Sharp v. Sharp

The first question is, Whether the paper has been proved to be in the handwriting of the deceased by two competent witnesses? It is admitted, that there is one full and complete witness on this point; but it is said the other witnesses are incompetent, and if so that one witness is not enough. Waiving this last question, and saying nothing of the other witnesses, or of their competency, especially in a court of probat, I think, that according to (he *322opinions of all the judges in the case of Redford v. Peggy, Ewing and Brown are both competent witnesses to the handwriting. It is not pretended, that it is in the handwriting of any one else; nor was any one acquainted with his hand, examined on the other side, to throw any doubt on this subject. It is like his hand, all the witnesses say. It was found preserved in a pocket book in his tjureau, the day after his interment; and if placed there by himself, as we have every reason to believe, he would hardly preserve it as an ingenious specimen of the forgery of his own hand. The controversy seems not to have turned on this point; and hence the witnesses seem not to have been particularly examined as to their belief. The controversy seems to have turned mainly on the question, Whether this is a testamentary paper, or merely a memorandum to make a will by? On that point the witnesses were examined and cross examined, with great minuteness and care; not so as to the handwriting. Brown who administered on the estate of the deceased, and possessed himself of his books and papers, and thus became well acquainted with his hand, had no hesitation in believing the paper in question to be in his hand. Ewing had twice seen him write notes of hand. He was also one of those, who, after the funeral, searched his papers for a will. This examination of his papers gave him a further opportunity of seeing and becoming acquainted with the character of his hand. He believed the paper was in the testator’s handwriting. On the whole, I feel no hesitation in saying (especially as the court below which heard the testimony of the witnesses, which may have been more full than the minute taken of it by the clerk, was satisfied as to that matter) that the paper in question is in the handwriting of the deceased.

The next and principal question is, Whether this is a testamentary paper? A question, which, it seems to me, ought to be considered and decided, if that can be done, on the face of the paper itself. The object of the law in requiring wills to be in writing, and, where not wholly written by the testator, to be published by him in the presence of witnesses, .subscribing their names in his presence, and providing that a will so published and preserved, shall not be abrogated by parol proofs, is to prevent those perjuries, by which wills might either be set up, or revoked, contrary to the intention of the deceased.

*This paper is, certainly, very informal : but no one would say, that if this identical paper had been published in the presence of two witnesses according to the provisions of the statute, it would not be a good will. But our law has supposed, that a paper wholly written by a deceased person, subscribed by him, and bearing on its face evidence of a disposition of property in contemplation of death, especially where such disposition of property is made in such form as to shew, that he has completed all the dispositions intended to be made, and this is evidenced by making executors and signing the paper, has every guard thrown around it, which would be necessary to make it a will, if published in the presence of witnesses: that writing and signing such a paper (unless a suspended intention appear on its face, or that it is incomplete, by breaking off in its provision, want of signature &c. so as to shew, that it is only a disposition in part, and that something further was intended, whereby it would appear that the paper, in that form, was not intended as a will) is as much a publication of a will, as a publication in the presence of witnesses.

[Here the judge read the paper, and marked and described, with minute accuracy, all the peculiar circumstances appearing upon its face, as above detailed; and thence inferred, that it appeared on the face of the paper itself, that the testator had recurred to it frequently after it had been originally written, and made sundry alterations, amendments and additions, according to changes of circumstances or of inclination, and put his hand to it for the last time on the 12th Eebruary 1825. He also adverted to the length of time during which he had carefully preserved it, and the place and manner in which he had kept it.]

And then he proceeded: Let us suppose the case stopped here. Would or would not such a» paper, containing a full disposition of his whole estate, thus repeatedly revised and changed, at different times, according to the alteration of his circumstances (for it appears he 'had sold his slave, George after the first writing, and had also married) closing with a *provisiota for his wife, making his executors &c. be considered as a disposition of his whole estate to take effect after his death? And being written by himself, and carefully put away, must we not have considered it as a will? Unless, indeed, a will, when written by a testator, must be in more ample form than this, and bear on its face stronger evidence of a final testamentary intent.

It has been likened to the paper made mention of in the case of Matthews v. Warner, 4 Ves. 186. But that paper professed, on its face, to be “a plan of a will proposed to be drawn out,” and which, although it contained a disposition of his estate, that would have made it a wilt but for this internal evidence that it was a mere plan proposed to be drawn out, was not considered a will. That paper also contained these expressions, which were relied on to shew that the paper itself was not intended for a will: ‘’Must pray my burial may be plain” — “I must not forget my good friends Miss Mary and Miss Charlotte Howell, who desire will accept 5 guineas &c.” and, finally, it was indorsed) “a plan for the last will and testament of William Matthews &c.” It was moreover written on a piece of official paper (he was a storekeeper of the king’s dock-yard at Deptford) intersected with lines, containing (printed at the top) the different articles of which he had care; and was found loose in his desk in his office in the dock-yard with some official papers. In that case also, there was another paper, written four years afterwards, which began, “Binding myself in a very precarious state of health, the following is the plan I propose to draw *323will from, abrogating all the others I have already drawn outGoing on to make several bequests, but breaking off in the middle of one. This was written on the back of a letter, but was found in his bureau, in the parlour of his dwelling house, in a bundle of letters and papers. Many witnesses were examined as to the declarations of the deceased ; one set speaking of positive declarations, that he had made a will, and others as positively to declarations that he had not, and would not. The lord ^chancellor said: ‘Tt is always so, whether the evidence is to rebut a resulting trust, or to explain a will, bne never fails to see, that the witnesses come with the parts'. ” This part of the evidence, he says, he lays out of the case, as in perfect contradiction. He went upon the face of the paper; the place where it was found ; the other paper &c. but, above all, on the evidence of the paper itself. He said, “It is not, it cannot be denied (the argument presses so strong) that upon the perusal of this paper the natural conclusion is, that it was his intention to make a more formal paper than this. The inference cannot possibly be avoided. Then, ex hypothesi, this paper, at the time he subscribed it, was not the law, the testament. When then, at -what period, did the voluntas tes-tandi exist quoad this instrument? If it is admitted as it must be, that when he subscribed his name, he was looking to some future act, the decision that this is his will would destroy the most general maxim I know of, voluntas testatoris ambulatoria est usque ad mortem. No man can answer the question at what time that intention existed in his mind. I know there was a period when a contrary intention existed. He has given that evidence under his own hand by the paper of 1789.” That paper, though at first admitted to probat as a will, was finally decided against by the court of commissioners. 5 Ves. 23.

But, in our case, there is nothing in the writing itself, that is, there are no expressions tending to shew, that this paper was a mere plan or memorandum to draw a will by. We must infer this fact, if we so decide, from the shape and size of the paper, and the form in which it is written. Trying this case upon the paper itself, and supposing the deceased to be unlearned as to the form of wills, but to know, that if written by his own hand, and in a way to be understood, it would be a will, though not attested by witnesses, can we say, that a paper, containing on its face evidence of repeated revision, amendments and additions, and carefully put away in his pocket books, is not to be considered testamentary?

*Catherine Lloyd’s will, mentioned in a note, 4 Ves. 200, was, in fact, a letter written by an old lady to James Browning esq. in which, among other things, she says, “But in case of my demise I desire you will draw up and leave some blanks for some small legacies, that after my funeral charges are defrayed &c. then except some legacies, I give and bequeath to J. B. my lands and tenements &c. If my assets will afford it to pay in the burrow of Southwark —~— ¿; and to Miss J. P. ^30.” &c. [going on with several bequests] : but please not put this rigmaroll in, til I send it correct. This only by way of memorandum in case I should go off suddenly.” She lived three or four months after this. The prerogative court pronounced against this paper as being conditional, in case she died suddenly, whereas she had time to make a formal will: and parol evidence was admitted. But the court of delegates reversed the sentence, and pronounced the paper as the last will.

So in the next case, James Savage’s will, in the same note; the objection to which was that it was written by the testator, disposing both of real and personal estate, and concluded with a clause of attestation, but there were no subscribing witnesses. It was considered imperfect by Dr. Calvert, on account of the clause of attestation not being witnessed ; and he admitted parol evidence, on which he set aside the paper. The delegates were of opinion that, it being a will both of real and personal estate, it was, reddendo singula singulis, a good disposition of personals, and they rejected parol testimony against it.

Roberts, in his treatise op Wils, ch. 1, part 17, p. 198,* cites a case to this effect: a will had been fully drawn out and approved, and the attorney had directions to make a fair copy, and to bring it the next morning to be executed: but the testatrix died that night. It was held as conclusive of her having made up her mind, and was admitted as a will of personals.

*It seems to me to result from all the cases, when we are deciding on a paper, whether on its face it is testamentary or not, that it is the mind, not the words, the intention, not the manner, which is to be looked to; unless, indeed, the words or manner shew a suspended mind and intention.

The substance of the doctrine as laid down in Coles v. Trecothick, 9 Ves. 249, seems to be, that to begin a will thus: "I, A. B. do make this my will,” if attested by three witnesses, makes it a good will of lands, though there is no signature at the end of it. This publication, and the name thus written, seems, then, to be considered a good signing; but, I believe, that is not held to be enough here, inasmuch as without a signature to an olograph will of lands, there would be no sufficient evidence of a concluded and findal act. But it is there said, “The observation is just, that, as to personal estate, if it appears, upon the will, that something more is intended to be done, and the party was not arrested by sickness or death, that (viz. beginning the will as above) is not held a signing the will; which purports that there is to be a further act.” The paper before us, was signed and sealed when first written: it after-wards, received some alterations when it was dated, and again signed; and, finally, it underwent farther alterations, in which provision was made for the testator’s wife, his executors were changed, and it was again dated and signed. Taking it on its face then, how can we say, that any further act was intended unless the want of *324form shall be a ground on which we shall infer such intention? And I again ask, if the parol evidence as to intention, had never existed, or had been rejected, and was not in the record, could we infer, from this paper, an intention to write a will more at large, and so reject it? The paper disposes of his whole estate, names his executors, provides for his funeral and tumbstone. There is nothing doubtful about it.

It was said, he intended the land and slaves were to be entailed; and hence it is inferred, that if he had known he could not do this, he might have made other provisions. *This is very true: but, surely, such ignorance is not sufficient to set aside a will otherwise good. The words, “my land to be entailed,” are said to be words of direction toa scrivener; but they were to be entailed, not to him and the heirs of his body, but to him and his heirs forever. Whether he had any definite notions of the distinction between estates tail or in fee, it is hard to determine. These words, perhaps, would carry a fee, even if it had been lawful to create an estate tail. But he may have thought that he was giving the property in tail; and if from the circumstances apparent on the face of this paper, and independent of this clause, we are bound to consider him as writing a testamentary paper, surely, the form of words by which he creates an estate tail, is not, in itself, enough to found a belief, that he was merely writing directions. We often feel ourselves bound to construe a will as giving an estate tail, when we believe no such thing was intended; but we do not therefore say, that if the testator had been well advised, he would not have made such.a will, but would have inserted other provisions, and that therefore such a paper is not “the law and the testament,” and something .further was intended.

If, however, there be a well founded doubt, arising from the face of this writing, whether it was intended as a testamentary paper or not, then, it is said, parol evidence may be admitted against it. How stands the case upon the parol evidence? [Here the judge stated and examined the whole of the parol evidence very fully and minutely.] He concluded: The weight of the evidence, I think, goes clearly to prove, that the testator considered he had a will, by which his estate would pass after his death, and the bulk of it to Alexander Sharp, according to his uniform intentions in his favour, always expressed to those to whom he made known his wishes. He may have wished to draw it, or have it drawn, in better form: but he clearly intended this, paper to be his will if he should die without altering it. If a will is once made, no expression of an intention to have it drawn in some proper form, or even to alter it, if the testator does *not do so, but, on the contrary, says he has a will, which is found carefully put away, clear of all suspicion of fraud or management, can have the effect of setting the will aside. The evidence, in this case, so far from proving an intestacy, I think, supports the paper before us as a will.

I concur in the opinion that the paper in question is sufficiently proved to have been wholly written byThomas Sharp. But I cannot agree that he intended it to be his will.

A paper is not to be established as a man’s will, merely by proving, that he intended to make a disposition of his property similar to, or even identically the same with, that contained in the paper. It must satisfactorily appear, that he intended the very paper to be his will. Unless it appear, that the very paper was intended to be his will, it must be rejected; however correct it may be in its form, however comprehensive in its details, however conformable to the otherwise declared intentions of the pa rty, and although it may have been signed by him with all due solemnity. In the case of Matthews v. Warner, the paper offered as a will, began thus: 1 ‘2 Nov. 1785. A plan of a will proposed to be drawn out at the last testament of William Matthews, storekeeper of his. majesty’s yard at Deptford.” After the usual preludes, being in health, sound in mind &c. it proceeded; “Imprimis. I give unto Miss Isabella Johnson, &c. ” and then proceeded with several other specific legacies; and after disposing of the residue of his estate, concluded thus: “I appoint my good friend Mr. Edw. L’Epine and my good friend Mr. Edw. Johnson, my executors, to see this my last will and testament complied with. Dated *at Deptford, 2d Oct. 1785;” and was signed “Wm. Matthews.” There then followed a codicil; “I must not forget my good friends Miss Mary and Miss Charlotte Howell, who desire will accept of five guineas each, for rings to wear in remembrance of me. 6 Oct. 1785. Wm. Matthews.” It was indorsed, “A plan designed for the last will and testament of Wm. Matthews, storekeeper of his majesty’s yard, Deptford.” Lord Eldon held this not to be a will, because it appeared, as he conceived, from the expressions in the beginning of the paper, and in the indorsement upon it, “A plan &c.” that Matthews did not intend that paper to be his will, but onljT the plan, according to which, a will was to be afterwards drawn out. And I understand it to be now definitively settled in England, that even where a paper purports to be a will, and is signed in such manner as would be sufficient to give it effect as a will, yet if it appears on the face of the paper, that something more was intended to be done, and the party was not arrested by sickness or death, it shall not be a will. Roberts on Wills, ch. 1, part 17, p. 198-202. Roberts, in summing up the law upon the subject, says, ‘ ‘The later determinations at Doctor’s commons, seem tending to establish a more discriminative doctrine,” than that which formerly prevailed. “It.now appears tobe 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 *325further 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 finish may ground a presumption of a change of mind in the deceased.” After reciting some -cases in confirmation of this principle, he says, “The same doctrine is recognized by lord Eldon, in the late case of Coles v. Tricothick, 9 Ves. 249, who thus expresses -himself on this 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.’ It seems therefore to be now understood that not every scrap of paper which a man ■writes in contemplation of death, making ■mention of intended dispositions of his personal property, will be received in the ecclesiastical courts as testamentary.”

Ret us apply these principles to the paper before us. The whole of the first side of it, (judging from the colour of the ink, the stroke of the pen, and the character of the handwriting) was written at the same tame, except the words “my extors.” &c. and perhaps the date, and some fee alterations. This side of the paper constitutes the body of the will, if will it may be called. But what is it? It bears on its face, intrinsic and (to my mind) irresistible evidence, that this paper was not, when it was written, intended to be his will. It is not, in the beginning, end, or any other part of it, recognized or spoken of by the writer, as a will, or even as the memorandum for a will. There is not a word in it, from which it can even be inferred to be a memorandum for a will, except the part where mention is made of funeral charges, a tombstone, and executors. There is not from the beginning to the end, one word commonly used in giving or disposing of property, by deed or will. Did ever man, however ignorant, sit down to write a will, and finish the work in this form, and upon such a mutilated piece of paper! And it is evident, that Sharp, although of secluded habits, is no where represented as an ignorant man. On the contrary, he is said to have done all his own writing, and to have kept his accounts very accurately. It is clear to my mind that this paper was, on its face, no more than a mere memorandum of the manner in which he intended to give his property, by a will thereafter to be made.

This result, deduced from the intrinsic evidence of the paper itself, is fortified by the positive testimony of witnesses. [Here the judge recapitulated the testimony of three of the witnesses, which, he said, left no doubt with him, that Sharp did not consider or intend this paper to be his will.]

*'That part of the paper, relating to his wife, dated February 12, 182S, does not mend the matter. There are no words of disposition there, giving the lands to his wife; there is no recognition of the paper as his will. It is itself, a mere memorandum, and cannot change the character of what had been previously written on the other side, which was also nothing more than a memorandum. It was no will and not intended to be so when it was written.

I do not deny, that this paper, originally written as a mere memorandum for a will, might have become his will, provided he had afterwards published it as such. But this he never did.

It is said, however, that he afterwards considered it as his will. I do not believe that that, even if it were clearly proved, would make it his will. But there is no satisfactory proof, that he ever afterwards considered or wished this paper to be his will. The evidence, on this point, is very contradictory, and preponderates, in my opinion, against the proposition: at any rate, the declarations ascribed to him by the several witnesses, are so contradictory in themselves, and so inconsistent with the provisions of the paper now brought forward as his will, that they can give it no support whatever; even if a paper purporting, on its face, not to be a will, but a mere memorandum for a will, could, in any case, become a will, by general declarations of the testator, that he had made a will containing dispositions similar to those indicated in the memorandum. But I do not think, that such a paper ever could become a will, without proof of a subsequent publication thereof as such. The evidence of such publication, is not to be found in this record.

If Sharp intended this paper to be his will, it is very strange that, conversing with so many persons, and with such un-reservedness, on the intended disposition of his property, he should never have shewn it to any of them; particularly, when we recollect, that the most, if not all of these conversations, took place at his own house, where the paper was kept. It is passing strange, even if he intended to make *the very disposition of his property, indicated by this writing, that he should have been satisfied to make it on such a small, torn, defaced, mutilated fragment of paper. If it had been written when he was in extremis, and in a situation where a more suitable piece of paper could not be had, this remark would be entitled to no consideration: but this writing was commenced at least nine years before his death, and was revised by him about one year before his death. Under these circumstances, I repeat, that it is passing strange, if he intended it, on the 12th Feb. 1825, to be his will, that he did not, at some period between that and his death, transfer it to a different paper. A man who wrote with the facility with which he appears to have done, might have copied it, at any time, in less than ten minutes.

But, it is said, this paper was preserved with care, and was found, after his death, in the place where it was reasonable to expect he would deposit his will. I answer, that, if it were intended as a mere memorandum for a will, to be afterwards made, it would have been preserved with care, and would have been found, probably, in the same place.

No man could be more disposed than I *326am, to construe, with liberality, the wills which men have actually made. But wills must be made, before they can be construed. Every man, having1 property, must feel an interest that his property should pass, after his death, to the persons whom he would wish to have it. If he fails to make a will, having time and opportunity to do so, it must be presumed that he wishes those to have it, whom the law may designate as his heirs or distributees. I fear this reasonable intent would be 'frequently disappointed, if we decide, that “such a thing as this” (I use lord Eldon’s language in a like case) is to be established as a will. I think the sentence of the circuit court ought to be affirmed.

But by a majority of the court, the sentence was reversed &c.