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testamentary schedules, whereof one was without date; to the second the words 'in witness' were subjoined ; and the third concluded abruptly: yet, being written by the testator, they were declared to be his will. In the same manner, and about the same time, viz, in the year 1711, in a case of Worlick v. Pollett, before the Delegates, where the testatrix had sent for a person to make her will, and given him instructions for the same, and the will was accordingly drawn, read to, and approved by her, and declared by her to be her last will, and three witnesses were sent to see her execute, the words signed and sealed being already written, but she died before any other execution, it was held a good will before the Delegates, who affirmed the first sentence which had been reversed upon an appeal.
And again, in a cause of Brown v. Heath, determined in 1721, where a will of real and personal estate was prepared in order to be executed, though there were several blanks in it, and the testator died before execution; yet it was held a good will of the personal estate, and though more was intended to be done, yet it was adjudged that it should be good for what was done.
But the later determinations at Doctors Commons, seem tending to establish a more discriminative doctrine. It now appears to be agreed, that if a testator leaves an instrument, which, upon the face of it, carries evidence of an intention in the framer to
perfect it by some further solemnity, which he died without having superadded, having had afterwards sufficient time and health and recollection to complete it, such paper may be inferred not to have been intended to operate as it stood, and the omission to perfect it may ground a presumption of a change of mind in the deceased. Thus, in a late case, where a person had written a paper, purporting to be a disposition of his property, to which a clause of attestation was added, but not filled up, sentence, as I am informed, was pronounced for an intestacy upon an inference, from this omission, of change of intention. And, where another person had sealed the paper propounded for a will, without signing it; a similar determination was given upon a similar ground.
Griffin v. Griffin (3), determined at the Commons a very few years ago, was decided upon the same principles. Richard Griffin executed a testamentary paper, dated 27th September 1777. On the 18th of January 1789, he began a paper, and having written no more than the commencement of what he meant to do, being called away to dinner, he locked up the paper.
On the 27th of the same month he died suddenly, while sitting on the bench as a justice of the peace. The questions were, whether this unfinished paper was a revocation of the former paper
(3) Cited in Matthews v. Warner, 4 Vez. jun. 197. note (a) and see ex parte Fearon 5 Vez. jun. 644.
executed in 1777: or, whether it was to be established substantively, and conjunctively with the former paper. It was determined, that the unfinished paper could have no effect; the testator having lived eight days after making it, in health and capable of business; and not having concluded it, the presumtion of law, even if there had been no other paper, would have been, that he never meant to finish it; or that it was intended only as a draft for consideration; and the case was still stronger as there was an executed
on which the Courts act in
The same doctrine is recognized by Lord Eldon, in the late case of Coles v. Trecothic', who thus expresses himself on the point: “ The observation is just, that as to personal estate, if it appear upon the will, that something more was intended to be done, and the party was not arrested by sickness
or death, that is not held a signing of the will.” Of the principle It seems, therefore, to be now understood, that not
every scrap of paper which a man writes in conreceiving or rejecting informal templation of death, making mention of intended
dispositions of his personal property, will be received in the Ecclesiastical Court as testamentary; but it must appear, and that from the paper itself, and not from extrinsic evidence, that the writer intended the paper to operate as it stood when it was written, without contemplating any farther act to be done to give to it its perfection and full au
papers as testamentary
1 9 Vez. jun. 249.
thenticity; and this intention, every such paper, if it contains dispositions of personal property prospectively to the decease of the party, will be held to import, unless by its mode of expression of manner of execution, it discloses a suspended intention in the party framing it.
It seems hardly necessary to say, (the proposition being implied in what has gone before,) that the paper must appear to be written with the actual design of disposing after death of the property in question. There must be the animus testandi, which is rendered in the Touchstone', by the expressions of "a mind to dispose—a firm resolution and advised determination to make a testament; for it is, says that book, the mind not the words which doth give life to the testament.” Therefore, continues the same author, "if a man rashly, unadvisedly, incidentally, jestingly, or boastingly, and not seriously, write to say, that such a one shall be his executor, or have all his goods, or that he will give to such a one such a thing; this is no testament, nor to be regarded.” Upon the whole, therefore, the mind and intention seems to be every thing—the manner nothing. Insomuch, that if a testator, by a paper, subsequent to his will, says he has bequeathed personal property, which in fact he has not bequeathed, the paper may be proved as testamentary, and the property may pass by itp. And
even an indorsement on a note, “I give this note to A.” it is said may be proved as testamentary”. But it is worthy of observation, that where a testator had left five testamentary papers, inconsistent with each other, and probate of all had been granted in the Spiritual Court, Lord Eldon lamented that there was no solemnity necessary for personal estate, and that he thought it would be expedient to apply the provisions of the statute of frauds to personal estate'.
Of nuncupative wills and revocations.
Nuncupative revocations of personal wills, delibee ratively made and solemnly executed, were likewise an object of special prohibition by the legislature in the statute of Car. 2, which, in the 22d section has enacted, that " no will in writing, concerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein be altered or changed, by any words, . or will by word of mouth only, except the same be, in the life of the testator, committed to writing, and after the writing thereof read unto the testator, and aħlowed by him, and proved to be so done by three witnesses at least.”
A remarkable case', which happened in Lord Nottingham's time, has been said, to have given rise to
1 4 Vez. jun. 565. Chaworth v. Beech, and see 3 Vez. jun. 160.
5 Vez. jun. 280. Beauchamp v. Lord Hardwicke, 4 Vez. jur. 208.
· Vide Matthews v. Warner, 4 Vez. jun. 196. note (a).