#### MATTHEW SMITH vs. JOHN EASON, ADM'R.

In ascertaining whether an instrument was intended by the maker to operate as a *bond*or as a *will,*words which may not change the legal effect of the instrument, and may, therefore, be immaterial in construing- it, supposing its character to have been established, may be quite material in ascertaining its character, and though their alteration or erasure may be of no importance in the former point of view, yet they are quite material in the latter.

*35ÁoxioN of covenant, tried before- Manly, J., at the Fall Term, 1856, of "Wayne Superior Court.-

The action was brought upon' the following instrument of writing:

“ I, Henry Britt, Sen., do this day give my note to Matthew Smith, in the manner following, for my executor or *administrator*to pay to Matthew Smith, five thousand dollars, just for the good will I have for him, at my death, for him to have in fee simple forever, as *witness my hand cvnd*seal, this Eeb. 18, 1854. Henry Beitt, Sen., *[Seal^\*

Test — William T. Hines.”

The subscribing witness testified that the instrument was written by the plaintiff, after the dictation of the intestate; that it was read word for "word as it was dictated, and that it was read to him more than once. This witness also testified that the instrument was all written at the same time and with the same ink, and that it was, at the time of the trial below, in the same condition as it was when executed.

Witnesses were called on the part of the defendant, who stated that, with the assistance of a glass, they could perceive there was a part of the writing done with different ink, that is, the dotting of an “i” or the crossing.of a “t”; the word “administrator” was interlined, and the words “witness my hand and seal” were interlined also. These witnesses also stated that the word “ executor ” and the signature of the ob-ligor were in a different ink.

The defendant contended—

1st. That this instrument was a will, and could be of no legal effect until after probate and registration, and that this was a question of law. \

2nd. Supposing the instrument to have been executed, that it had been altered since its execution in the several particulars stated by the witnesses, and was, on that account, void.

The Court instructed the jury as to the first point, that it involved a question of fact, depending not only upon the phraseology of the instrument, but also upon the intention of the maker, as it might be gathered from the, testimony of the sub*36scribing witness and circumstances. And they were directed to enquire from the facts whether it was intended to operate between the parties, upon its delivery, as a clear irrevocable act — as a note or bond which the maker could not abrogate, or as a will; if the former, it was good; if the latter, it was not good, for the want of attestation, probate, &c. Eor this, the defendant’s counsel excepted.

With respect to the alterations alleged, the Court was of opinion that, by whomsoever or wheresoever made, they did not *per se*avoid the instrument; that the crossing of a “t” or dotting an *“*i,” putting in “ administator ” and “ witness my hand and seal,” were immaterial alterations, and did not change the legal effect of the instrument; but that, unexplained, they were matters of suspicion, and might be considered in connexion with objections to its original execution, or to its fairness in other respects ; that the law on this point had been diversely held, but that he believed this opinion in accordance with the weight of authority.

Defendant further excepted.

Yerdict and judgment for plaintiff, and appeal by defendant.

Moore, for plaintiff, (with whom were *Dortch*and Bryan,)

argued as follows:

1. The rule of law respecting the alteration of bonds as stated in Pigot’s case, is not followed any where. No text writer states it with the rigour of Lobd Coxe. See 2 Bl. Com. 308; Chit. Geni. Pr. 304. The rule is not followed in England. *Adams*v. Bateson, 19 E. C. L. Rep. 21; *Hudson*v. Bevett, 15 Ibid. 472; Best’s opinion; *Oollms*v. Prosser, 8 E. C. L. Rep. 183.

2. The opinion of the Court in *Pullen*v. Shorn, 3 Dev. 238, that an immaterial alteration made by the obligee will avoid the bond, is extrajudicial. — In *JSfwnnery*v. Gotten, 1 Hawks 222, the doctrine is pushed to an extreme. Even in this case, however, the Court ground their opinion, that the alteration *37was done 'with “ a fraudulent design,” per Tayloe, C. J. The Court assume that the act done is a “ serious offense,” that is, forgery. There can be no forgery unless the alteration is material. — The doctrine in Pigot’s case is disaffirmed in *Matthis Y-.*Matthis, 3 Dev. and ,Bat. 60 ; *Blackwell*v. Lane, 4 Dev. and Bat. 113. In neither of those cases is any notice taken of *Pullen*v. *8haw*or *Bwnnery*v. Gotten.' It is submitted that this silence is significant of dissatisfaction with the broad doctrine laid down in them; especially when we observe the Court citing in *Matthis*v. Matthis, Chit. Gen. Pr. 304.

■ 3. There is no question, perhaps, on which such abundance of respectable contradictory,authority may be cited ; and for the ease of the Court in investigating .the subject, they are referred to *Smith*v. Groker, 5 Mass. 539 ; *Burnt*v. *Adams*6 Ibid. 519; *Da/oidson*v. *Gooper,*11 Mees, and "Welsh. 778; Chitty on Cont. 785-6, and notes and cases cited; *Waugh*v. Bussell, 1 E. C. L. Rep. 241; *Batch*v. Batch, 9 Mass. 307. The doctrine that an immaterial alteration made by a stranger, will *not.*vitiate a bond, is founded in correct principles of pleading. *Waugh*v. *Bussell*ut supra. And that it will vitiate, if made by the obligee, is a departure from those principles, for the declaration is the same in both cases. If it be necessary only to set out the substance of the bond, upon what principle is it that words added by one, will destroy, which added by another will be harmless? The distinction can be founded only on the idea of punishment; and this is a perfect anomaly in the law. If the purpose be to guard the instrument from all vice, it ought to be void by whomsoever the alteration is made. It is moreover absurd to apply the doctrine to a covenant to pay money and pretermit it in a covenant to stand seized of a use.’ *Fal/mouth*v. *Boberts,*9 Mees, and Welsh. 469.

The true and sensible doctrine is, that the bond becomes void when it is a forgery. This is ample protection.

*W. A. Wright*and *Busted,*for defendant.

*38Pearson, J.

Admitting that there is no • error in respect to the first point, and that whether an instrument be a bond or a will, depends upon the intention of the maker, which is to be ascertained as well “from the testimony of the subscribing witness and other circumstances” as from “ the phraseology of the instrument,” it is very certain that its contents have an important bearing upon the question; in fact, the words used in it are, in most cases, decisive of the character of an instrument.

"We think there is an error in respect to the second point. His Honor was of opinion that the alterations, by *whomsoever*or *wheresoever*made, did not avoid the instrument, because they did not change its *legal*■effect, and consequently were im-án aterial.

Erom this general language, the appellant has a right to assume that the alterations were made by *the'plcdnUff after the instrument toas*executed, and in that view, we are now to consider the question. This renders all the learning in reference to alterations in materia land immaterial parts, made by a *strcmger,*inapplicable. For the sake of avoiding a vexed question, discussed in *Nunnery*v. Cotten, 1 Hawks’ Rep. 222, *Pullen*v. Shaw, 3 Dev. 238, *Matthis*v. Matthis, 3 Dev. and Bat. 60, “Pigot’s case” and the numerous other cases cited, we will admit, that an alteration of a *hond*made by the obligee in an immaterial part, does not avoid the bond, and that any alteration is immaterial which does not change its legal effect; for instance, if an instrument is, *without question ¡*a bond, i. e., “ One day after date, I promise to pay A B $500, for the payment of which sum, I bind myself and my executors for value received,” (sealed and delivered,) the addition of “ administrators” after executors, or interlining *“*witness my hand and seal,” although made by A B, does not alter its legal effect, and, according to our admission, does not avoid the bond.

But it must be borne in mind, that this admission is -made upon the supposition, that the character of the instrument as a bond is fixed. In our case, the character of the instrument *39is the very question in dispute, and bis Honor was led into error by assuming, in the first part of bis charge, that the character of the instrument was fixed, without reference to the alterations, and afterwards, in the second part of the charge, treating it as a bond, under the misapprehension that the question then was, whether the alterations changed its legal effect. The instruction prayed for, in the second place, was, that the alterations avoided the instrument, supposing it to have been executed, leaving its-character undetermined. Now, although the alterations were immaterial in reference to the legal effect of the instrument, supposing it to be a bond, yet they were clearly very material in reference to its *character,*that is, whether it be a bond ora testamentary disposition, for this, as we have seen, was to' be decided mainly by the words contained in it; and it may well be, that a word will change its *character,*although, supposing that to be fixed, the same word would not change its legal effect; for instance, if one make an instrument, in writing, for his *executor*to pay A B $5,000, the addition of the- word “ administrator” tends to fix its character as a bond, and to repel the idea of its being a direction to his executor as a testamentary disposition, by providing for a case of intestacy ; so, the words “ witness my hand and.seal,” have a tendency to give to it more of the appearance of a bond, and consequently to influence the decision of the question as to its character. In this view of our case, the alterations were material. It is admitted that the alteration of a bond by the obligee in a material iiart, so as to change its legal effect, avoids it. This is upon the ground, that it is a wilful and fraudulent attempt to change its nature, and amounts to a “ spoliation.” The same principle applies to an alteration of an instrument, by the party interested under it, in.a material part, so as to-change its character; upon the ground, that it is a wilful and fraudulent attempt to change its nature, and amounts to “ spoliation.” In like manner, expunging a word, if the character of the instrument be undisputed, may not change its legal effect, whereas, if the question be as to its character, such expunging may change it *40altogether, and would consequently be a material alteration.For instance, “ I give and bequeath to AB my sorrel horse,” (signed, sealed and delivered). This is a testamentary instrument. Expunge the word bequeath, and it becomes a deed of gift.

The case does not state distinctly that the instrument in question was delivered. This circumstance would tend strongly to fix its character; for delivery is necessary to make a deed, and, although not wholly inconsistent with the making of a will or a testamentary disposition, is very rarely a part of the *res gestee*at its execution.

Pee CubiaM. *Venire de novo.*