45 Tenn. 129 | Tenn. | 1867
delivered the opinion of the Court.
At the August Term, 1865, of the County Court for the County of Cheatham, a paper writing was propounded for probate, as the last Will and testament, and codicil thereto, of W. G. Shelton, dec’d. The probate was contested, and the same was, by order of the Court, certified to the Circuit Court of said county, to be tried. An issue of devisavit vel non, was made up in the Circuit Court, to try the validity of the Will and codicil, upon which a trial was had, which resulted in a verdict and judgment in favor of the Will and codicil. A motion for a new trial having been overruled, the contestants have appealed in error, to this Court.
The writing propounded as the Will, is dated June 4th, 1846, is in the usual form, and is signed by the testator and by two attesting witnesses. The' writing propounded as a codicil to the Will, and upon which the principal contest arises, is upon the same paper, and immediately underneath the signatures of the testator and the attesting witnesses to the Will; is signed by the testator and dated July 9th, 1861, but is without witnesses. It is in these words: “Wm. Shelton nor
W. Gr. Shelton died in 1863. ,The proof shows, that the writing offered for probate as a codicil to the Will, is all in the handwriting of the deceased, and that his handwrite was generally known among his acquaintances. There is proof showing that sometime after the death of W. Gr. Shelton the Will was found in a bundle of deeds in his secretary. It also appears that, during the last several years of his life, he frequently spoke to his friends and acquaintances about making a Will, and the disposition he intended to make of his property; and upon one occasion, stated, in substance, that he had already neglected it too long; and never, so far as the record discloses, after 1858,' intimated that he had a Will. The plaintiff, who was the nephew of the testator, and the principal legatee and devisee under the Will, lived with him at the time of his death, and took possession of his papers. After which, hé said to one witness, his uncle said he had no Will; to another he stated, his uncle left no Will; and to another he stated, he had searched for a Will, and could find none. He also stated he thought the heirs ought to come together and give him the home place.
It is now insisted the proof does not show that the testator intended the writing, dated July 9th, 1851, should take effect as a codicil to, or part of his Will; and that the charge of* his Honor, the Circuit Judge, to the jury, upon this branch of the case, is erroneous; and that he also erred in refusing to give certain instructions asked for by the counsel for the defendants.
His Honor failed to instruct the jury, that it was
Under these instructions of His Honor, all the jury had to do was to inquire, whether the proof satisfied them that the instrument was in the handwrite of the deceased, and whether his handwrite was generally known among his acquaintances; and being satisfied the proof established these two propositions, they were compelled to find in favor of the codicil, without enquiring whether it had been found after his death among his valuable papers, or lodged in the hands of another for safe keeping, or whether the fact that it is in the hand write of the deceased, had been established by the testimony of at least three credible witnesses. Yet, notwithstanding these instructions are so strangely defective, His Honor seems to have had the statute before him, or at least, its provisions in his mind, for he says further: “That if they found the paper was witnessed by two subscribing witnesses, and signed by the deceased in the presence of the witnesses, and that the witnesses 'at
Under the rule laid down by His Honor, the jury, upon finding the writing was in the hand of the deceased, and that his handwrite was generally known among his
This Court has said, in construing the Act of 1784, chap. 10, sec. 5, the provisions of which are very similar to the provisions of the section of the Code before referred to, “No better definition of the meaning of the words ‘valuable papers,’ can, perhaps, be given, than that they consist of such as are regarded by 'the testator as worthy of preservation; in his estimation of some value. It is not confined to deeds for lands or slaves, obligations for money, or certificates for stock. Any others which are kept and considered worthy of being taken care of by the particular person, must be regarded as embraced in that description. This requirement is only intended as an indication on the part of writer, that it is his intention to preserve and perpetuate the paper in question, as a disposition of his property; that he regards it as valuable. * ' * *
Now, we think it follows from these definitions, and the reasoning of the learned Judge who delivered the opinion of the Court in this case, that, to give validity to a paper, as a testament under the provisions of the Code before referred to, it must have been deposited by the testator, or with his assent, among his papers which he regarded as valuable, or desired to preserve; or in the hands of another for safe keeping, with the intent that it should operate as his Will.
Suppose, then, in this case, the testator believed he had revoked the Will of 1846, whereby, he thought it of no value, and had consequently thrown it aside as worthless, with the writing attached, which is now propounded for probate as a codicil; and it afterwards turned out the testator was mistaken in the belief that he had revoked the Will, and, consequently, mistaken in his estimate of its value, could the writing attached be
It follows, then, that, as a legal proposition, the instructions given to the jury upon this point, are erroneous. Why, under the facts of this case,' as disclosed in the record, His Honor, the Circuit Judge, deemed it necessary to give such instructions, we are unable to conceive.
Other questions have been raised in argument, but we do not deem it necessary to notice them, further than to 'say, we think there is nothing in them. ,,
Eor errors in the charge of the Court, the judgment will be reversed, and the cause remanded.