By the Court.
Lumpkin, J.
delivering the opinion.
A verdict having been found, setting up the will propounded for probate in this case, a rule nisi was moved at the same Term, calling upon the successful party to show cause, so soon as counsel could be heard, why a new trial should not be granted, According to the practice of the Court, the argument would have been heard, and the decision made at the next ensuing Term. In order to expedite the cause, however, it was agreed that the application should be referred to the Court, without argument, and the judgment was to be sent to the Clerk within twenty days, to be entered as of the December Term, when the motion was made, More than [499]*499twenty days elapsed before the decision of the Judge, ordering a new trial, was received. This decision is excepted to,, because it was not rendered within the time specified in the-agreement.
We have no hesitation in holding, that the judgment cannot fail on that ground. Suppose the Judge had failed entirely to make up an opinion, the only effect would have been that the case would have stood over for a hearing at the next Term ; when according to usage, it was properly determinable. And that is the direction we should give this case, but for the request of counsel: — if that be the opinion of the Court, that this objection be considered as withdrawn.
Was the Court then so flagrantly wrong in granting a new" trial, that we are constrained to interfere and control his discretion ?
This case is reported at great length in 14th Geo. Rep. 596. Upon a thorough and careful examination of all the testimony, we were then of the opinion that the presumption of law against a testamentary paper, disposing of real and personal estate, with an attestation clause not subscribed by-witnesses, was not rebutted by the extrinsic evidence.
On the last trial, some additional proof was introduced. We must say, that it has not materially changed the aspect of the case, as before presented. Not one particle of it — indeed I might say with safety, not a particle of the evidence ever taken in this case, not even that of old Mrs. Pace herself, points necessarily to the particular will propounded, or to any other, except that the will propounded does show the interlineation as to Chaney. But a bare inspection of the paper will satisfy any one that this was not done when that instrument was written. It consists of the vague declarations of the testator respecting a disposition of his property by will, and we think a portion of that recently taken, makes against, rather than in favor of this will, and all taken together, to say nothing of the contradictory proof, fails to [500]*500supply the proper evidence, of final and complete execution.
I have said that the testimony of even old Mrs. Pace, fails to identify the will propounded for probate; she testifies that the will to which she refers was written in the summer of 1850. The will offered for probate, purports to have been written in February, 1847 ; she states that after he had written the will he read it over to her, to know if she was satisfied with it; her reply was, that as Laney was old, she would prefer her to stay with the children, rather than being sent to Alabama, and that immediately and according to her wish “ he put out Laney and inserted Chaney in her place, and then disposed of Laney otherwise in another part of the will.” (See answer of the witness to the 3d and 4 th direct interrogatory, and to the 1st cross interrogatory.)
In addition to the discrepancy in dates, one has only to inspect this paper to be satisfied that the addition at the end relative to Laney, was written at the same time with the body of the will, while the substitution of Chaney in the place of another name erased, was with a different ink and pen. And that is, not all, the same additional clause appears in another of the five wills found amongst the papers of the. testator, also purporting to have been written in February 1847, but which, from appearances, in my humble judgment, is the youngest in' the series. It is written on the same kind of paper, with the one propounded for probate, and the most correctly prepared of the whole.
If the will offered for probate, was written on the night to which Mrs. Pace swears, why, if his testamentary purpose was finished,this unattested attestation clause to this paper? This question never has been answered, either by proof or argument. I apprehend it never can be.
By reference to the five wills before the Court, this fact will be discovered, namely, that while the testator ever manifested the intention of having his will witnessed, yet he [501]*501was regardless of the location of the attestation clause. Take the will, for instance, which in my opinion, is the last of the five, at least, and the attestation clause “in the presence of us,” to the addition or codicil, is immediately over the name of the testator, on the right hand side of the paper. I refer to this, in answer to the suggestion that the addition to the will propounded relative to Laney, is written immediately under the attestation clause, and the inference is, that it was intended to crowd out the signature of the witnesses. Not only does the foregoing fact, to which I have adverted, rebut this presumption, but I remark further, more emphatically, that in deeds and wills, and all other instruments, when anything is altered or written in the body of the instrument, it is usually inserted immediately under the attestation clause, to show that the attention of the subscribing witnesses was called to it before signing.
. In commenting upon the testimony of old Mrs. Pace, in the former" decision, the question was asked, “ what fact or circumstance does she slate, from which it could be inferred that the paper propounded was any more the will or wish of her husband, as to the personalty, more than to the realty?” Np answer has been given to that inquiry.
Jacob Land swears that he heard Mr. Pace speak of his purpose relative to the disposition of his property, at his death; and he said that his business should be so arranged as that there should be no “ jangling” when he died; and that he intended all his land should be sold at his death; and this was spoken, say counsel, from his consciousness of the fact, that his will, not being attested, would not dispose of his land.. But why put it in his will ? What reason, I repeat, .is there for supposing that he intended to die intestate as to his land, and testate as to his personal property ? Was he not too sensible a man, designedly, to make an ineffectual disposition of either ? The fact, that the land is in the will, repels the idea that he intended to die intestate as to that; and shows that his mind was not fully made up, as to either [502]*502land or personalty. He knew that three witnesses to a will devising land, was necessary. As early as 1832, he wrote a will to land, which was attested by three witnesses. It is in proof, that he had acted as a magistrate for many years; that he was accustomed to draw deeds, bonds for titles, and other legal instruments; that he was a particular man in Ms business; that his attention had been directed to this very subject, (see Dent’s testimony.) But I forbear to extend these comments. From the number of wills found, and under all the circumstances, a jury should hesitate long in setting up this particular paper, entirely unsupported, as it is, by the proof of final testamentary disposition.
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By the Court.
Lumpkin, J.
delivering the opinion.
A verdict having been found, setting up the will propounded for probate in this case, a rule nisi was moved at the same Term, calling upon the successful party to show cause, so soon as counsel could be heard, why a new trial should not be granted, According to the practice of the Court, the argument would have been heard, and the decision made at the next ensuing Term. In order to expedite the cause, however, it was agreed that the application should be referred to the Court, without argument, and the judgment was to be sent to the Clerk within twenty days, to be entered as of the December Term, when the motion was made, More than [499]*499twenty days elapsed before the decision of the Judge, ordering a new trial, was received. This decision is excepted to,, because it was not rendered within the time specified in the-agreement.
We have no hesitation in holding, that the judgment cannot fail on that ground. Suppose the Judge had failed entirely to make up an opinion, the only effect would have been that the case would have stood over for a hearing at the next Term ; when according to usage, it was properly determinable. And that is the direction we should give this case, but for the request of counsel: — if that be the opinion of the Court, that this objection be considered as withdrawn.
Was the Court then so flagrantly wrong in granting a new" trial, that we are constrained to interfere and control his discretion ?
This case is reported at great length in 14th Geo. Rep. 596. Upon a thorough and careful examination of all the testimony, we were then of the opinion that the presumption of law against a testamentary paper, disposing of real and personal estate, with an attestation clause not subscribed by-witnesses, was not rebutted by the extrinsic evidence.
On the last trial, some additional proof was introduced. We must say, that it has not materially changed the aspect of the case, as before presented. Not one particle of it — indeed I might say with safety, not a particle of the evidence ever taken in this case, not even that of old Mrs. Pace herself, points necessarily to the particular will propounded, or to any other, except that the will propounded does show the interlineation as to Chaney. But a bare inspection of the paper will satisfy any one that this was not done when that instrument was written. It consists of the vague declarations of the testator respecting a disposition of his property by will, and we think a portion of that recently taken, makes against, rather than in favor of this will, and all taken together, to say nothing of the contradictory proof, fails to [500]*500supply the proper evidence, of final and complete execution.
I have said that the testimony of even old Mrs. Pace, fails to identify the will propounded for probate; she testifies that the will to which she refers was written in the summer of 1850. The will offered for probate, purports to have been written in February, 1847 ; she states that after he had written the will he read it over to her, to know if she was satisfied with it; her reply was, that as Laney was old, she would prefer her to stay with the children, rather than being sent to Alabama, and that immediately and according to her wish “ he put out Laney and inserted Chaney in her place, and then disposed of Laney otherwise in another part of the will.” (See answer of the witness to the 3d and 4 th direct interrogatory, and to the 1st cross interrogatory.)
In addition to the discrepancy in dates, one has only to inspect this paper to be satisfied that the addition at the end relative to Laney, was written at the same time with the body of the will, while the substitution of Chaney in the place of another name erased, was with a different ink and pen. And that is, not all, the same additional clause appears in another of the five wills found amongst the papers of the. testator, also purporting to have been written in February 1847, but which, from appearances, in my humble judgment, is the youngest in' the series. It is written on the same kind of paper, with the one propounded for probate, and the most correctly prepared of the whole.
If the will offered for probate, was written on the night to which Mrs. Pace swears, why, if his testamentary purpose was finished,this unattested attestation clause to this paper? This question never has been answered, either by proof or argument. I apprehend it never can be.
By reference to the five wills before the Court, this fact will be discovered, namely, that while the testator ever manifested the intention of having his will witnessed, yet he [501]*501was regardless of the location of the attestation clause. Take the will, for instance, which in my opinion, is the last of the five, at least, and the attestation clause “in the presence of us,” to the addition or codicil, is immediately over the name of the testator, on the right hand side of the paper. I refer to this, in answer to the suggestion that the addition to the will propounded relative to Laney, is written immediately under the attestation clause, and the inference is, that it was intended to crowd out the signature of the witnesses. Not only does the foregoing fact, to which I have adverted, rebut this presumption, but I remark further, more emphatically, that in deeds and wills, and all other instruments, when anything is altered or written in the body of the instrument, it is usually inserted immediately under the attestation clause, to show that the attention of the subscribing witnesses was called to it before signing.
. In commenting upon the testimony of old Mrs. Pace, in the former" decision, the question was asked, “ what fact or circumstance does she slate, from which it could be inferred that the paper propounded was any more the will or wish of her husband, as to the personalty, more than to the realty?” Np answer has been given to that inquiry.
Jacob Land swears that he heard Mr. Pace speak of his purpose relative to the disposition of his property, at his death; and he said that his business should be so arranged as that there should be no “ jangling” when he died; and that he intended all his land should be sold at his death; and this was spoken, say counsel, from his consciousness of the fact, that his will, not being attested, would not dispose of his land.. But why put it in his will ? What reason, I repeat, .is there for supposing that he intended to die intestate as to his land, and testate as to his personal property ? Was he not too sensible a man, designedly, to make an ineffectual disposition of either ? The fact, that the land is in the will, repels the idea that he intended to die intestate as to that; and shows that his mind was not fully made up, as to either [502]*502land or personalty. He knew that three witnesses to a will devising land, was necessary. As early as 1832, he wrote a will to land, which was attested by three witnesses. It is in proof, that he had acted as a magistrate for many years; that he was accustomed to draw deeds, bonds for titles, and other legal instruments; that he was a particular man in Ms business; that his attention had been directed to this very subject, (see Dent’s testimony.) But I forbear to extend these comments. From the number of wills found, and under all the circumstances, a jury should hesitate long in setting up this particular paper, entirely unsupported, as it is, by the proof of final testamentary disposition. It is just one of those cases, where, from the very nature of it, so much doubt and uncertainty exist, as to make it better to leave the estate to that equal division and distribution which the law-makes, and which in ninety-nine cases out of every hundred, perhaps, is a better will than made by the testator.
Upon a re-examination of the whole case, I am better satisfied, than ever, with the conclusion to which we came when this case was up before. The very fact that Mr. Paco made so many wills, while it. establishes, that Mr. Pace did not intend, to die intestate ; still it shows, conclusively, the unsettled state of his mind; and the truth of what he said to the witness, McCrary, the day before he died, that he was at adoss to know what disposition to make of his negroes, in order to do what was right and just.
But it is said that there have been two concurrent, verdicts of special juries; and that therefore, the finding in this case should not be disturbed. While this is literally true, yet it is not accurate for the purpose for which it is used. The Ordinary pronounced for the will. An appeal was taken to the Superior Court, and by the refusal -of the presiding judge to charge the law of the case correctly to the jury, a verdict was returned, of course, for the will. I say of course, for to their credit, be it spoken, that I discover, throughout the State, a [503]*503determination by the juries, to administer the law as given them in charge by the Courts. But the error of the Court was corrected and a new trial ordered ; upon which a verdict has been rendered in favor of the will.
No one doubts either the integrity or the intelligence of the jury. The names of the foreman and the other members are a guaranty for.both. But the facts of this case are so numerous, and the legal principle upon which it rests — namely : the difference between a paper sufficient in all its parts to pass property, and yet void for want of testamentary intention, that it should operate as it stood, without some further act to complete it — I repeat, this well settled doctrine, not being one of common occurrence, it is not' strange that a mistake or oversight should have been committed in the application of this rule to the evidence. The jury may have been misled, as counsel have been, by the rule of law regulating this case, as laid down by this Court, and that is, that while it is true that the presumption of law is against a testamentary paper with an attestation clause, not subscribed by witnesses, yet the presumption is slight, provided the instrument be perfect in all other respects.
The principle thus stated, is not the only obstacle to the. execution of the paper propounded as a will. Suppose this will had been duly attested, as was the will of 1832, it would be difficult, even then, to select this paper from the batch, and admit it upon the proof to record. So that the point which has been so elaborately discussed, is complicated with others of the gravest character. And it is only one out of the many reasons relied on to prevent this paper from , going to probate; and yet sufficient of itself, had there been but one will, and that found under circumstances as to cast no suspicion of its validity, to exclude it from probate, unless the presumption against it from defective execution was rebutted by aliunde proof.
We doubt not the jury themselves would prefer to have [504]*504the cause sent back for their reconsideration. We feel it our duty to do so at any rate, and leave it to the co-ordinate branch of the Judiciary to discharge theirs, as we doubt not they will
Judgment affirmed.