Cogbill Cogbill and V. others. MAY, 1808. the same time, a separate writing, in which the name of John Cogbill no where appeared, (but which was wholly written by him,) was offered for probate, by Sally Nelson Cogbill, the principal legatee therein, as a codicil to the said will, and as sufficient to pass the personal estate. Probate of this writing was opposed by Hill Cogbill, Thomas Cogbill, and others, the heirs at law of the testator; but the Court of Chesterfield admitted it to record “as a codicil to "the last will and testament of John Cogbill, deceased." From this order an appeal was taken to the District Court of Richmond, where the judgment of the County Court was reversed. Sally Nelson Cogbill, who stood as the only party appellee in the District Court, being dead at the time of the decision, an appeal was taken in the name of Sally Cogbill, mother of Sally Nelson Cogbill, to this Court. During the progress of the trial in the District Court, Hill Cogbill, one of the appellants released in open Court all interest which he might have under the will of John Cogbill in the personal property mentioned in the writing produced in Court as a codicil to the will of the said John Cogbill; and with the consent of the other appellants, the appeal was dismissed as to him. He was thereupon sworn and examined as a witness in the cause; to which the counsel for the appellee objected. The minutes of the proceedings contained the dismission of the appeal as to Hill Cogbill; but the order-book, signed by the presiding Judge, omitted that circumstance. Hill Cogbill consequently appeared as a party appellee in the Court of Appeals. The case, abstracted from the collateral points which arose in it, was this: John Cogbill being seised and possessed of a very considerable real and personal estate, and having neither wife nor child, made his last will and testament in these words: "In the Name of GOD, Amen. I, JOHN COGBILL, Of "the parish of Dale and County of Chesterfield, being of "sound mind and memory, thanks to GOD for the same, "and being desirous of settling all my worldly affairs, and MAY, 1808. "disposing of the estate wherewith it hath pleased GOD to "bless me, do make, publish and ordain this my last will "and testament, in manner and form following; that is 66 ་་ to say, Imprimis, I give my soul to GOD, who bestowed it on me, and desire my body may be decently buried by my executors herein after named. "Item, I give, devise, and bequeath to my niece, Salley "Hill, daughter of my brother Jessee Cogbill, deceased, "her heirs and assigns for ever, the seven negro slaves "following, to wit, Nancey, Maria, Beckey, Stephen, Lucy, "Amey, and Patience, with the future increase of the fe"males. Also, two horses, one light grey, and one dark 66 grey, called Silvertail; six head of cattle; and one bed "and furniture. แ 66 Cogbill V. Cogbill and "Item, I give, devise, and bequeath unto my nephew "Thomas Nelson Cogbill, son of my brother Jessee Cog"bill, deceased, to him, his heirs, and assigns for ever, the plantation and lands whereon I now live in, said County of Chesterfield, containing five hundred and ninety-two acrès, more or less; also the following slaves, fourteen in num"ber, to wit, Frank, Tom, Dick, Effey, John, Sylla, Priscy, Edeth, Archer, Ludy, Lizzy, Ned, young Frank, "Kitt, and Sally, with the future increase of the females; " also, five horses, twenty-three head of cattle, ten sheep, "all my stock of hogs, all my household and kitchen "furniture and plantation utensils, (the bed given to Sal"ly Hill excepted, together with all my outstanding "debts, and all and every the remainder of my estate, "both real and personal, of every kind whatsoever. But "it is my will, and I desire it so to be, that my nephew, "Thomas Nelson Cogbill, shall pay and discharge all just "debts and accounts that shall remain due from my estate "after my decease, out of the legacies and estate herein "bequeathed him. "But, in case my niece Salley Hill, and my nephew "Thomas Nelson Cogbill, should die without issue of their others. Cogbill V. Cogbill and others. MAY, 1808. "bodies lawfully begotten, then and in that case, I give "the plantation and lands, herein bequeathed to my nephew Thomas Nelson Cogbill, to my nephew Jesse Cogbill, son of my brother George Cogbill, deceased, to him, "his heirs and assigns for ever. And all the remainder "of my estate, herein given to Sally Hill and Thomas "Nelson Cogbill, in case of the said Sally and Thomas "Nelson dying without lawful heirs, I give to be equally "divided between Jesse Cogbill and John Cogbill, sons of my brother George Cogbill, deceased, to them, their heirs "and assigns for ever. "Lastly. I do nominate and appoint Charles Graves, "Thomas Neslon Cogbill, and Armistead Hill, executors "of my last will and testament, hereby revoking all for66 mer wills by me made: and it is my desire that my estate t may not be appraised. "In witness whereof I have hereunto set my hand, af "fixed my seal, this 9th day of November, in the year of our LORD one thousand eight hundred and five. "JOHN COGBILL, 66 Signed, sealed and delivered "in presence of " [Here follow the names of six witnesses.] (L. S.) Thomas Nelson Cogbill, the nephew and principal devisee, having died in the life-time of John Cogbill, the testator, he communicated orally to his friend and neighbour James Ferguson, (who was a subscribing witness to the will, and seems to have been consulted on all his testamentary affairs,) those changes in the disposition of his property which he contemplated in consequence of that event. Ferguson "told him he had better put down his intèn"tions in writing." In the mean time, Ferguson took the following memorandum, in order to consult Mr. Gregory, (a neighbouring lawyer,) as to the legality of the proposed limitations: "I lend to Sally Cogbill, widow of my nephew T. N. Cog"bill, deceased, the plantation I now live on, containing 592 "acres of land, and the following slaves, 15 in number- Sally Cogbill and Thomas N. Cogbill, the whole of the "estate so lent to her mother, consisting of the 592 acres "of land; the 15 slaves above named; household and kit"chen furniture, stock, &c. "I give and bequeath unto my niece Sally Hill, daugh"ter of my brother, and her heirs for ever, seven negroes "following, to wit; two horses-the little grey I bought "of James Ferguson-a dark grey named Silvertail; all "outstanding debts except the amount of a deed of trust "from my brother Jesse Cogbill; the remainder of my "stock of cattle not before bequeathed, and one feather "bed and furniture. I also give to my said niece Sally 46 Hill, in case she has a living heir, one half the amount "of the said trust deed from my said brother-and the "other half I give and bequeath to my grand niece Sally "Nelson Cogbill, with this proviso, that if my said niece “Sally Hill shall die without leaving issue of her body lawfully begotten, then and in that case, I give and bequeath "the whole and full amount of said trust deed to my said "grand niece Sally Nelson Cogbill and her heirs for ever; "and in case of the death of my said grand niece without "lawful issue, then the mother to have the whole, &c. "It is my will and intention, that Armistead Hill shall "pay all my just debts out of the legacy bequeathed to his "wife. "Charles Graves, Sally Cogbill, and Armistead Hill, executors and executrix of this my will, &c. My estate not to be appraised." Indorsed, "Consult Mr. Gregory on this memorandum." MAY, 1808. V. Cogbill and others. MAY, 1808. Cogbill V. Cogbill and others. And further indorsed, obviously with different ink, but at what time does not appear, Prepare a release from John Cogbill to the heirs of Jesse Cogbill, for the amount of the within deed of trust; "and in the will to be written, omit the whole clause respecting said T. Deed. Ask Mr. Gregory in what 66 manner the said release ought to be made." In 1807, and after the writing of the above memorandum, John Cogbill delivered to Ferguson a paper, which is the subject of the present controversy, together with the original will of the 9th of November, 1805, and desired him to write a will by the two. The testator lived sevena or eight months afterwards. Ferguson" considered the pa per as a memorandum to form a will by; as intended to "form the foundation of a new will not as a codicil; the "testator having before requested him to write a new will "for him." The paper is in the following words: “I lend to Salley Cogbill, widow of Thomas N. Cogbill, "deceased, the plantation I now live on, containing five "hundred and ninety-two acres of land, and fourteen negroes named as followeth, Frank, Tom, Dick, Effee, fohn, Sylla, Presey, Edeth, Archer, Ludy, Lizzy, Ned, "Young Frank, and Kitt; also three horses, twelve head "of cattle, all my stock of sheep and hogs, also all my "household and kitchen furniture, and all my plantation “utensils as long as she remains Thomas N. Cogbill's "widow. I give and bequeath unto Salley N. Cogbill, daughter of Thomas N. Cogbill, deceased, and Salley her "Cogbill, the above estate lent to mother, the five hundred "and ninety-two acres of land, and fourteen negroes named Frank, Tom, Dick, Effee, John, Scylla, Presey, "Edeth, Archer, Ludy, Lizzy, Ned, young Frank, and "Kitt, with the future increase of the females; also three "horses, twelve head of cattle, ten sheep, all my stock of hogs, all my household and kitchen furniture and planta"tion utensils, [together with all my outstanding debts, |