Case of Barnet's Appeal

The opinion of the Court was delivered by Gibson, C. J. The few precedents in cases like the present to be found in the books, afford still fewer principles of general application, and individual cases must therefore stand in some degree on their peculiar circumstances. It seems that nothing has been settled as universally true, but that the animus iestandi must have been present. But it is to ascertain its presence, that determinate principles to interpret the decedent’s acts, are necessary. The certain, and, for the most part, equitable disposition of the law, ought not to be super-ceded but by a disposition of the decedent, manifested by acts which indicate his intention with reasonable and convenient certainty. Where .the paper contains the substance of a will with the usual act of execution subjoined, although without the names of subscribing witnesses, the fact that it was thus found in the decedent’s possession, ought, without actual publication, to be taken for prima facie evidence of its having been adopted as a testamentary act. Where, on the other hand, it is destitute of every formal act of authentication, the presumption ought to be ádverse in the absence of proof of actual publication or any other act of recognition equally satisfactory. In substance, this distinction seems now to be adopted by the Judges of the English Ecclesiastical Courts, by whom the omission to perfect an instrument which carries with it intrinsic evidence of a design to superadd an act of authentication which the decedent has not been prevented from' executing by sudden death, is referred to a change of intention; so that it is not every scrap of paper containing a disposition made in contemplation of death, Chatis received as testamentary. (1 Robertson Wills, ch. 1. § 17.) The distinction is a wholsome one, for no prudent man would venture to put pen to paper in digesting any testamentary plan, if a rude sketch were received as evidence of what is usually the last, most solemn, deliberate, and perhaps important act of his life. It was on the principle I have indicated, that Plumstead’s Appeal was determined. Two parcels of bonds and securities bearing on the envelope of each respectively the words “ For Rebecca Hutton,” and •“ For the heirsof George Plumstead,” were found in a box which had been kept in the possession of the decedent till her death. No one doubted that these indorsements were memoranda of an intended testamentary disposition; but having neither shape nor feature of a testamentary act, they were not admitted to probate. (4 Serg. & Rawle, 545,) The case of Arndtt v. Arndtt, 1 Serg. & Rawle, 256, seems to be easily distinguishable. There thepaper containedall the requisites of a'will when it was exhibited as such to Mr. Trail; and an [21] after intention to correct it, so as to obviate discrepancies then pointed out, would not make it the less so in the meantime, inasmuch as actual cancellation, and not merely a purpose to cancel, amounts to a revocation (Burns v. Burns, 4 Serg. & Rawle, 295.) This is conclusively true in respect of a will formally executed-; and it is not easy to say why it should not be so in respect of a will which, though destitute of the usual formalities, is nevertheless conceded to have been a will at the time. That it was so, I am unable to doubt; for the delivery of a paper which contains the essential parts of a will, to a scrivener to put it into form, can no more invalidate it as a testamentary act, than could the delivery of a will, already in due form, .to be fairly copied. It seems then that the defect in the argument of Mr. Justice Yeates, was in treating the intention to correct inconsistencies, as evidence that the paper never had been the decedent’s will, when, the intention was evidently only to revoke it pro tanto. From expressions of the other judges, it might seem that the paper contained even the formal parts of a will; and the inference from these, is strengthened by the fact that no objection was made, that the evidence of publication which, in theabsence of intrinsic evidence of actual adoption, would have been the life-giving circumstance, rested on the credibility of but one witness. Notwithstanding the dissenting opinion of Mr. Justice Yeates, for whose judgment and experience we, in common with the profession, entertain great respect, I am unable to refuse an unqualified assent to the propriety of that decision. The case at bar seems to be essentially different. Not only are the introductory words, “ This is my will,” -coupled with an et cetera which indicates an intention subsequently to prefix a more full and formal expression, as evidence of the act of adoption, but the face of the paper is blotted and blurred just as we might expect to find the first essay of a mind untrained to method and arrangement. Interlineation .on interlineation is crowded into the spaces between the lines, till the manuscript is, in places, scarcely legible. Whole sentences are obliterated, and entire passages cut off, crossed out, and repeated with material variations ; in addition to which, the decedent begins anew on a fresh leaf, to make, not a fair copy -of what preceded it, but an entirely new draught, varying from it in essential particulars; and even this is left unfinished from an inability, no doubt, to arrive at a satisfactory conclusion. The nature of this last attempt, may be inferred from its abandonment, which would hardly have ensued, had the object been a fair copy or even a more formal disposition according to a plan already matured; and that it was neither, is further apparent from the variance. This remark would be inapplicable, were the second paper viewed as an attempt to revoke. Yet were the first admitted to have been, at any time, a valid testamentary act, the cutting of it up into memoranda for an entirely new disposition, would be a revocation by actual cancellation. I take it, then, that the paper contains no sufficient intrinsic evidence of a testamen [22] tary intention; and this leads to a consideration of the evidence dehors. On the part of the appellees, it was proved that the decedent, being told of the death of a son, intimated an intention to change the disposition of his property; but whether this was predicated of a disposition already evidenced by a testamentary act,, or one only contemplated, does not sufficiently appear. Again, in reply to a female acquaintance who had jocularly hinted at a devise of one of his lots, he said his will was already made. This, however, seems to have been intended to parry the request; and it would be unsafe to adjudicate on the evidence of declarations .in the course of a conversation that called for nothing like a serious expression of the fact. On the other-hand, he had become inimical to one of the persons named in the alleged will as his executors. This, however, Would tend to prove a change of purpose, rather than that he had not adopted the paper at all. But subsequent to the making of the writing, he told another witness that he would draw up a rough sketch of his will, and submit it to him to put it into form; that he wanted to have his opinion on it, but did not intimate what disposition he desired to make ; and that in a conversation still later, .he spoke of the rough sketch as remaining yet to be made, saying that he had drawn up a rough draught before, but that it did not suit him now. In this, it is •evident, he alluded to the paper in controversy; and although even. a rough draught may be a testament where the necessary intent is clearly apparent, yet the natural deduction from the evidence here, is that the decedent viewed it as a mere outline to be filled up and completed by more detailed provisions; or that having viewed it as at one time complete, he had cancelled it, and used it as memoranda for a new disposition, and this latter inference is powerfully corroborated by the intrinsic evidence of the paper itself. Nothing decisive, then, is proved by the extrinsic evidence, the tendency of which is only to strengthen the inference from the face of the paper. We are of opinion, therefore, that the writing has not been established as the testament of the decedent, and that it ought not to be admitted to probate. Judgment of the Circuit Court reversed, and the judgment of the Register’s Court affirmed.