21 Tenn. 202 | Tenn. | 1840
delivered the opinion of the court.
Samuel Owen, in his last illness, and the day before his death, caused one of his neighbors to be sent for, with the purpose of having his last will prepared. He had for some years been unable to speak, but could readily communicate his thoughts by signs to the family, and also to them, and to others, by indicating words in a dictionary. He was in the full possession of his mental faculties. To the draughtsman of the paper propounded as his will, he indicated his wishes in the manner above stated, by pointing to the leading and important words in a dictionary. When the clauses were written in this manner, they were separately read to him, and he assented to each, and when they were all written he read the entire instrument as far as prepared, himself, and assented to the whole, and this comprised the entire instrument propounded as his will, except the appointment of an executor, and the attestation clause. The process of preparing the instrument was tedious and exhausting, the draughtsman not in good health, and at 10 or 11
“I, Samuel Owen, do make and publish this my last will and testament, hereby revoking and making void all other wills by me at any time made. First. I direct that my just debts be paid, as soon after, my death as possible, out of any monies I may die possessed of, or may come into the hands of my executor. Secondly. I give and bequeath to my brother James C. Owen, my boy Stephen, my carriage, my gold watch, my young gray'horse by Sir William, also one thousand dollars of Turnpike stock, to wit, twenty shares in the Harpeth Turnpike. Thirdly.. I give and bequeath to my niece Narcissa Robert Owen my bed, my sorrel filly by Pacific, also one thousand dollars of Turnpike stock, to wit, twenty shares in the Harpeth Turnpike. It is also my will, that James C. Owen hold the above named items as agent for the above named Narcissa R. Owen, and use it as agent for her benefit, and in the event of her decease, without issue, it is my will that the said James C. Owen shall have said property. Fourthly. I give to my brother James 0. Owen, for the benefit of my three nephews, Burnett H. Beasley, Charles C. Beasley and Felix O. Beasley, and I hereby constitute and appoint him agent, to hold, to use and disburse for their (the said Beasleys) benefit, the following items, to wit, one thousand dollars in Turnpike stock, to wit, twenty shaz'es in the Harpeth Turnpike. Fifthly. I will and bequeath my executor sell my land, lying on Mill creek, also my negro man Tom, also my land in Warren and Cannon counties, to wit, my interest in these lands. I will to be sold also, all other property, of whatsoever description, of which I may die possessed of, and the proceeds of which, together with the, monies in my possession at the time of my decease, also the money due to me by bonds or accounts, when collected, to be appropriated as above bequeathed. If any*215 surplus should remain in the hands of my executor — My desire is, that Tom should select himself a home, and be sold privately for a moderate price. Sixthly. I leave in the hands of my executor, of the money due me and to be raised as above directed, one hundred dollars for erecting tombs, and fifty dollars for fencing grave yard.” (I do hereby nominate and appoint James O. Owen my executor. In testimony whereof, I do, to this my last will, set my hand and seal, this 20th October, 1838. Signed, sealed and published in our presence, and we have subscribed our names hereto, this 20th day of October, 1838. Ferdinand Moore. Everett Owen.)
The above paper, except as to the latter portion of it, enclosed in brackets, containing the appointment of an executor, and an attestation-clause, and except, also, as to the real estate, was found by the jury in the circuit court, to be the last will and testament of Samuel Owen. Guthrie and wife, by their counsel, moved for a new trial, which being refused, they have prosecuted their writ of error to this court.
The correctness of the charge of the court, set forth in the record, has been but slightly questioned in the argument here, except in one particular, which we shall hereafter indicate. The argument of counsel has turned mainly upon the facts and circumstances attending the drawing up of the paper propounded, upon the state in which it was left, and the bequests contained in it. The instrument is unexecuted, and so far merely as relates to the appointment of an executor, and a clause of attestation, it is imperfect. It has not been controverted, that a paper unexecuted, and, in some instances, an imperfect paper may be set up as a testament, where the want of execution, or its being imperfect has been produced, not by abandonment, or change of purpose, on the part of testator, but by the act of God, that is, by extreme illness, mental alienation, sudden death, &c., if the paper, as far as it goes, express the will of the deceased, continuing to the time of his death, and if upon the face of the instrument it can be seen, that the legacies given to the objects of testator’s bounty, and the benefits conferred, would not, if the will had been finished, have been burthen-ed with charges in favor of others: in short, if it express his whole will ssfar as it goes.
The paper before us, was prepared slowly and with great deliberation, and under circumstances which made it more than ordinarily the work of testator himself. It was nearly finished; it proba
Upon the whole, we think, there is nothing which on grounds of Jaw or fact, ought to disturb the verdict and judgment which have been rendered in the case, and we, therefore, affirm them.