. In short, if a written instrument fails to expre'ss the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing. Among the ordinary examples of such errors are those as to the legal effect of a description of the subject matter and as to the import of technical words and phrases;.but the rule is not confined to these instances.” In Dinwiddie v. Self, 145 Ill. 290, this court quoted with approval the above quotation from Pomeroy’s Equity Jurisprudence, and in Kyner v. Boll, 182 Ill. 171, we again incorporated the same quotation in full in the opinion as expressing the views of this court on the question, and we also quoted with approbation the remarks of Mr. Chief Justice Shaw in Canady v. Marcy, 13 Gray, (Mass.) 373, that “a mistake in the legal effect of a description or in the use of technical language may be relieved against, upon proper proof.” Mr. Beach, in his work on Modern Equity Jurisprudence, (vol. 2, sec. 540,) says: “And, moreover, where parties have made an agreement, and there is no allegation of any mistake in it, and in reducing it to writing they, by mistake, either because they did not understand the meaning of the words used or the legal effect thereof, failed to embody their inten- ' tion in the instrument, equity will grant relief by reforming the instrument and compelling the partiés to perform their agreement as they made it; and. it matters not whether such mistake be called one of law or fact.”
Perhaps no clearer statement of the rule, as we who. dissent conceive it to be, can be found than that given in Abraham, v. North German Ins. Co. 40 Fed. Rep. 717, as follows: “In entering into contracts, parties are deemed to know the principles established by law, and contracts are construed with reference to the law applicable to the subject matter of the contract, and therefore, in that sense, the law as it actually is enters into and forms part of the contract that the parties make. • If, however, in a given case the parties actually mistake or misunderstood the principle of law applicable to the subject matter of the contract and reach an agreement rplying upon this mistake of the law, there is no ground upon which a court of equity can reform the contract. The court cannot know whether the parties, if they had correctly understood the law, might have entered into any contract on the subject, or what terms they might have reached touching the same. While the court, therefore, might be entirely satisfied that the parties, had they, in fact, understood the principles of law applicable to the case, would not have made the contract they did make, the court cannot know what contract they would have made, if any, and therefore, in such case, the court can not reform the ^contract, although it might be justified in settingsit aside. When, however, thé mistake lies, not in a misunderstanding of the principles of the law as controllirig the subject of the contract or the rights of the parties connected therewith, but merely in' the terms proper to be used in defining the actual contract of the parties, such a mistake, though in one sense a mistake of law, is one that a court of equity will correct.” '
The quotation from Story’s Equity Jurisprudence incorporated in the opinion of the majority of the court in this cause is in nowise inconsistent with the rule as .stated by Pomeroy and Beach. The mistake of law referred to by this learned writer is a mistake as to the general principle of law relating to and controlling the subject matter of the contract. In fact, Judge Story, in commenting upon the case of Hunt v. Rousmaniere's Admr. 8 Wheat. 174', laid down the same doctrine as that announced in the works of Beach and Pomeroy, as follows: “Equity may compel parties to execute their agreements, but it has no authority to make agreements for them or substitute one for another. If there has been any mistake in the instrument itself, so that it did not contain what the parties had agreed on, that would have formed a very different case, for if an instrument is drawn and executed which professes or is intended to carry into execution an agreement previously entered into, but which by mistake of the draftsman, either as to fact or to law, does not fulfill that intention, or violates it, equity will correct the mistake so as to produce a conformity to the instrument.” (1 Story’s Eq. Jur.—13th ed.'—sec. 115.) These great text writers are in harmony on the point.
The author of the article entitled “Mistake,” in 15 Am. & Eng. Ency of Law, (1st ed.) p. 643, says: “In fact, it may be said that a court of equity will correct or reform an instrument which does not express the true intent of the parties, whether such mistake arises from ignorance of law or of fact.”
In Burdett v. Simms, 3 J. J. Marsh. 190, the parties knowingly employed the words “current money of Kentucky,” in a note, with the understanding the words meant “current bank paper,” and the note was reformed in chancery according to the real understanding of the parties.
In Stafford v. Fetter, 55 Iowa, 484, words were adopted and used by the parties in making an assignment of a promissory note, in the belief the legal effect of the words so used was to effectuate a transfer of the note without recourse on the assignor, but to which words the law gave the contrary legal effect, and the assignment was so reformed as to give expression to the actual intent of the parties.
In Stedwell v. Anderson, 21 Conn, 139, the facts were: Four sisters, three of whom were married', were joint owner's of certain real estate. They'agreed to divide the property and convey each to the other. “When the parties met for the purpose of executing the deeds a discussion arose whether the names of the husbands should be in the deeds or not. Some were of the opinion that they ought to be inserted, but all of them were ignorant of the legal effect of the deeds as prepared, and were of opinion that the insertion of the husbands’ names would do no hurt, and that the deeds, so prepared, would carry out the agreement of the parties. The defendant insisted that unless the names of the husbands were inserted the deeds would be good for nothitg. When this discussion was had it did not appear that any distinction was made between the insertion of the names of the husbands as grantees or grantors, but the married sisters were desirous of having the deeds carry into effect their agreement, and so expressed themselves, and they all executed the deeds, in which the husband appeared with the wife as a grantee, believing that they merely carried into effect the partition among the sisters. ” The deeds to the married sisters were so drawn as to convey the share of each sister to her and to her husband. The legal effect, under the then existing law of Connecticut, was to give to each husband an estate in fee in the tract set apart to the wife. The parties believed the leg'al effect of the insertion of the names of the husbands in the deeds was to convey to the husbands only the interest they were entititled to by virtue of their marital rights. It was held there was jurisdiction in equity to reform the deeds so as to correct the mistake of law and make the instruments conform to the intention of the parties.
Clayton v. Freet, 10 Ohio St. 544, was a petition to correct a mistake in a deed. The evidence established a mistake in drafting the deed, but it was a mistake of law, and it was urged it could not be corrected. The court said: “As to the first point, adopting the language of the court in the case of Canady v. Marcy, 13 Gray, 373, ‘we are of opinion that courts of equity, in such cases, are not limited to affording relief in case of mistake of fact, and that .a mistake in the legal effect of a description in a deed or in the use of technical language may be relieved against. ’ The learned Chief Justice Shaw, in support of that proposition, cites Hunt v. Rousmaniere, 1 Pet. 1; Gillespie v. Moon, 2 Johns. Ch. 596; Stedwell v. Anderson, 21 Conn. 139; Oliver v. Mutual Commercial Marine Ins. Co. 2 Curt, C. C. 299. To these authorities may be added Cook v. Husbands, 11 Md. 492; Springs v. Harven, 3 Jones’ Eq. 96; Young v. Miller, 10 Ohio, 85; McNaughten v. Partridge, 11 id. 223.”
In Evans v. Strode, 11 Ohio, 480, both parties knew the terms used in a conveyance of land, but were clearly mistaken as to ,the legal effect and operation of the words used. The court held the mistake was one of law, but that it was relievable in equity, and so decreed.
Many other cases adjudicated in the courts of last resort in other States of the Union are cited by Mr. Pomeroy and Mr. Beach in support of the "doctrine announced by them, but those mentioned serve to illustrate "the principle and the trend of judicial decisions on the point. Decisions holding to the contrary are to be found,—some in our own court; but it seems clear that in the better reason and on much the greater weight of authority it must be said, in all of such cases the adjudication pro- ' ceeded'upon an erroneous view as to the true meaning of the well established rule that a mistake of law cannot be relieved against,—that is, that parties are presumed to contract with reference to the legal principles which control the subject matter of the transaction, and that such legal principles enter into and form an inseparable part of their contract, and it is not within the power of the court to make a new contract for the parties. A mistake as to such legal principles cannot be corrected, but a mistake as to the legal meaning and effect of words selected by the parties in drafting written instruments to evidence the agreements into which they have entered, though mistakes of law, do not enter into and become part of the contract, and such instruments may be so reformed that they will declare the true and real agreement or undertaking of the parties.
The testimony mentioned in the opinion of the majority of the court clearly establishes the intention of the donor of this gift, and the record contains much other proof, all to the same effect. It is, it seems to me, within the power of a court of equity to so reform the deed as to carry that intention into effect.
Wilkin, O. J., and Carter, J., concur in the dissenting opinion of Mr. Justice Boggs.