9 Tenn. 404 | Tenn. | 1830
An issue was made tip to try the fact, whether an instrument purporting to be the last will of Joseph IIuíí^ of Cocke county, was or was not the last will of said Joseph. It was dated in 1817, and IIulF died in 1827. One of the subscribing witnesses had retained the will in his possession from the. time of its date until after Hull’s death. That the will was made according to Mr. Huff’s wishes in 1817, is not disputed. It was formally drawn, witnessed by two disinterested witnesses, and deposited. Not the remotest unfairness is attributed to any person in obtaining the will, but the object of the issue was, to set it aside, because it was alleged by the plaintiffs in the issue, that Joseph Huff had revoked it by parol declarations between 1817 and 1827. The will disposed of both real and personal property. The proof set out in the record, shews that Huff spoke of making another will, and said he had broke the one deposited with the witness; meaning thereby, that he, after the will was executed, disposed of one plantation and some personal property, devised by the will. Other expressions were used years after the will was executed, which plaintiffs contend were expressive of a mind to revoke. The proof was all parol.
The circuit judge charged the jury, that a will, such as that offered for probate, could not he revoked by parol? Sither as to the realty or personalty. And as there was no legal evidence of revocation, the jury should find for the plaintiffs.
Could this will be revoked by parol? If so, the circuit court erred in rejecting the evidence from the jury. To decide this question the court is called upon, perhaps, for the first time since its existence, to give a construction to the statute of descents of 1784, ch. 22. The 14th sec. declares, “that no written will shall be revoked or altered bjr a subsequent nuncupative will, except the same be, in the lifetime of the testator, reduced to writing and read over to him and approved; and unless the same be proved to have been so done by the oaths of two witnesses, at least, who shall be such as arc admissible upon trial at common law.”
The act of 1784, prescribes no form of. solemnity for the execution of a testament of goods, different from what was required by common law, save as to nuncupa-tive wills, by the 15th and 16th sections. But the 11th section prescribes a precise form, and manifests a most sacred regard for the due and solemn execution of wills-to pass estates in lands, tenements, and hereditaments. — - Perhaps no clause in our statute book has been, and is more venerated or deemed more vitally important than this. Any construction, tending to weaken the force of the provisions for the due and solemn execution of last wills, as there prescribed, we deem inadmissable. That the act of 1784, of descents, was penned with distinguished ability and sin guiar foresight; that it is one of the greatest monuments of our forefathers’ wisdom, all who understand it, will admit. Is it not strange, then, that legislators so profound, should provide for the case of a written
The reason given by Judge Taylor in the case of Clark’s Executors vs. Eborn, et. al. to produce the revocation, does, with me, operate the other way.
“So in the present case, the paper written by the testator’s direction, being unsigned, unattested, and not in his
Now the very circumstance of not signing or of calling a witness or witnesses, is as conclusive to show that the testator’s mind had come to no determination on the subject he had been merely thinking of, as it is conclusive to prove a disposition to revoke.
Touching the execution of deeds, Baron Comyn lays down these rules or stages, in the operation. 1. The mind to do it, and thereupon he causes it to be written, which is one part of deliberation. 2. Signing and sealing, which is the second part of deliberation; and 3rd and last; delivering, which is the last part of deliberation. Hence, says he, there is great deliberation touching the execution of deeds.
Our act of Assembly contemplates the making of last wills, as the most' solemn act of a man’s life — hence, the act specifies the writing, the attestation, and publishing, as all necessary to consummate the making of a last will.
The last act mentioned being done, may be evidence of the former acts — but all the former fall far short of being evidence of the latter.
The testator not signing in the case put by Judge Taylor, is proof that no conclusion had been reached by the mind, and that the writing was but experiment.
A will, regularly made and attested, is supposed to be under the control of the maker during his life.
If he intended to revoke, how easy to destroy the whole. The preserving it in that form is better proof of the satisfaction of the mind with it, than mere memoranda, (kept no more safely than the will,) is proof against it.
And were revocations in part intended, it would be unsafe to let in oral proof — it is against the policy of our laws — the injuries, if any could arise, would fall far short by shutting out the testimony of that which would follow by letting it in.