Clayton v. . Liverman, 19 N.C. 558

Clayton v. . Liverman

19 N.C. 558 | N.C. | 1837

Lead Opinion

Gaston, Judge.

This is a very singular case, and presents for determination, questions, which, as far as we are informed, have not before been agitated in our country. These are, 1st, whether the paper writing offered for probate, and found to be jointly executed by Martha Liver-man and Sarah Liverman, can be admitted to probate as the joint will of the said Martha and Sarah: and, 2ndly, if it cannot be admitted to probate as their joint will, may it be proved as the separate will of either of them.

The paper professes, as strongly as language can de-*560dare, to be the united will of Martha and Sarah Liver-man ; designed to take effect upon the death of both ; to appmnt an executor to both; and to dispose of property belonging to both. “ We do make this to be our last will and testament. We commend our soul to the hands of Almighty God that gave it — as touching such worldly goods as it has pleased God to bless us with, we devise and dispose of it in the following manner. — We give unto our dearly beloved nephew William Clayton, one negro man, &c., after our decease, to be and remain his forever. Wegiveunto our dearly beloved nephew, Edmund Clayton, one negro man, &c.; and all the rest of our property, after our decease, to be and remain his forever. We do hereby ordain and appoint our worthy friend Edmund Clayton executor to this our last will and testament.” These expressions can leave no-doubt that it was the purpose of both parties to this instrument, that after they should die, the property therein mentioned should be disposed of in the manner stated; and that Edmund Clayton, as their executor, should see these dispositions carried into effect. It is a conjoint will, if a conjoint will can in law be made.

Can it be established, as a joint will 1 I have no hesitation in answering this question in the negative. A will is defined to be a legal declaration of a party’s intentions, which he wills to be performed after his death. It follows, from the definition, that it must be the sole act of one person, declaring Ms intentions, in regard to what Tie wants performed, when he shall be no more. It is the exercise of a privilege which belongs to the owner of property, of declaring a law for continuing that property in such persons as he pleases after his death. Deriving its efficacy solely from its being his final sentence; inoperative during his life; and having exclusively a posthumous character, it remains ambulatory and revocable up to the last moment of his existence, and then becomes, by virtue ■of his definitive determination, a positive and absolute rule. In this view a will differs essentially from a deed ; and therefore the first deed, but the last will, is of the greater efficacy. So long as a man retains a testable *561capacity — and without a testable capacity he can make no will — he may alter, abrogate, or republish his will. It is not in his power to make a will which he may not alter or revoke, because no man’s act can “ alter the judgment of law to make that irrevocable, which is of its nature revocable.” Vynior’s Case, 8 Coke’s Rep. 162. Swin. Pt. 7, sec. 14, pi. 2. From these properties of a will, it also follows, that it cannot be conjoint. If conjoint, it is to take effect after the death of both, not upon the death of one. If conjoint, then it is either irrevocable except by the act of both — which would deprive each testator of the power of altering his intentions in regard to the disposition of his own property — or it is revocable by the act of either, which would give to one the power of changing the disposition of another’s property. In Williams on Executors, vol. 1, p. 9, we find it laid down, “ Another essential distinction between a deed and a will may be mentioned, that there cannot be a conjoint or mutual will; an instrument of such a nature is unknown to the testamentary law of this country.” For this the author quotes 1 Cow. Rep. 268, in Lord Mansfield’s judgment in Darlington v. Pultery. Hobson v. Blackburn, 1 Addams’s Eccl. Rep. 277; and he is fully supported by his references.

Perfectly satisfied that the paper writing propounded cannot be admitted to probate, as the joint will of Martha and Sarah Liverman, I am next called upon to decide whether it may be established as the will of either of them, and in my opinion, this question must also be answered in the negative. An insuperable objection in the way of pronouncing this the several will of either of the parties is, that it does not purport to be the separate will of either. It is wholly a joint act, and in no respect a several act. It is a joint declaration of a joint purpose as to the disposition of joint property, after the death of both the parties, by a joint executor, appointed to carry into effect this arrangement ; but it contains no declaration of the separate intentions of either in regard to her property, to be executed at her death, nor the constitution of any executor to carry into effect her intention. To pronounce for it as a several will, is to adjudge it to be what it is not.

*562It has been insisted in argnment, that as the instrument contains unequivocal evidence of the intention of both, it necessarily shows the intention of each of the parties; and therefore is the will of each. Assuredly each did intend the disposition contained in the supposed will, such and in the form therein declared, but it does not thence follow, that either definitely intended such a disposition of her interest therein, after her death. It does not conclusively appear, that if either had made a separate testament, such testament might not have contained a different disposition. If, from the joint declaration, we are to form any inference as to the separate purpose of each, I should conclude, that at all events, it was designed that the survivor should take for the term of her life, the property of the other. In this respect, at least, the will of each would have varied in terms from that before us. It would have varied also in its operation. For if this be held the separate will ofeach, then, upon the death of one, her whole interest devolved upon her executor, in trust for the legatees therein named, after the death of the other, and, until that event, in trust for the next of kin of the deceased. Besides, non constat, but for the purpose of carrying into, execution the joint arrangement wholly, and in the form agreed upon, an entirely different disposition would have been made. Both purposed that the legatees should take the respective things given, and as they were given, but neither mayhave desired that they should take, at all events, an undivided moiety thereof. It may have been, that the arrangement contemplated, was, as a whole, deemed well suited to the interest, advancement, and comfort of the common family of the parties, and may have accorded with the feelings which they entertained towards the human beings who constituted the principal part of the subject of this arrangement, while the same considerations might have prompted each, in making an independent will, to select different legatees, and to bequeath in a different way. But it is not necessary that we should see a separate purpose, different from that evidenced by the joint act ;■ it is enough that the joint act contains no definitive evidence of the separate purpose of either.

*563Although no instrument has operation as a will until the death of the testator, yet if it be not valid as a testamentary instrument when executed, no circumstances occurring afterwards, (short of a republication by the testator,) can make it such. The determination, therefore, of the question, whether this be the separate will of one of the parties, must be the same as it would have been, if the other were yet alive, or had died after revoking this instrument as her will, and making a different testamentary disposition of her property.

Another, and, as I think, equally insuperable objection to the probate of this instrument as a will, is, that whatever name may be given to it by the parties, it is, on its face, an agreement or compact; and cannot, therefore, be a will. Upon the face of the instrument, there is manifestly an agreement between two, for the disposition of the property of both. It declares the assent of two minds to one common purpose, which neither was individually competent to effect; and it is, therefore, a compact. Now, it is immaterial in what form a will is made, whether it be in form of a deed-poll, indenture, marriage settlement, bond, letter, note, draft, receipt or endorsement, provided, that it evinces the fixed independent purpose of an individual, with regard to the disposition of his property after his death. So, an instrument, testamentary in its form, if it manifests no more than a compact, or an agreement between two, must be treated as such, and cannot be converted into an instrument testamentary in its character. It does not .become us to say whether this agreement, or compact be well executed, and if not, whether it be one the execution of which, could be enforced by either of the parties, or can now be enforced by those who were to derive benefit from it. How it may be considered, when brought before the proper forum for the adjudication on agreements or compacts, a Court of probate is not competent to inquire. When such a Court sees that it declares the agreement of two, and not the separate volition of one, a conclusion in which an interchange of opinions, and a compromise of interests has resulted in regard to a subject exclusively belonging to neither; and not the spontaneous *564determination of one claiming to exercise sole dominion; SUch a Court cannot pronounce it the will of either. To use the language of Lord Rosslyn, in Warner v. Matthews, 4 Ves. Jun. 209, it is not a complete definite rule and law made by the owner for the settling of her fortune after death.

I rely with more confidence on the correctness of this opinion because it has the sanction of one of the ablest judges on testamentary law. The case of Hobson v. Blackburn, 1 Addams’ Reps. 274, (2 Eng. Eccl. Rep. 115,) is strikingly similar to that before us. Martha, Susanna, and Joshua Hobson, sisters and a brother, executed an instrument in writing, which, in the beginning, they called an assignment, but, in the end, expressly declared their will, “ in the case of each other’s decease.” By it, provision was made upon the death of one, for the benefit of the two surviving, and upon the death of two, for the benefit of the last survivor, with limitations thereafter to their other brothers and sisters, and they thereby constituted each other with their brothers William and George, executors thereof. Joshua died, and a probate of this instrument as his will was granted to his two sisters, Martha and Susanna, and his brother George, three of the executors therein named. Martha afterwards died, having made, as was alleged, a separate testamentary disposition of her property. Probate of the joint will as the will of Martha, deceased, was prayed by George Hobson, one of the surviving executors therein named: and letters of administration, with the separate will annexed as that of the same deceased, were prayed by her nieces who were legatees in it. The allegation propounding the joint will was in the common form, except that it pleaded the death of Joshua Hobson, and that probate of the said joint will as to the effects of the said Joshua had been taken by the deceased. í’he admission of this allegation was opposed. Sir John Niciioll declared that he had no hesitation whatever, in rejecting the allegation propounding the joint will, as that of the party deceased, on the principle that an instrument of this nature is unknown to the testamentary law of this country, or in other words, that it is unknown as a will to the law *565of this country at all. “ It may,” he observes, “ for ought that I know, be valid as a compact. It may be operative in equity, to the extent of making the devisees of the will, trustees for performing the deceased’s part of his contract. But these are considerations wholly foreign to this Court, which looks to the instrument entitled to probate as the deceased’s will, and to that only. The allegation plainly proceeds upon a notion of the irrevocability of the instrument which it propounds as the will of the deceased. Why this very circumstance destroys its essence as a will, and converts it into a contract, a species of instrument over which this Court has no jurisdiction. Upon these broad, and, as I apprehend, sufficiently intelligible grounds, I reject this allegation.”

The counsel for the plaintiff, in commenting upon the case of Hobson v. Blackburn, insists that it decided no more than that, as the will of Martha Hobson, it was revocable, and had been in fact revoked by her testamentary disposition of a subsequent date. Certainly I do not so understand it. According to the practice in the Prerogative Court, (see note page 11 of 1 Eng. Eel. Rep.) the facts intended to be relied on in support of any contested suit, are set forth in a plea which is termed an allegation. This is submitted to the inspection of the counsel of the adverse party, and if it appears to them objectionable, either in form or substance, they oppose the admission of it. If the opposition goes to the substance of the allegation, and is held to be well founded, the Court rejects it; by which mode of proceeding, (analogous to that of a demurrer to a bill in equity,) the suit is terminated without going into any proof of the facts. The case was heard on opposition to the admission of the allegation propounding the joint will as the separate will of the supposed testatrix, and not upon the allegation propounding the subsequent will. The allegation opposed did not bring the question as to the execution of the subsequent testamentary paper before the Court. The sufficiency of the allegation opposed, was the sole matter, then under considerstion and the allegation was rejected not because the will propounded had been revoked, that would be a matter for subsequent *566inquiry, if the allegation should be admitted, but because the instrument so propounded as the will of the deceased, was a conjoint or mutual will, and, therefore, as a will, entirely unknown to the law. The only remark respecting the “ notion of its irrevocability,” was to explain more distinctly the reason why a conjoint will was unknown to the testamentary law. Such an instrument is regarded as a compact. Compacts are not wills and differ from them, (besides in many other important particulars,) essentially in this, that compacts (if valid) are irrevocable, while wills are revocable.

The counsel has also remarked, that in the case decided by Sir John Nicholl, as also in the case of Dufour v. Percira, Dickens Rep. 419, probate was in fact granted on a joint will, as the will of the testator who died first, and he insists that this is some evidence, that the words of that learned judge, are not to be understood in the broad sense attributed to them. I think, that the probates thus granted, without contestation and sub silentia, afford no evidence to this purpose. The mode of proceeding was no doubt, by what is called a simple condidit, setting forth the execution of an alleged will, and the sanity of the testator, and did not bring to the notice of the Court, the joint character of the instrument propounded.

The cases of Dufour v. Percira, Walpole v. Oxford, 3 Ves. Jun. 402, and Hinckley v. Simmons, 4 Ves. Jun. 160, are cases in which conjoint or mutual wills have been set up, or attempted to be set up in equity, not as wills but as compacts, and need no farther explanation than that given in the judgment of Sir John Nicholl, already stated.

In my opinion, the judgment below must be reversed. As the verdict was general, and not rendered subject to the opinion of the Court, upon the legal objections taken upon the trial, we can do no more than reverse the judgment, and order a venire de novo.

Dissenting Opinion

*567Daniel, Judge,

dissented, and delivered the following opinion. — The decision made by the Court below, that this paper writing could be admitted to probate, as a joint will of the two sisters, I am inclined to think, was erroneous. But I am unable to perceive, why it may not be admitted to probate as the separate and several last will and testament of each of the two sisters. It seems to me, that they have separately and severally, executed this paper as the last will of each of the underwriters, so far as relates to that portion of property which belonged to each, and which is mentioned and attempted to be disposed of, by this testamentary writing. The sisters do not even pretend to make a mutual will of their property to each other; or make any agreement express or implied, that the survivor shall have the property of the first deceased, during the life of the survivor. They both together, or either separately, had the power to revoke or alter this will; either might have revoked, without giving notice to the other of the fact of revocation. Then it would have stood as the will only of her that had not revoked. There is no agreement to be seen or implied in the case, that if one of the sisters would sign the will, or dispose of her property in this manner to the legatees, the other would; or if one should revoke, the other would, or probably would, have altered her will. I say there is no such agreement; it is not, therefore, a case in which a Court of Equity, could have entertained any jurisdiction, if one of them had revoked secretly. It is a case resting entirely upon the testamentary law of the land, which does not require any notice of revocation to be given. Why should the will of these two sisters be here frustrated, and the legatees disappointed? The law favours last wills and testaments; and it seems to me, that in establishing this paper as the separate will of each of the sisters, no principle ©f law or policy, can or will be violated. Because the case is a novel one, it by no means follows that the claims of the plaintiff are illegal. What is the test by which we learn whether a paper is a will or not ? A last will and testament is defined to be “ the just sentence of our will touching what we would have done after our death,” 2 Bla. Com. *568499 ; Swinb. Pt. 1 sec. 2. 1 Will, on Exrs. 6. Trying this paper by this test, can any man doubt but that it is a will anc*testament? But >s said, that the paper contains an agreement, and therefore, its revocability as a will was destroyed, and by the testamentary law it could not be considered as a will. I deny the fact that the paper contains any agreement; therefore the Court of Equity has nothing to act upon. And again, I deny that the law of a Court of probate, would reject it as a will, even if it did contain an agreement, if it also contained the just sentence of the will of the sisters, touching what they would have done after their deaths. Such a paper would still be a will; and, although it were in the form of an agreement, it would be revocable by either of the sisters in their lifetime, by force of the testamentary law. The Court of Equity by its extraordinary power, and to prevent frauds, might restrain the revocation, or declare a revocation of it in the Court of probate a nullity. But can a judge sitting in a Court of probate do so ? I answer, no. Dufour v. Percira, 1 Dickens Rep. 419, was this: A wife had a separate estate: she and her husband agree to make a mutual will, which is drawn, and both execute it. The husband died; the wife proved the paper writing in the prerogative Court as his will, and afterwards she made another will. And the quession was, whether in a Court of equity, the wife should be permitted to revoke the mutual will. (It was not doubted, I think, but in a Court of probate she might revoke). Lord Camden, Chancellor, said “ consider how far the mutual will is binding, and whether the accepting the legacies under it by the survivor, is not a confirmation of it. I am of opinion it is. It (the will) might have been revoked by both jointly; it might have been revoked separately, provided the party intending it, had given notice to the other of such revocation.” Lord Camden, was evidently alluding to the law of a Court of Equity, when he said “ provided the party intending it, had given notice of revocationfor without such notice a fraud might have been committed on the other party, which a Court of Equity would relieve against But in a Court of probate (when the jurisdiction is no *569extraordinary, like it is in chancery, where the Court applies to the consciences of the parties,) the law of the Court is, that all wills however made, are revocable at any time before the death of the persons making them; and that too, without notice to any body. And it is because a Court of probate cannot look at the instrument in the light of an agreement, as a Court of Equity can; but must only consider whether the paper is testamentary in its character, and if it is, to enforce the law of that Court, which says, that a will is ambulatory and revocable at any time before the death of the maker. It is, because of the inability of the probate Court, to give the proper relief, that we discover certain cases are brought before the Court of Equity, where they are acted on as agreements. In the case of Dufour v. Percira, there cannot be a doubt, but that the paper would have been admitted to probate in the Prerogative Court, as the will of the wife, as well as it had been already admitted to probate, as the last will of the husband, had not the wife made another will, which operated in the Prerogative Court according to the laws of that Court, as a revocation of the mutual will, so far as the same related to the wife. The Prerogative Court was bound to establish the last will of the wife, and consider the mutual will as revoked, so far as concerned the wife. But equity stepped in, and by its extraordinary power touched the consciences of the parties, and prevented fraud and imposition. Lord Camden, said, “ the first (the husband) that dies carries his part of the contract into execution. Will the Court of Equity afterwards permit the other to break the contract ? Certainly not. The wife has taken the benefit of the bequest in her favour by the mutual will; and hath proved it as such. I am of the opinion, that the last will of the ivife, so far as it breaks in upon (the agreement) the mutual will is void.” There is no doubt but Lord Camden thought the mutual will would have stood good in the Court of probate, as the separate and individual will of each, had it not been revoked, as to the wife, by the subsequent inconsistent will of the wife, and by force of the law of the Court of probate. In Walpole v. Oxford, 3 Ves. Rep. 417, the Chancellor in *570speaking of the case of Dufour v. Percira, says: “ there was no probate of the mutual will as the will of the wife in the Ecclesiastical Court, it was considered purely as the the will of the husband.” I ask why was not the mutual will proved as her will 1 The answer is, because her first will was revoked by the second, according to the laws of a Court of probate. The Chancellor, therefore, had a right to say, after what had happened, that the mutual will neither was, nor by possibility could be the will of the wife. But it was in equity a good contract, and it should there be so understood, and enforced, notwithstanding it was revoked as a will, in the probate Court, by her subsequent will made and established in that Court. The case of Hobson v. Blackburn, 2 Eng. Eclesi. Rep. 115, simply lays down this principle : — “ That mutual or conjoint wills irrevocable by either of the supposed testators, is unknown to the testamentary law of this country.” I suppose, that no body ever doubted but that the law was as there stated. How could it be a last will, if it was not ambulatory and subject to revocation at any moment before the supposed testator’s death"? If we will but attentively examine the facts of that case, it will be made too plain to cavil about. Martha, Susanna, and Joshua Hobson (ajbrother and two sisters) each being worth about eight thousand pounds, in the year 1794 make a will, which stripped of its useless verbiage, is in this manner. “ We, Martha, Susanna, and Joshua Hobson, do agree to the following assignment of our property in case of each others’ decease. The whole of the interest of it shall devolve to the longest life or lives while continuing single,” &c.; the will then proceeds to specify the property disposed of, and make ulterior limitations in case of the marriage of either or death of the survivor. They appoint each other executors and executrixes. Joshua Hobson died in 1796, and probate as to the effects of Joshua was granted by the Prerogative Court, to Martha and Susanna Hobson, as executrixes. In November, 1820, Martha Hobson made a separate will of her estate, which had increased to thirteen thousand pounds, inconsistent with the first mutual will of 1794. Probate of the joint will of 1794, as that of Martha Hobson, *571was prayed by one of the executors named in that will, on the one hand, and those claiming under the separate will of Martha Hobson, of 1820, prayed probate on that at the same time, on the other hand. The two wills of Martha, viz. that of 1794, as well as that of 1820, were both presented to the judge at the same moment of time for probate. Sir John Nicholl did that, and no more, which every County Court in this state would have done in a similar case, he admitted the last will of Martha Hobson, (that of 1820,) to probate, or did not reject it, and rejected the will of 1794. Sir Johjt Nicholl, speaking of the will of 1794, (as appears in the beginning remarks of his reported opinion,) does say, or is made by the reporter to say, “ that an instrument of this nature is unknown as a will to the laws of this country at all.” Sir John? Nicholl, was, as had Lord Camden been, in Dufour v. Percira, struck at first, more from the novelty of the thing, than its difficulty: and in reading a little further on his reported opinion, we see the plain common sense grounds upon which he decided the cases. He there says : “ The allegation, (propounding the will of 1794,) plainly proceeds upon the notion of the irrevocability of the instrument which it propounds as the will of the deceased. Why this very circumstance destroys its essence as a will, and converts it into a contract; a species of instrument over which this Court has no jurisdiction. Upon these broad and intelligible grounds, I reject the allegation.” For the substance of the allegation propounding the will of 1794, (which is the same as is the declaration, in an action at common law,) rested the case wholly on the notion of the irrevocability of the paper of 1794, under the circumstances in which it was made, and also after the fact of the death of the brother who had signed it, and its (the same paper) having been before ■pronounced his will by the Court of probate. The opposition to the allegation made (which resembles á demurrer at common law,) brought the question of law upon the facts and averments made in the allegation, directly for the opinion of the judge. And, he very properly pronounced against the allegation, and particularly against the new-fangled notion of the proctor who framed it. Mr. Williams (in *572his book on executors, vol. 1, page 9,) seems to me to give rather the dictum of Sir J. Nicholl, in Hobson v. Blackburn, upon an irrelevant point, than the true grounds of his decision upon the merits of the case. Certain it is that Mr. Addams, the reporter of the case, did not understand the judge to decide the case on the ground that Mr. Williams has stated he did. Mr. Williams, (in a subsequent part of the same volume, page 65, speaking as to conjoint and mutual wills being against law,) says, “ one ground of objection to such an instrument as testamentary is, its irrevocability,” evidently hingii^g upon what Sir John Nicholl alluded as to the allegation. It appears to me that Mr. Williams, as well as my brothers in this Court, have entirely failed in comprehending the meaning of Sir John Nicholl, in his judgment in the case of Hobson v. Blackburn. The judge said that the allegation, propounding the will of 1794, plainly proceeded upon the notion of the irrevocability of the instrument, by the law of that Court. That position, the judge very correctly denied ; and the reason that the allegation was not admitted, at least so far as to let the will of 1794 be admitted to probate, was upon no other legitimate ground, but that Martha had made the subsequent will of 1820, which had, in the Court of probate, revoked the will of 1794. I collect the fact that Mr. Addams so understood Sir John, Nicholl, from his synopsis of the case; and, furthermore, from what is so plainly stated by the two Chancellors who decided the cases of Dufour v. Percira, and Walpole v. Lord Oxford, as the understood testamentary law of the Court of probate. If it was not the law of the Ecclesiastical Court, I am at a loss to conceive why the Court of Equity should be called on to restrain or give relief. It must be a demanduponthe extraordinary powers of a Court ofEquity, to have that justice done, which by the positive and stubborn law of the Court of probate could not be attained in that Court, or in other words, justice was likely to be frustrated by the rules of that Court. Can any man believe that if Martha Hobson had not have made the will of 1820, but that Sir John Nicholl would have admitted the mutual will of 1794 to probate, as her last will ? We *573see, that the Prerogative Court did not object to the form of the instrument when it was propounded and admitted to probate as the will of Joshua Hobson, the first of the three that signed it, that had died. So in Dufour v. Percira, the paper had been propounded as the will of the husband on his death, and admitted to probate as his will, although purporting to be the joint will of husband and wife. In wills only disposing of personal property, form is not looked at.' It may be almost in any form, as is to be seen in the many forms noticed in Williams on Ex’rs, 54 and 55, provided it is the intention of the deceased that it should operate after his death. All the difficulty in this case, has arisen out of a dictum of Sir John Nichoix, in the case of Hobson v. Blackburn. He did not decide that case on it. The dictum is in conflict with the clearly ascertained notions of Lords Camden and Loughborough, as to what the law was, not in the Courts of Equity where they presided, but in the Ecclesiastical Court. There is neither reason nor policy, as it seems to me in favour of the dictum. Mr. Addams, unfortunately for these plaintiffs, published the dictum, and Mr. Williams had propagated the error.

Whether the legatees, under the will of the sister first dying, would take immediate vested interests in their legacies, on the death of such_/i?\s¡{ dying sister, or whether the said legacies would be executory and vest only on the death of both the sisters, is a question, the decision of which has no bearing upon the case now'before the Court; which is, whether the paper shall be admitted to probate as containing the distinct and separate will of each of the sisters. Not until after the probate of a will, can any question arise as to the vesting or not vesting of legacies under that will. I think the paper contains the separate and distinct will of each of the two sisters who have separately subscribed the same; and ought to be admitted to probate as the several will of each of the subscribers.

Per Curiam. Judgment reversed.

Lead Opinion

"In the name of God, Amen. July the 6th day, 1832. I, Martha Liverman and Sarah Liverman, of, c. We, being in a good state of health, and of sound mind and memory; and calling to mind the mortality of our body, and that it is appointed for all mortals once to die, do make this to be our last will and testament: and first of all we commend our souls to the hands of Almighty God that gave it; and *559 as touching such worldly goods as it hath pleased God to bless us with, we devise and dispose of in the following manner. First, we give unto our dearly beloved nephew, William Clayton, one negro man," c., "after our decease, to be and remain his and his heirs forever, to his proper use. Then we give unto our dearly beloved nephew, Edmund Clayton, one negro man,c., and we do hereby give unto him all the rest of our property, after our decease, to be and remain his and his heirs forever, to his proper use; and we do hereby ordain and appoint our worthy friend, Edmund Clayton executor of this our last will and testament."

The probate was contested by the next of kin; and the issue was tried on the last Circuit, at Tyrrell, before his Honor Judge PEARSON, when it appeared in evidence that the supposed testatrixes, who were sisters, both died within a few days of each other.

For the next of kin it was objected, that a mutual or conjoint will was unknown to the testamentary law of this country. To obviate this objection, the paper writing was propounded as the joint will of both the supposed testatrixes, and also as the sole will of each of them; and it was agreed, that if in any of these forms it could be admitted to probate, it might be admitted to be so pronounced for. His Honor thinking that probate might be had of it as a mutual or conjoint will, it was proved in that form; and the caveators appealed. — This is a very singular case, and presents for determination, questions, which, as far as we are informed, have not before been agitated in our country. These are, 1st, whether the paper writing offered for probate, and found to be jointly executed by Martha Liverman and Sarah Liverman, can be admitted to probate as the joint will of the said Martha and Sarah: and, 2ndly, if it cannot be admitted to probate as their joint will, may it be proved as the separate will of either of them.

The paper professes, as strongly as language can *560 declare, to be the united will of Martha and Sarah Liverman; designed to take effect upon the death of both; to appoint an executor to both; and to dispose of property belonging to both. "We do make this to be our last will and testament. We command our soul to the hands of Almighty God that gave it — as touching such worldly goods as it has pleased God to bless us with, we devise and dispose of it in the following manner. — We give unto our dearly beloved nephew William Clayton, one negro man, c., after our decease, to be and remain his forever. We give unto our dearly beloved nephew, Edmund Clayton, one negro man, c.; and all the rest of our property, after our decease, to be and remain his forever. We do hereby ordain and appoint our worthy friend Edmund Clayton executor to this our last will and testament." These expressions can leave no doubt that it was the purpose of both parties to this instrument, that after they should die, the property therein mentioned should be disposed of in the manner stated; and that Edmund Clayton, as their executor, should see these dispositions carried into effect. It is a conjoint will, if a conjoint will can in law be made.

Can it be established as a joint will? I have no hesitation in answering this question in the negative. A will is defined to be a legal declaration of a party's intentions, which he wills to be performed after his death. It follows, from the definition, that it must be the sole act of one person, declaring his intentions, in regard to what he wants performed, when he shall be no more. It is the exercise of a privilege which belongs to the owner of property, of declaring a law for continuing that property in such persons as he pleases after his death. Deriving its efficacy solely from its being his final sentence; inoperative during his life; and having exclusively a posthumous character, it remains ambulatory and revocable up to the last moment of his existence, and then becomes, by virtue of his definitive determination, a positive and absolute rule. In this view a will differs essentially from a deed; and therefore the first deed, but the last will, is of the greater efficacy. So long as a man retains a testable *561 capacity — and without a testable capacity he can make no will — he may alter, abrogate, or republish his will. It is not in his power to make a will which he may not alter or revoke, because no man's act can "alter the judgment of law to make that irrevocable, which is of its nature revocable." Vynior's Case, 8 Coke's Rep. 162. Swin. Pt. 7, sec. 14, pl. 2. From these properties of a will, it also follows, that it cannot be conjoint. If conjoint, it is to take effect after the death of both, not upon the death of one. If conjoint, then it is either irrevocable except by the act of both — which would deprive each testator of the power of altering his intentions in regard to the disposition of his own property — or it is revocable by the act of either, which would give to one the power of changing the disposition of another's property. In Williams on Executors, vol. 1, p. 9, we find it laid down, "Another essential distinction between a deed and a will may be mentioned, that there cannot be a conjoint or mutual will; an instrument of such a nature is unknown to the testamentary law of this country." For this the author quotes 1 Cow. Rep. 268, in Lord MANSFIELD's judgment in Darlington v. Pultery. Hobson v.Blackburn, 1 Addam's Eccl. Rep. 277; and he is fully supported by his references.

Perfectly satisfied that the paper writing propounded cannot be admitted to probate, as the joint will of Martha and Sarah Liverman, I am next called upon to decide whether it may be established as the will of either of them, and in my opinion, this question must also be answered in the negative. An insuperable objection in the way of pronouncing this the several will of either of the parties is, that it does not purport to be the separate will of either. It is wholly a joint act, and in no respect a several act. It is a joint declaration of a joint purpose as to the disposition of joint property, after the death of both the parties, by a joint executor, appointed to carry into effect this arrangement; but it contains no declaration of the separate intentions of either in regard to her property, to be executed at her death, nor the constitution of any executor to carry into effect her intention. To pronounce for it as a several will, is to adjudged it to be what it is not. *562

It has been insisted in argument, that as the instrument contains unequivocal evidence of the intention of both, it necessarily shows the intention of each of the parties; and therefore is the will of each. Assuredly each did intend the disposition contained in the supposed will, such and in the form therein declared, but it does not thence follow, that either definitely intended such a disposition of her interest therein, after her death. It does not conclusively appear, that if either had made a separate testament, such testament might not have contained a different disposition. If, from the joint declaration, we are to form any inference as to the separate purpose of each, I should conclude, that at all events, it was designed that the survivor should take for the term of her life, the property of the other. In this respect, at least, the will of each would have varied in terms from that before us. It would have varied also in itsoperation. For if this be held the separate will of each, then, upon the death of one, her whole interest devolved upon her executor, in trust for the legatees therein named, after the death of the other, and, until that event, in trust for the next of kin of the deceased. Besides, non constat, but for the purpose of carrying into execution the joint arrangement wholly, and in the form agreed upon, an entirely different disposition would have been made. Both purposed that the legatees should take the respective things given, and as they were given, but neither may have desired that they should take, at all events, an undivided moiety thereof. It may have been, that the arrangement contemplated, was, as a whole, deemed well suited to the interest, advancement, and comfort of the common family of the parties, and may have accorded with the feelings which they entertained towards the human beings who constituted the principal part of the subject of this arrangement, while the same considerations might have prompted each, in making an independent will, to select different legatees, and to bequeath in a different way. But it is not necessary that we should see a separate purpose, different from that evidenced by the joint act; it is enough that the joint act contains no definitive evidence of the separate purpose of either. *563

Although no instrument has operation as a will until the death of the testator, yet if it be not valid as a testamentary instrument when executed, no circumstances occurring afterwards, (short of a republication by the testator,) can make it such. The determination, therefore, of the question, whether this be the separate will of one of the parties, must be the same as it would have been, if the other were yet alive, or had died after revoking this instrument as her will, and making a different testamentary disposition of her property.

Another, and, as I think, equally insuperable objection to the probate of this instrument as a will, is, that whatever name may be given to it by the parties, it is, on its face, an agreement or compact; and cannot, therefore, be a will. Upon the face of the instrument, there is manifestly an agreement between two, for the disposition of the property of both. It declares the assent of two minds to one common purpose, which neither was individually competent to effect; and it is, therefore, a compact. Now, it is immaterial in what form a will is made, whether it be in form of a deed-poll, indenture, marriage settlement, bond, letter, note, draft, receipt or endorsement, provided, that it evinces the fixed independent purpose of an individual, with regard to the disposition of his property after his death. So, an instrument, testamentary in its form, if it manifests no more than a compact, or an agreement between two, must be treated as such, and cannot be converted into an instrument testamentary in its character. It does not become us to say whether this agreement, or compact be well executed, and if not, whether it be one the execution of which, could be enforced by either of the parties, or can now be enforced by those who were to derive benefit from it. How it may be considered, when brought before the proper forum for the adjudication on agreements or compacts, a Court of probate is not competent to inquire. When such a Court sees that it declares the agreement of two, and not the separate volition of one, a conclusion in which an interchange of opinions, and a compromise of interests has resulted in regard to a subject exclusively belonging to neither; and not the spontaneous *564 determination of one claiming to exercise sole dominion; such a Court cannot pronounce it the will of either. To use the language of Lord ROSSLYN, in Warner v. Matthews, 4 Ves. Jun. 209, it is not a complete definite rule and law made by the owner for the settling of her fortune after death.

I rely with more confidence on the correctness of this opinion because it has the sanction of one of the ablest judges on testamentary law. The case of Hobson v. Blackburn, 1 Addams' Reps. 274, (2 Eng. Eccl. Rep. 115,) is strikingly similar to that before us. Martha, Susanna, and Joshua Hobson, sisters and a brother, executed an instrument in writing, which, in the beginning, they called an assignment, but, in the end, expressly declared their will, "in the case of each other's decease." By it, provision was made upon the death of one, for the benefit of the two surviving, and upon the death of two, for the benefit of the last survivor, with limitations thereafter to their other brothers and sisters, and they thereby constituted each other with their brothers William and George, executors thereof. Joshua died, and a probate of this instrument as his will was granted to his two sisters, Martha and Susanna, and his brother George, three of the executors therein named. Martha afterwards died, having made, as was alleged, a separate testamentary disposition of her property. Probate of the joint will as the will of Martha, deceased, was prayed by George Hobson, one of the surviving executors therein named: and letters of administration, with the separate will annexed as that of the same deceased, were prayed by her nieces who were legatees in it. The allegation propounding the joint will was in the common form, except thatit pleaded the death of Joshua Hobson, and that probate of the said jointwill as to the effects of the said Joshua had been taken by the deceased. The admission of this allegation was opposed. Sir JOHN NICHOLL declared that he had no hesitation whatever, in rejecting the allegation propounding the joint will, as that of the party deceased, on the principle that an instrument of this nature is unknown to the testamentary law of this country, or in other words, that it is unknown as a will to the law *565 of this country at all. "It may," he observes, "for ought that I know, be valid as a compact. It may be operative in equity, to the extent of making the devisees of the will, trustees for performing the deceased's part of his contract. But these are considerations wholly foreign to this Court, which looks to the instrument entitled to probate as the deceased's will, and to that only. The allegation plainly proceeds upon a notion of the irrevocability of the instrument which it propounds as the will of the deceased. Why this very circumstances destroys its essence as a will, and converts it into a contract, a species of instrument over which this Court has no jurisdiction. Upon these broad, and, as I apprehend, sufficiently intelligible grounds, I reject this allegation."

The counsel for the plaintiff, in commenting upon the case of Hobson v.Blackburn, insists that it decided no more than that, as the will of Martha Hobson, it was revocable, and had been in fact revoked by her testamentary disposition of a subsequent date. Certainly I do not so understand it. According to the practice in the Prerogative Court. (see note page 11 of 1 Eng. Ecl. Rep.) the facts intended to be relied on in support of any contested suit, are set forth in a plea which is termed an allegation. This is submitted to the inspection of the counsel of the adverse party, and if it appears to them objectionable, either in form or substance, they oppose the admission of it. If the opposition goes to the substance of the allegation, and is held to be well founded, the Court rejects it; by which mode of proceeding, (analogous to that of a demurrer to a bill in equity,) the suit is terminated without going into any proof of the facts. The case was heard on opposition to the admission of the allegation propounding the joint will as the separate will of the supposed testatrix, and not upon the allegation propounding the subsequent will. The allegation opposed did not bring the question as to the execution of the subsequent testamentary paper before the Court. The sufficiency of the allegation opposed, was the sole matter, then under consideration and the allegation was rejected not because the will propounded had been revoked, that would be a matter for subsequent *566 inquiry, if the allegation should be admitted, but because the instrument so propounded as the will of the deceased, was a conjoint or mutual will, and, therefore, as a will, entirely unknown to the law. The only remark respecting the "notion of its irrevocability," was to explain more distinctly the reason why a conjoint will was unknown to the testamentary law. Such an instrument is regarded as a compact. Compacts are not wills and differ from them, (besides in many other important particulars,) essentially in this, that compacts (if valid) are irrevocable, while wills are revocable.

The counsel has also remarked, that in the case decided by Sir JOHN NICHOLL, as also in the case of Dufour v. Percira, Dickens Rep. 419, probate was in fact granted on a joint will, as the will of the testator who died first, and he insists that this is some evidence, that the words of that learned judge, are not to be understood in the broad sense attributed to them. I think, that the probates thus granted, without contestation and sub silentio, afford no evidence to this purpose. The mode of proceeding was no doubt, by what is called a simple condidit, setting forth the execution of an alleged will, and the sanity of the testator, and did not bring to the notice of the Court, the joint character of the instrument propounded.

The cases of Dufour v. Percira, Walpole v. Oxford, 3 Ves. Jun. 402, andHinckley v. Simmons, 4 Ves. Jun. 160, are cases in which conjoint or mutual wills have been set up, or attempted to be set up in equity, not as wills but as compacts, and need no further explanation than that given in the judgment of Sir JOHN NICHOLL, already stated.

RUFFIN, Chief Justice. — I fully concur in both the reasoning and conclusions found in the opinion of Judge GASTON. *567

Concurrence Opinion

Ruffin, Chief Justice.

I fully concur in both the rea soning and conclusions found in the opinion of Judge Gaston.