Boofter v. Rogers

Magruder, J., delivered the opinion of this court. The issues in this case certainly are not those which are usually sent from the orphans court, for trial by jury, in cases of this description; and are so framed, that a verdict in favor of the petitioner, which was sometimes asked, would have been of no advantage to the appellants. They do not, indeed, refer to the paper, JR. No other paper, however, was produced; no attempt was made to prove that any other, which could be regarded as the last will and testament of the deceased, was in existence. In order to make a paper the last will and testament of a deceased person, at the time it is written, it must appear that such person possessed the animum testandi, at that time. A paper, although not a last will and testament at the time it is written, may be made such afterwards, by adoption. A paper, though intended merely as instructions, or a memrandum to enable the scriviner to prepare a will, if the more formal act be left unfinished, may be made a will, by any act which the law pronounces to be the act of God. 2 Eccl. R., 144. 6 Eccl. R., 19. 2 Addams, 490. 5 Eccl., 188. There must, however, be a continuance of the intention of the deceased, down to the time when the act of God prevented the execution of the formal instrument. An immediate, sudden death, is not required, if according to the proof, the jury are satisfied, that there was no change of intention, in regard to the provisions of the will. [54] In the case of Tilghman vs. Stewart, 4 H. & J., 156; and Brown vs. Tilden, 5 H. & J., 371, the court had not the aid of a jury, and was to settle the facts as well as the law. In pronouncing their judgment they necessarily decided questions, the decision of which, in the trial of issues by a jury, belongs exclusively to the latter. An instruction given to a jury, is not necessarily correct, because it is given in the very words which the court of last resort used in a case wherein they acted both as judge and jury. With this understanding of the law, we proceed to notice the prayers of the appellant, in the course of the trial of these issues. The court was correct in refusing to give the instructions asked by him, because all of these instructions take from the jury the inquiry, whether the deceased, at the time of prepay ing the paper, or at any other time, to which the prayers refer, was of sound and disposing mind and memory, and capable of making a valid contract? There certainly was testimony going to question his sanity, and of the weight to be given to that, testimony, the jury were to be the judges. So if the design of any of the prayers was to obtain an instruction, that the paper, though not originally intended as a will, was afterwards made so by adoption, or because without any change of purpose, he was prevented by death from executing a more formal instrument, the prayer ought to have been so framed as to inform the jury of what the evidence must satisfy them, in order to warrant a verdict, establishing JR, or any other paper, as the will of the deceased. It does not appear that in this case any attempt was made to satisfy the jbry, that it was obtained by fraud, or the exercise of undue influence. It appears to the court, that a similar objection is to be made to the prayers of the appellee. If it be a question, made so by the proof, whether the paper JR, became, by adoption after-wards, the will of the deceased, or whether it became his will by the act of God, as before stated, the instruction should have informed the jury, what they were to find from the testimony, in regard to it, in order to obtain a verdict, that such paper was [55] not what the petitioner alleged it to be. If, from the proof, the jury could find, that it became at any time such last will and testament, there are defects in the prayers of the appellee, because of which the instructions of the court must be decided to be erroneous. A paper, though intended merely as instructions, or a memorandum to enable the scriviner to prepare the will, is to be admitted to probate, if the more formal will be left unfinished, by reason of any act which the law pronounces to be the act of God. 2 Hag., 211. 6 Eccl. R., 330. There must, however, be a continuance of the intention, down to the time when the act of God intervened, and prevented the deceased from executing his purpose. When there is testimony to authorise a belief that there was no change of his intention, this question should be left to the jury. To the first prayer it is a fatal objection, that according to it, the paper JR, could not be pronounced by the jury to be the will of the deceased, although the deceased never changed his purpose of so disposing of his property, and was prevented from executing a more formal instrument by his death. The second declares that it is not to be considered his will, unless it was written by said Rogers, animo teslandi, and intended, as it stood, to be his last will and testament, which, for reasons already given, is erroneous. The third would take from the jury the power of deciding, quo animo, the declarations were made. They might have been intended to escape from importunity. According to the fourth, the appellee would have been entitled to a verdict, if the testimony satisfied them, that the paper, “JR,” was placed by said Rogers in the hands of Gnu/, as instructions to prepare a will, to be thereafter executed; and although he afterwards adopted it as his will, or was prevented by the act of God from executing a will, in all its provisions the same as the paper of instructions. The court, therefore, agree with the court below, that the instructions asked by the appellant, ought not to be given; but says there is error in granting the instructions asked by the appellee. The cause is remanded for further proceedings, and a new trial. cause remanded