SEPTEMBER, 17, 1771.

#### Jeremiah Belt, Junior, and Tobias Belt *against*Humphry Belt and others.

THIS was an appeal from the Prerogative Court from, the decree of the Commissary General.

It appears from the libel and proceedings in the Prerogative Court, that Col. *Jeremiah*Belt, on the 15th of *Oc*tober, 1750, made a writing purporting to be his last will, whereby he bequeathed the greatest part of his real and personal estate to his then wife, and after her death to *Jeremiah*and *Tobias*Belt, and *Joseph Sprig*Belt. That after executing the said writing, his wife and the said *Joseph S. Belt*died in the life-time of the said Col. *Jeremiah*Belt. That after their deaths in the year 1760, Col. J. *Belt*intermarried with *Mary*Brooks, his second wife. That on the 18th *January,*1769, a second paper, purporting *to*be a latter will of the said Col. *Belt.,*dated the day of , 1765, was exhibited into the Prerogative Court by she appellees, praying that it might be received.. &c. and the letters testamentary which had been granted under the former will, be vacated. That the paper purporting to be the will executed in 1765, declared the former will to be null and void, and was not signed by the testator, or witnessed by any persons, but drawn wholly in the hand-writing of the testator, the seal was affixed *to it,*but it was not signed otherwise than by the testator having written his name in the body of the paper. The day and month were left blank.

It appeared also, that there was another paper, purporting to be the will of Col. *J. Belt,*but the name of the testator was not signed in any part of it. It was in a great *410measure similar to the will of 1765. The preamble and introduction contained in the other wills was not contained in this. It also had marginal memorandums, which were inserted in the will of 1765.

The libel' was filed to set aside the will of 1750, and establish that of 1765, so far as related to the personal estate of the testator.

*W.*Dulany, Commissary General, on the 9th of *January,*1771, by his sentence and decree, did pronounce, decree, and declare, that the said *J. Bell,*the testator, whilst living, being of sound and disposing mind, memory and understanding, rightly and duly made his last will and testament in writing, exhibited and pleaded in this cause, (so far as relates to his personal estate,) bearing date the day of , *Anno*Dom. 1765, and thereof named and appointed his wife *M. B.*and a certain *J. B.*and *H.B.*executors, and did will, give and bequeath and do, in all things as therein is contained; and did pronounce, &c. for the force and validity of the said last will and testament of the said *Jeremiah Belt,*to all intents and purposes in law, so far as the same relates to the personal estate of the said deceased, and did approve of and receive the same by this his definitive sentence or final decree, which he read and promulged by these writings. And did further pronounce, fee. that a former will made by the said *J. B.*bearing date the 15th of *October,*1750, whereof his then wife *M. B.*and the said *J. B.*were named and appointed executors, and on which the said *J. B.*as surviving executor, had obtained letters testamentary, be and the same was thereby made null, void, and invalid, to all intents and purposes, and to have no force or validity in law whatsoever, as far as the same relates to the personal estate of the said deceased. And that the letters testamentary granted to the said *J. B.*©n the will aforesaid, be, and the same were thereby revoked, repealed, and made null and void. And did further order and decree, that letters testamentary of all and singular, &c. of the said *J. B,*be granted and committed *411agreeable to the said *J. B.’s*last will and testament, bearing date as aforesaid, on the day of , 1765, &c.

An appeal was prayed, and the Governor, on the application of the appellants, did, on the 28th of February, 1771, appoint *Benedict*Calvert, *John*Ridout, *George*Stewart, *Daniel of St. Thomas*Jenifer, and *Philip Thomas Lee,*Esquires, or any three of them, whereof *B. Calvert,*or *J. Ridout*was to be one, to be commissioners or delegates to view, inspect, examine and correct the said sentence or decree of the Commissary General, &c. Which said commissioners met on the 1st *March,*1771, and were duly qualified, &c. and continued to sit by adjournment until the 17th of *September,*1771, during which time the cause was argued by *Hall*and *S. Chase*on the part of the appellants, and *Jenings*and *Tilghman*on the part of theappellees.

Jenings, for the appellees»

The libel is to set aside a writing .purporting to be a will of the real and personal estate of Colonel *Jeremiah Belt,*made the 16th of *October,*and to establish a will made by him in 1765, so far as relates to the personal estate of the testator. In regard to the real estate it is to be observed, that it is not the subject of the contest, but which of these two wills shall be established as to the personal estate only.

In the construction of wills, the greatest regard has been always paid to the intent of the testator, and wherever his meaning could be collected from the face of the will, it has always been supported, unless the carrying it into execution would be productive of injury to society in general, as by introducing perpetuities and the like, in which case the interest of individuals must be sacrificed to the good of the community.

Our connections here end with life, but a regard for those of the same blood and family is strongly impressed by nature, and it is a real satisfaction for us to he assured, *412that our directions will be observed in the dispositions of our estaos . jt stimulates to industry, and cheers us in our departure. Wherefore Lord *Hardwicke*used justly to say, that the intent of the testator was the pole star in construing a will. From this consideration, wherever a man makes two wills the last shall be effectual, as being more plainly indicative of his intent than a prior one, for by his making another he shews an alteration of his opinion. 5 *■Bac.*524. *Co. Litt.*168. *Swinb.*pi. 1. p. *S. Bro. Testa*ment, 20. *Co. Litt.*112. b.

Here there are two writings, the one in 1750, the other in 1765. This must therefore be looked on as the *testatis mentis*of the testator^ and will be established, unless, as has been observed, there should be some *positive*institution to hinder its operation as a will.

By the common law, on account of the feudal system introduced in England, lands were not devisable, but goods and chattels were, by word of mouth. By the statute of wills, (32 H.-VIII. c. 8.) persons were enabled to make wills in writing.

By the statute of frauds, witnesses are directed to a will, and a particular kind of execution is pointed out; which is the reason that this will in 1765 cannot operate so as to convey the lands mentioned in it, and therefore comes within the distinction mentioned, it being a positive institution of the Legislatui’e which must be observed; therefore, though the testator has declared his intent how his lands shall pass, as well as his personal estase, and as every Court would support this intention as far as they could, the lands would likewise pass had it not been for this statute, which, for the sake of public convenience, will frustrate his intent as to the real estate, but it not operating as to the personal estate, there is nothing to prevent us from carrying the intent into execution.

I have said, that as to the lands the statute of frauds prevents the operation; but that it will operate as to the personal estate, is clear from the following authorities: 2 *Sira.-*764. *Gilb. Eq.- Rep.*260.- 3 *Lev.*1. 5 *Bac.*518. *413Cites *Swinb.*pi. 4. s. 28. and pi. 7, s. 13. 3 *Atk.*163s *5 Bac.*529, 530. in point. *Vin.*Devise, 154. 120. *Carth.*514. 2 *Stra.*1255. 2 *Burr.*423.

Further, there is an express revocation in the will, which operates so as to revoke all former wills. But were there no express revocation, yet the circumstances of the testa» tor’s family being different at present from what they were at the making of the will, this will in many instances be an. implied revocation, so tender is the law of providing for the relations of the deceased. 5 *Bac.*534. 1 *Eq. Abr.*413» 1 *P. W.*304. 2 *Salk.*592. 12 *Mod.,*236. 5 *Bac.*535. 2 *Show.*242.

This latter point of a revocation by implication is not mentioned as a sole reason for the Court to set aside the former will on account of such family alteration, because we have a latter will, which of itself is a revocation, as appears from the cases cited $ but there is also an ex» press clause of revocation in it, but this is only mentioned as an additional circumstance, and to shew, that viewing the matter in any light, either by the rules of express or implied revocation, the first will as to the personal estate ought to be revoked, and the latter will of 1765 estaWished,

The first objection made is, that there are different writings, and the testator having declared *verbally*the intended disposition of his estate, this parol declaration shall be considered as explanatory of the first testament.

As to admitting parol testimony to contradict a will, it is a doctrine which must be productive of so much perjury and fraud that the Courts have always discountenanced it; for should this kind of testimony be admitted, it would promote endless litigation, and create the utmost uncertainty, for no person’s written testament would be regarded, but a will would be set up for him from casual expressions, contradictory to a deliberare will; expressions which may artfully he drawn from him in his moments of convivial mirth, or when perhaps he may be soured by some particular instances of misbehaviour in his children *414or relations, which may occasion him to give vent to peevish declarations, repugnant to the interest of those for whom, in his cooler moments, be may have the greatest anxiety to provide. Under these circumstances, an artful person, who is on the watch, may draw from him expressions concerning the distribution of his effects in his own favour, and then set them up against a solemn act executed.

Besides, it is impossible that a man’s intent can be known from such parol declarations. He may declare his will to be very different from what it is, to prevent importunity from those who expect to be benefited by his death, though he knew he had made a will; this and a train of other ill consequences, which may be easily foreseen, to say nothing of the danger of procuring witnesses, which the depravity of mankind, in support of their own interest, give us too much room to suspect, induced the Courts never to admit this kind of testimony.

The second objection is, the will lodged in the office.

This will was nothing but a sketch or draught of the one he intended to make ; it is not *signed;*it has no preamble or introductory part, and from the many marginal notes and interlineations, it can be considered in no other light; and when we have a regular will, with every requisite necessary to pass the personal estate, it would be absurd to admit the blotted paper. 5 Bac. 518.

From a view of the two wills, there can be no doubt but the last was a preparatory memorandum, from which that in 1765 was copied, the bequests being in a great measure the same, only expressed more fully in the latter. Many of the marginal memorandums are inserted in the last will, which shews it was posterior.

In the second bequest to *Jeremiah*Belt, it is observable, that one of the tracts devised is called *Belt’s Pig*Pen, and in the will lodged in the office, it says with the resurvey, Stc. but in our will, it specifies more fully the particular *415vacancies, and that the whole is now called *Belt's Pig Pen enlarged.*This shews that the patent being granted since writing the will, and being so called in the last will, he mentions the name, for had it been otherwise, he would have called it by this name in the first will.

In the will of 1765 the preamble is inserted ; it is copied fair, and a seal is affixed, so that the testator seems only to have wanted witnesses to have executed it; we ought therefore to let it operate as far as it can without them. Further, to establish the first will against the second, would deprive some of the legatees, whom he intended to benefit, of their legacies, and strip them of every farthing he has bequeathed them.

The case of *Mason*and Hyde, in Finer, operates for us. The testator had made a will, and devised all his estate; afterwards he makes some alterations in *that zvill*as to his *real estate.*Had it stood the devises under the former will would have fallen, and the testator would have died intestate as to them, which was the reason of the determination. Apply the same reasoning here, and on the same principles this will should be established, for several of the devisees under the first will dying in the life-time of the testator, their legacies are lapsed. Sir T. Raym. 334. Therefore, unless the subsequent will stands, the testator would die intestate as to them.

The latter was certainly the complete will of the testator as to the personal estate, it having every requisite to render it so, and the matter set up to destroy' it are parol declarations, for without *them*there is not the least pretence to avoid it. The Courts have been unanimous to prevent such testimony to contradict the words of a will, and it is only allowed to support a will and destroy a presumption. As where a man has two sons named John, and he leaves his land to his son *John*generally, without distinguishing him; here parol evidence shall be admitted to explain which son he meant, being in support of the words of the will, and not repugnant. So to rebut an equity, as where no legacy is given to an executor, it is ah *416implied bequest of the residuum, but it not being *express,*but only by implication, evidence may be given to de-> feat it.

In Conns of Law, such parol testimony is not even admitted to be read, Lst the juiy should pay regard to it, or it might leave an impression on men; not used to discriminate with precision ; but the Court of Chancery will not gd into disputes about the reading of it, as it is supposed the Chancellor will iuive legal discernment enough to reject it, knowing it to be improper. For instances where parol has been rejected, *vid. Treat. Eq.*126, 127. *5 Rep.*68. *Cheneifs*case. *Cases temp.*Talbot, 240. 2 *Stra.*1261, 2 *Venn*625. 2 *P. IF.*421. 3 *P. W.*354. 2 *Atk,*375, 574.

To get rid of these cases, they say that though a will shall not be expounded by parol declarations, yet they may be used to set up a former will.

This is a very extraordinary distinction, and when ex* amined, amounts to no more than this: that though parol declarations shall not alter *part*of a will, yet they shall m.bke a *new*one *; or*in other words, that though evidence shall not be admitted to prove a trifling interest, yet when the interest is very extensive, it cures the defect, so that illegal and weak evidence is to be admitted only where the matter is of consequence, but that weak and illegal evidence shall not be admitted, where the matter to be proved is of little importance. It has been said there is nothing in the law which is not consonant to reason, but it will puzzle a casuist to reconcile this to principles of reason. The rule of evidence in respect to trifling inter* ests has been held to be the reverse.

This by no means answers the principle of the detenni,nation in 2 *Pern,*625. and the books where it is said a man may, for family reasons, make declarations, different from what he intends by his will; that he may make a will in one manner, and declare that he has made it in .a different one. So a man may publicly make a will, and afterwards make another which he would not chuse his fa* mily should be acquainted with; should they suspect his con* *417duct, and inquire concerning the matter, he would naturally reier them to the first will, to prevent family animosities. Further, to support the doctrine contended for, will be entirely defeating the statute of frauds.

I have shewn that a second will absolutely destroys the first. That this second will, being a good one as to the personal estate, thereiore immediately destroyed the first, and made it a mere nonentity, as much as if it had been destroyed, or never existed. It was either a will or no will, and could not be *suspended.*3 *Aik. 798.*

If this will then was destroyed, they contend that parol declarations alone should make a new will, which is repugnant to die statute oi frauds. As this will was destroyed, it could only have effect by a republication, referring to it as to any other paper for certainty. The republication muse have all the ceremonies necessary to constitute an. original will. *Vid.*8 *Mod. 78. Fitz. 229. Plow. 344. 3 P. Wms.*1C6. Suppose a man had a schedule of goods, and declared he left them to *A.*it would be void; but if he reduced it to writing, and referred to the schedule, it would be good.

Another objection is, that it being void as to the lands, it cannot operate as to the personal estate.

This is a doctrine quite new, and amounts to this, that where a will cannot be effectual as to the whole, it shall be void, but I have always understood the rule to be the reverse. Suppose a person makes a will, and some of the bequests cannot take effect, will not the will be good as to those which are proper ? and yet the argument applies equally strong as to the intent of the testator, that if one clause could not operate, he did not intend the other should. The only rule for this is, that it shall be supposed the testator so *intended;*a very vague one indeed, and there is just as much reason to suppose the testator intended otherwise. Where is the line to be drawn, for on this principle, if a man makes a will, and leaves lands *to*the amount *418of 10,000/. yet if he leaves ten acres more, which devise cannot ia^e effecti the whole is to be void.

A manuscript case is relied on, to which I give no eredit. 1st. Because the authorities in the books, viz. *Carth.*514. 2 *Stra. 1255.*are expressly contrary, and it would be dangerous to overthrow solemn resolutions by loose notes. 2d. Because Lord *Mansfield*himself, in the cause of *Windham*v. Chetwynd, has declared a different doctrine, and acknowledges the case in *Carthew*to be law. *Vid.*2 *Burr.*428, 429.

*The Court of Delegates*doth order, determine, adjudge and decree, that the decree or sentence made by the Commissary General, be revoked, annulled, and for nothing held; and that the will of *Jeremiah Belt,*dated the 15th of October, 1750, in the proceedings aforesaid set forth, be hereby established, and made firm and valid, and that the same shall be so held and deemed, and that the letters testamentary granted to *J. B.*junior, surviving executor under said will, be confirmed and continued in full force, any thing in the said Commissary General’s decree or sentence, to the contrary in any wise notwithstanding *;*and further, it is adjudged and decreed, that the appellees pay all costs of this appeal, to the appellants, as also all costs arising in the Commissary’s Office, in the prosecution of the libel aforesaid, &c.

Note. The acts of Assembly under which the Prerogative Court, and the Court of Delegates exercised jurisdiction, have been repealed. ■