Cogbill V. Cogbill and others. MAY, 1808. a necessary condition upon which the execution of the former was to turn. They were entirely independent and distinct transactions, and related to separate and distinct interests. This wish of the testator to sign both papers at the same time, well accounts, however, for the delay in signing the draughted will, up to the time of his death; and thus, in aid of the other abundant testimony in the cause, powerfully repels the presumption of a change of intention, generally inferable from a long delay in signing a will after it has been prepared. With respect to wills, perseverance, rather than mutation of intention, is the general principle: a long delay of signature, however, is, in general, a circumstance from which to argue a change of intention: but, when that delay is well accounted for, (as in this case,) the general principle remains unshaken, and, in making a construction, will have its effect. (a) 2 Bl. Com. 501. I will now have a more particular reference to a few authorities touching the question before us. the This paper, or codicil, as relative to the disposal of lands, is justly abandoned by the counsel for the appellants. A will of lands is different from a will of personal estate: it must be executed according to the directions of the statute, being considered as a statutory mode of conveyance.(a) With respect to a will of lands, therefore, the identity of paper, with reference to its actual execution as a will, is important, and the very paper exhibited as the will of the testator must have been executed by him, as and for his last will and testament. Even in this case, however, it is not essential that the paper established should be the identical one intended for his last will; nothing being more clear than that a will of lands duly executed remains in force until revoked by another will also duly executed: an approbation of, and intention to execute another will, is not sufficient. A testament of personal goods, however, is said to stand upon a different foundation. A testament is defined to be, "the legal declaration of a party's intentions, which he (b) Ib. 499. "wills to be performed after his death."(b) In ascertain Cogbill V. Cogbill and others. (a)See Cowp ing the "legality" of this declaration, we have reference to MAY, 1808. no statute, but to the principles of the civil law as recognized and adopted, touching this subject, in this country and in England.(a) In ascertaining what is the will of a testator touching his personal estate, we have recourse to no formula of any act or statute, but to the just and fair 90. Harwood construction of the document exhibited as containing it, V. Goodright. under all its concomitant circumstances, as far as they can legally and properly be given in evidence, and as regulated by well-established decisions upon the subject. The only desiderata on occasions of this sort, are, that the intention of the testator be settled and final, as far as it goes, and, (in order to avoid perjuries, and the misconceptions of wit-, nesses,) that that intention be declared by a writing made or adopted by the testator. This doctrine of our law finds a strong analogy in the policy adopted by the act of frauds in relation to other cases. Thus far, to prevent these mischiefs, the rule of decision ought to go; but there is no necessity to extend it any further. To extend the caution any further, while it is not required by any statute, would unnecessarily, (with reference to the reason of the rule,) operate as an abridgment of the right of disposition guarantied to every citizen. A case, (to be presently noticed,) on the grounds of decision in relation to notes for a will, contained under initial letters and unfinished words only, will exhibit an excellent commentary upon this distinction. The decisions upon this subject inform us, that a testament, though not signed by the testator, and although written by another person, if according to his directions and approved by him, is binding, and this although no witnesses are present at its publication.(b) As to the identity (b) 2 Bl. of the paper, with reference to the one intended to be the Com. 501. last executed, the numerous cases in which notes for wills have been established, shew that to be unimportant. Upon this point of identity, I conceive there is no difference between a devise of lands and a will of personal estate. V. Cogbill Cogbill and others. MAY, 1808. While, in both cases, it is necessary that the will submitted to the Court be executed, or adopted, as the case may be, according to the law as applying to the different instruments, (that is, that the former be signed, or executed, pursuant to the statute, while the latter need only be sanctioned as the will, and be evidenced by writing,) it is not necessary, in either case, that the will submitted was the last that was intended to be executed. In both cases, the will submitted is to prevail, unless a posterior will was not only contemplated, but actually executed, prout the different laws relating to the several subjects. In the case of a will of personalty, such a will remains in force, (under our statute,) until legally revoked by another will in writing, conforming in other respects to the law as established on the subject. The question is, therefore, not whether the will submitted for probate is the last will the testator intended to execute, but whether, being once sanctioned as a will, it has been nullified by any subsequent act 1 or testament. With respect to the draughted will, now lost, but which is proved to have been totidem verbis, with the codicil in question, that paper is proved also to have received the sanction of the testator. In sanctioning that paper, if precisely agreeing with this, the testator also sanctioned this paper, as and for his will and testament; and, e converso, the reception of this will equally sanction that, if it shall ever be produced, and were in fact, as it is described to have been, by the witnesses. The codicil now before us, standing by itself, is amply sufficient, and is no how impugned but by the testimony of witnesses: but that testimony must be taken altogether: and so taken, that will, as now understood, was no revocation of this codicil; but only a duplicate or republication of it. I shall presently have occasion to cite some authorities which establish this position beyond all controversy. But that will is not now before us, sitting as a Court of Probate; and however admis sible it may be to receive testimony respecting its con Cogbill V. Cogbill and others. tents, in order to fortify this will, by shewing that the dis- MAY, 1808. position purported by this will, continued to be that intended by the testator, even up to the time of his death, it is certainly irregular to resort to such testimony, (even if it were entirely different from what it is,) to overthrow the will before us; thereby invading the province of another forum, (the Chancery, to whom it belongs to set up that will as a lost will, and, in that proceeding, to estimate the credibility and weight of the testimony respecting its contents ;) and of this forum, (the Court of Probate,) if the will itself shall ever hereafter be produced. Referring, particularly, to the cases cited in the argu ment in which notes for wills have been established, and in which this objection respecting identity certainly existed, and did not prevail; I will briefly cite a few authorities on the subject. In 7 Bac. Abr. 338. it is held, that where A. being ill desired B. to make her will, who wrote down only names and initial letters to this effect, viz. "To Tho. West, 2001. to Fo. Dev. 100%. to Rob. Cro. 501." &c. which being more than her estate amounted to, B. made an alteration in the second column, by subtracting parts of the sums bequeathed, and then told A. the sense of the proposed devises, and A. was heard to declare that "all was well," thereby indicating her satisfaction therewith; B. went to a scrivener to have the devises drawn out at length, and in form, and, before he returned, the testatrix died; the Judge below pronounced in favour of this will; but, upon appeal to the delegates, the decision was reversed. It was reversed, however, only on the ground, that the bequests not being written at length, the will was not substantive in itself, but to take its sense from the interpretation of the witnesses; that it was, in effect, a nuncupative will, and, as such, not having the requisite number of witnesses, was void. The ground of this reversal proves the truth of the doctrine I contend for. If the imperfect notes for a wlll in this case had been written at length so as to obviate the objection of MAY, 1808. danger of perjury, and of mistakes arising from the misin terpretation of the witnesses, no objection on account of form, or of its not being the the identical paper intended to have been ultimately signed as the will, would have prevailed. Cogbill Cogbill and V. others. In the case of Habberfield v. Browning, cited in 4 Vesey, jun. 200. and also in Roberts on Frauds, p. 451. where a woman having considerable real and personal paoperty, wrote a very ignorant letter to her attorney, giving him an account how she would dispose of her estate, and added, "Please not to put this rigmaroll in till I send it correct; "this only by way of memorandum, in case I should go off "suddenly;" she lived three or four months after, but took no further steps relating thereto: the Court of Delegates reversed the sentence of Sir George Hay, rejecting this will, and established it. It was established, although it was objected that this was only a conditional paper, depends ing on the testatrix's " going off suddenly," and although a change of intention might be inferable, (and was not rebutted by counter-testimony,) from the lapse of time between the writing of the letter and the death of the writer. If not bound down by the established law on this subject, I might myself perhaps have boggled a little at these decisions: but I do not find that they have been overruled; and they certainly very far outgo the case at bar; not only in dispensing with form, but in admitting to probate as wills, writings far less final and perfect than the paper be fore us. I infer, therefore, incontestably, that there may be a "legal declaration of a person's intentions respecting what "he wills to be performed touching the disposition of his "goods after his death," notwithstanding the paper containing such declaration was neither written by himself, nor is the very paper he intended in future to execute or adopt as his will, and which he would probably have executed, had not a premature death prevented. All that is requisite is, (and, here, the maxim, "non jus esse in tabulis," seems |