By the Court.
Lumpkin, J.,
delivering the opinion.
[1.] The first exception in this case is, that the Court which tried it, was illegally constituted, and had no authority to hear and determine the cause. And this exception is founded on the following state of facts, to-wit:
That on Saturday, the fourteenth day of May, said Court being then in session, was adjourned over till Monday, the 23d day of May. That on Sunday, the 22d day of May, John R. Sturgis, the Clerk of said Court, died. That on Monday, the day following, His Honor, Judge Iverson, attended at the Court House in said county, with the Sheriff, and ordered the Sheriff to open the Court, which he did, by proclamation; and after a short time, on account of the death of the Clerk, the Judge directed the Sheriff to adjourn the Court, till the hour of 9 o’clock, A. M., the next day. That on the next morning the Court was opened, according to adjournment; and there being no Clerk, the Judge appointed Abram B. Ragan, as Clerk for the time-being; and after remaining a few minutes, the Judge left the court house without adjourning, saying he would suspend business informally and without adjournment, until Monday, the 6th day of June next, following, at 10 o’clock, A. M.
Now, the point of exception, as I understand it, is this:— [628]*628That to have made these several adjournments of the Court, and especially the last one legal, there must have been a Clerk duly appointed, to attest the minutes, &c.
It is admitted that the Act of 1842, (Cobb’s Digest, 216,) confers the power upon the Judge of the Superior Gourt to appoint, temporarily, a Clerk, until the vacancy in the office can he filled by election. But it is insisted, that this Act, as well as those of 1819 and 1826, conferring the same power on the Inferior Court, (Cob, 212, 218,) are unconstitutional and void. By the 9th section of the 2d article of the Constitution, it is declared that when any office shall become vacant, by death, resignation or otherwise, the Governor shall have power to fill such vacancy; and persons so appointed, shall continue in office, until a successor is appointed, agreeably to the mode pointed out by the Constitution, or¿ by the Legislature. (Cobb, 1119.)
Originally, the Clerks of the Superior and Inferior Courts, were to be appointed in such manner as the Legislature might, by Law, direct. And this is still true as to Sheriffs. But by the 10th section of the 3d article of the Constitution, as amended in 1808, the Clerks of the Superior and Inferior Courts, are to be elected on the same day, as pointed out by Law, for the election of other county officers — that is, the first Monday in January. (Cobb, 1123.)
Hence, it is argued, that no one but the Governor had the power to fill the vacancy created by the death of Mr. Sturgis, the Clerk; and that when thus appointed, he would continue in office until the first Monday in January next, ensuing; and that, inasmuch as the Court could do no act — not even adjourn, without a competent Clerk to attest its proceedings, that it had no authority to act in June, 1853. But the Spring Term having lapsed, for want of a Clerk, the Court stood adjourned, by operation of Law, till the next semi-annual Term, in November.
We feel the force of this Constitutional objection. It would be doing it injustice, to say that it was plausible merely. It seems to my mind, at least, difficult to answer. Perhaps it is [629]*629for want of opportunity to give it a close investigation — it being unnecessary to consume time for that purpose at present.— Eor it is by virtue of this same 9th section and none other, that the Governor fills all vacancies in the Judiciary, the United States Senate, and all other offices under the Constitution.— And in no other case has it ever been supposed, that there was, or could be a concurrent power lodged anywhere else.— And yet, it is passing strange, that ever since 1819, at least, it seems to have been practically admitted, by all three Departments of the State Government, that the power to appoint Clerks and Sheriffs, ad interim, might be exercised by the Courts ; and it would seem to be one almost indispensable to the proper administration of justice. Without this power, how many terms of the Court would fail ? The repeated re-assert-ion of this right, by the repeated legislation upon the subject, and acquiescence on the part of the Executive, would almost, of itself, render it Constitutional. Eor, in this instance, we have not merely the concurrent action of two successive sessions of the General Assembly, but of a half a dozen, at least.
[2.] But fortunately, for ourselves as well as the country, we do not feel called on to decide this question. In the view we have taken of the matter, it can be satisfactorily disposed of otherwise. Our opinion is, that the exception itself, is based upon a false assumption; and that is, that the office of Clerk is necessary to the existence of the Court. While we hold that he is a very proper officer, to keep regular and fair minutes of all the proceedings of the Court of which he is Clerk — as he is required to do by the 34th section of the Judiciary Act of 1799, (Cobb, 573) — still, we are quite clear, that the Court can live and move and have its being without him. It can keep its own minutes, by entering them itself, and signing them, as is now done; and make its own adjournment from day to day, or for a longer time, to suit its own and the public convenience, without a Clerk. Nor is there anything in our Statutes, which is repugnant to this conclusion. There are some things, perhaps, which the Clerk alone can perform; but as to adjournments, he has neither part nor lot in the matter.
[630]*630And thus, without seeking to answer the Constitutional objection, which has been framed so artfully that the ends of the cords can with difficulty be perceived, we cut at once the Gordian Knot, and thereby extricate the case from the preliminary difficulty in which it was supposed to be entangled.
After the introduction of evidence on both sides, in connection with his chai’ge to the Jury, the Judge was requested by the caveators to instruct them, that “ If the will propounded disposes of real and personal property, and has an attesting clause, and no witnesses, they must find against the will, as to the persona], as well as the real property, unless the testator declared it as his intention that it should be good as to his personal estate”.
We hold that the Court was right, in refusing to give the charge as asked. It is too restricted. It maintains that the presumption of Law against the will, under the facts assumed, can be rebutted only by the declarations of the testator; whereas, the true doctrine is, that extrinsic evidence of any sort, whatever, may be given in for this purpose.
The Jury having found for the will, the caveator moved for a new trial:
1st. Because the Court erred in overruling the objection to its own legality.
2d. In refusing to charge the Jury as requested.
3d. Because the verdict was contrary to Law.
4th. Because the verdict was contrary to evidence.
The motion for a new trial was overruled, and caveators ex-eepted.
Having already disposed of the first and second grounds on which the new trial was asked, I will proceed to consider the two last together. Was the verdict, setting up the testamentary paper propounded, as the will of William Pace, warranted by the Law of the case, as applicable to the facts proven ?
[3.] It becomes necessary, in the first place, to ascertain and fix accurately, the rule of Law which governs this case.
[4.] As to the disposition of personal property, I need scarcely remark, that no form is necessary. And often, the [631]*631nearer the instrument approaches to form, and falls short of complete formality, the more incomplete it becomes.
[5.] The elementary works teach, that a will may be informal, yet complete ; or formal, yet incomplete. And the question, in every such case, is not whether all is done which the Law requires; but whether eArerything has been done which the party thought necessary.
[6.] For if it should appear! that he intended to add forms which are unnecessary, yet the instrument will be bad.
[7.] The intention of the testator must not only be final, as to the dispository clauses of the will, but as to the execution also.
[8.] The law has fluctuated at different periods upon this subject. But the rule laid down by Sir John Nicholl, in Beaty vs. Beaty, (1 Addam’s Eccl. Rep. 154,) is now received as the true doctrine. He says, “ As the natural inference to be drawn from an attestation clause at the foot of a testamentary paper is, that the writer meant to execute it in the presence of witnesses ; and that it was incomplete in his apprehension of it, until that operation was performed, the presumption of Law is against a testamentary paper, with an attestation clause, not subscribed by witnesses.” The learned Judge admits, that the presumption against an instrument so circumstanced, but perfect in all its parts otherwise, is slight; yet, slight as it is, he holds that it must be rebutted by some extrinsic evidence.
All the adjudicated cases, conclusively establish that this was the uniform doctrine of the Ecclesiastical Courts, from an early period, until the decision of the Delegates, in Cobbold vs. Baas, (4 Ves. Jun. 201, in notis.) That case was decided in 1781; and we admit, bears a strong resemblance to the one under consideration. The Attorney had prepared the original draft of the will, in which James Savage, the testator, made several alterations; but afterwards re-wrote the whole, in [a fair hand, and subscribed his name to each of the sheets, and to the last, affixed his seal. There, as here, the clause of attestation was not subscribed by any witnesses. The paper was considered imperfect by Dr. Calvert, the Judge of the Prerog[632]*632ative Court, on account of this omission. But on appeal to the Delegates, Sir Wm. Henry Ashurst, Sir Beaumont Hot-ham and Dr. Mucham were of opinion that it being a will, both of real and personal property, it was upon the reddendo singula singulis construction — a perfect disposition of the personal estate ; and consequently, they reversed the judgment of the Prerogative Court.
But this case being decided after May, 1776, and before which, there had been an unbroken current of authority the other way, from the earliest date up to the year when it was made, cannot be considered as binding here, although it did, for some time, govern the English Courts.
In 1798 the Court of Delegates still followed this objectionable precedent, as they allowed it to be, in Matthews vs. Warner, (4 Ves. Jun. 194); and notwithstanding much dissatisfaction had been previously expressed at this innovation on the old practice. But on application to the King in Council, for a Commission of Review, the question was referred to the Lord Chancellor. In conformity with his opinion, a commission was issued to the Bishop of London, Lord Kenyon, Ch. Justice ; and Lawrence McDonald, Ch. Baron of the Exchequer ; Sir Wm. Scott, afterwards Lord Howell Brooke, one of the Justices of the Common Pleas; and two Doctors of the Civil Law. In November, 1799, this Court, consisting as it did, of the most distinguished Judges and Civilians in England, reversed the decision of the Delegates, and restored the Testamentary Law of that country, as it existed there, at the commencement of our revolution.
[9.] The result, then, of this brief chronological review, as well as an examination of all the authorities collected in Roberts on Wills, ch. 1, § 17, as well as Jarman on Wills, page 94, and notes, first American edition, establishes the principle already announced, namely, that the writer must have intended the paper to operate as it stood, without any further act to complete it.
[10.] And that, although a paper may have all the legal requirements of a will, yet, if the testator, with a view to give it [633]*633efficacy, has chosen to prescribe to himself a special mode of execution; and afterwards fails to comply with these formalities, the inference to be drawn from this circumstance is, that he had not fully and definitely resolved on adopting the paper as his will.
Let us now apply this Law to the testimony in this case.
On the trial, a variety of testamentary papers were introduced. The will propounded, bears date the 4th of February, 1847. There are two other wills of the same date, and all in the hand-writing of the testator, and all signed by him. The will propounded for probate, has an attestation clause, but no witnesses. It disposes of real, as well as personal property.— It was found after the death of Mr. Pace, in one of the drawers of the family bureau, mixed up with other papers and the other wills, with no envelope, or label, or other mark of designation, to distinguish it from the rest.
Besides the three wills of the 4th of February, 1847, there was one found, bearing date the 30th of April, 1832, and which disposes of all of the testator’s estate, real and personal, and which has an attesting clause, and is properly executed, having the requisite number of witnesses. Besides these, there was another, bearing date the 1st of August, 1847. None of the wills, except that of 1832, is properly attested. And but one other out of the five, has the attestation clause annexed to it; and that is another one of the three bearing date the 4th of February, 1847. Besides these five wills — all of which were read on the trial — there was another, without date, partially written out, in the hand-writing of the testator, and found with the rest, amongst his other papers in the secretary.
Now, let us see by which of the witnesses the propounders propose to prove, that the paper which they offered for record, contains the final purpose of William Pace, respecting the disposition of his estate. It is by Mrs. Mary Pace, the widow, and Dr. Frederick W. Pleasants. The former was examined twice — once by the propounders, and once by the caveators.— And what is the substance of her testimony ? She states- that she knows that it was the will and wish of her late husband;[634]*634that his personal property should be bequeathed as it is by this instrument; that she knows it to be the last will he made; and that it was written in July or August, 1850. It will be perceived, that thus far, the witness gives her opinion only.— Would this testimony alone, authorize the paper to go to record? Most clearly not. The Court and Jury must hear from the witness the facts from which she formed her opinion — for such it is merely — and see whether or not they justify the conclusion to which she came. Then, by reference to her further answers, she states fully the reasons of her belief, which are these: “ One night Mr. Pace took his candle and wrote until she became tired and laid down. After some time he spoke, and asked her if she was awake — and told her to get up, and he would read to her what he had been writing. She did as requested, and he read over the paper twice, and inquired how she thought it would do ? She replied, I suppose that is your wish. He answered that it was. I told him it would do very well, but one thing, and that was, that Lany was there given to William, who lived in Alabama, and that she did not want her to go there. So he immediately, according to her wish, erased Lany and interlined or inserted Chany in her place ; and then disposed of Lany otherwise, in the latter part of the will”. So much for Mrs. Pace, the witness mainly relied on to establish — not that her deceased husband was of sound and disposing mind and memory, when this paper was written, and that the whole is in his hand; but that it is his will, or what is the same thing in the present case, that notwithstanding the clause of attestation, he abandoned his intention of having it filled up. It has been suggested, that if the will was good in 1850, as testified to by Mrs. Pace, a change of mind must be shown subsequently, to defeat it. The failure to have it witnessed, keeps it open and unfinished. And therefore, there is no necessity to prove a subsequent change.
I have inspected, carefully, the original papers which were submitted to the Jury on the trial, and I think that there can be no doubt but that the will propounded was written in February, 1847; and 'that the alterations apparent upon its face, [635]*635and evidently of a later date, were probably made on the night to which the old lady’s testimony refers. Mr. Pace, intending to make a will, for it is quite clear that he did not intend to die intestate; and equally so, that his intention as to the final disposition of his estate, was unsettled and ambulatory — I repeat, that intending to make a will, he commenced writing, and that is the paper partially drawn up, without date, which was found with the rest, and produced and read on the trial. He remembers, however, the old wills of 1847; and getting one of them, makes the interlineations which it exhibits. I forbear to state the reasons which lead almost irresistibly to this conclusion.
I submit the inquiry — is there a particle of proof to show that Mr. Pace had abandoned his intention of having this will attested? He certainly prepared a clause with that view, either in 1847 or in 1850. What is there in the evidence of Mrs. Pace, to manifest his purpose of dispensing with this formality ? True, she testifies that she knows this paper to contain the will and wish of her husband, as to his personal estate. But does she know that he had given up his original design of having it witnessed ? And what fact or circumstance does she state, from which it could be inferred that this paper was any more the will and wish of her husband, as to the personalty, more than to realty ?
She says, that after he had written the will, he called on her to say whether she was satisfied with it. Satisfied with what ? Why, undoubtedly with the disposition he had made of his property, and not with the- form of the paper as it then stood. This question, we all know, is asked before the final execution of the will, in order that changes may be made, if thought advisable, upon consultation. It certainly establishes any thing, but the completeness of the paper, as to form.
The witness is under some mistake, as to the disposition of Lany. Eor, by reference to the will, that addition to it was unquestionably -written at the same time with the body of the instrument. Besides, there is another will of 1847, containing the same provision.
[636]*636Well, what does Dr. Pleasants swear ? That he had a conversation with Mr. Pace, on Friday before he died on Sunday, in which he stated that he had his will written. This very language rebuts the idea that the will was finished. He did not say even, that the will was made ; but simply that it was written. He died suddenly, three days afterwards. But this conversation was not in expectation of that event; and was long posterior to the period, when, according to the testimony of Mrs. Pace, the final alterations were made in his will.
[11.] In the case of Beaty vs. Beaty, already referred to, Sir John Nicholl well remarks: “ That' the mere vague declarations of testators, that they have made their wills, are not always to be implicitly relied on; and can never, standing singly, supply proof of due execution; or consequently of what is to be taken in lieu of it.” “ In common parlance,” continues the learned judge, “ a man may well say that he had onade his will, when he has written a testamentary paper, though unfinished”.
I propose, now, to test this case by some others which are reported upon the same subject. I will select a few only.
Painter vs. Painter, cited in Merivale’s Ch. Rep. 512, arose on a will both of real and personal property. It was written by the testator, with his own hand. It was signed and sealed, and had a clause of attestation, but no witnesses. It was locked up with other papers of moment. The testator had frequently declared that he should leave a will; and that he meant that the same should operate on his personal property. He died suddenty, and this will was pronounced against.
Stokes vs. Perry, (ib.) is another case. Mary Oollett made a will of real and personal property, all in her own hand writing ; subscribed her name, but did not seal it. It had a clause of attestation, but no witnesses. She died suddenly. The will was found locked up in a chest of drawers, inclosed in a piece of paper, on which was written, in her own hand, “Mrs. Collett’s will” ; and on another part of it, “ My will”. On the evening prior to her death, the testatrix had asked her [637]*637nephew, as to her power of leaving two houses; and she- Elicit said, that she had left them, with some other things, to the very persons to whom they were bequeathed in the will. The will, however, was rejected.
It requires but ordinary powers of discrimination, to see how much stronger this case is, than the one at bar.
Another leading case, is Walker vs. Walker, 1 Merivale, 503, tried before the Court of Delegates, composed of three Common Law Judges, and five Doctors of the Civil Law.— Here, the testatrix made a will, of real and personal property, and signed and sealed it. A clause of attestation, in the common form, was subjoined, but not witnessed. And her will was found, at her death, in an envelope, on which was written: “ I sign and seal my will, to have ready to be witnessed, the first opportunity I could get proper persons”. It was decided that the will was not good as to the personal property.
It is conceded by counsel for the propounders, that if the will of Mr. Pace had been found in an envelope, with a superscription precisely similar to that on Mrs. Ann Walker’s will, that it could not be established. This concession, which they were constrained, by authority, to make, we submit is fatal to their case. Eor the legal interpretation of a clause of attestation, without being filled up, is precisely, when written out in words, what was endorsed on Mrs. Walker’s will.
Giving full faith and credit to all the testimony which is adduced to sustain this will, what does it amount to in Law ? Nothing more than this: “ My will is written — I have signed and sealed it — read it over to my wife, who, with certain alterations which she suggested, and which I have made, is satisfied with it. I have laid it aside to be witnessed, as I did with this same will, or with others, in 1847. And I intend to have this done at some convenient season, provided my mind does not undergo another change upon the subject”.
The Public Administrator of New York vs. Watts & Leroy; and the same vs. C. L. Norton, (1 Paige, 347,) is another leading case, in this country, where this whole doctrine is thoroughly reviewed. The testimony is too voluminous to cite the [638]*638facts. Suffice it to say, that the Chancellor fully sustains the principles which we have laid down, namely: that this testamentary paper, showing from an inspection of it, that some •other act or formality was supposed necessary by the testator, •and was intended to be done by him before the same was to operate as a will; and there being no sufficient extraneous proof to counteract this presumption, it is an unfinished or unexecuted will, and is not valid for any puipose, unless the testator was arrested by death, before he had reasonable time to complete his will in the manner intended.
[12.] Here the caveators, being the next of kin, together with others of the deceased, and as such entitled to the distribution of the estate, if the will fails, the onus probandi is on the propounders. They must make out a case by satisfactory proof, to prevent the distribution according to Law, of the decedent’s estate.
[13.] What disposition, then, shall be made of this case ? The 57th section of the Judiciary Act of 1799, (Marburg Crawford’s Digest, 308,) provides, “ that in any case which has arisen since the signing of the Constitution of 1798, or which may thereafter arise, of a verdict of a Special Jury being given contrary to evidence, and the principles of justice and equity, it shall and may be lawful for the presiding Judge to grant a new trial before another Special Jury, in the manner therein prescribed”.
[14.] The 3d section of this late Statute, gives to the Judges the power to exercise a sound discretion in granting new trials, only where the verdict may be decidedly and strongly against the weight of evidence; whereas, under the old Law, the right exists wherever the verdict is contrary to evidence and the principles of justice and equity.
[15.] Under either of these enactments, both of which, I apprehend, are of force, there could be no difficulty in directing a new trial in this case; but we are not driven to take this broad ground, however justifiable we might be in so doing, under all the facts and circumstances of this case. We propose to put our judgment upon the most restricted view ever held [639]*639by this or any other Court, and to say, that if there was any evidence, however slight, to rebut the presumption arising from, the face of this paper, we would not disturb the finding. But-we affirm, after the most searching scrutiny by counsel, and. careful examination by the Court, we do not find in the record, one scintilla of proof, to rebut the legal presumption against-the will, arising from the incomplete clause of attestation.
The testator seems to have signed and sealed this paper, as-he did several others, so as to leave as little to do as possible— postponing the completion from some cause, and thus dying, without having executed it. This is just the condition in which, he left the wills of Eeb. 1847 ; and just the condition in which he-left that one of these three which he altered in the summer of' 1850, up to the time of his death.
With these convictions upon our minds, and in the utter absence of all testimony, that Mr. Pace had a divided mind, as to-his estate, supposing that he left the paper perfect as to the personalty, but incomplete and void as to the realty, we feel bound to remand this cause for a re-hearing.