#### JOSEPH B. OUTLAW, PROPOUNDER OF THE WILL OF DAVID OUTLAW *v.*GEORGE HURDLE AND OTHERS, CAVEATORS.

¿lecoidirtg 1o the practice in this State, a plaintiff may introduce as many witnesses as he deems necessary to establish his case, and if the defend, ant brings in -contradictory witnesses, the plaintifF may call in others to corroborate his first.

The rule of evidence, that a comparison oí other writings with the one in contest cannot be allowed to prove hand-writing, is not varied by the fact that-such writings are in evidence for other purposes. Writings are not properly submitted to a jury’s inspection, but they should be read. As >a general rule, all evidence is addressed to the hearing of the jury, and not to their sight.

The dispositive character of a script propounded for probate, can bo proved by evidence dehors the paper.

In order to entitle a holograph will to probate, the hand-writing of the deceased should he so generally known as to preclude fabricated wills.

The character of an individual opposing an instrument for probate can- * not be considered in determining on the genuineness of the paper.

*151This was an action of devisavit vel NON, tried before bis Honor Judge Manly, at a Special Term of Wake Superior Court, held on tbe 3d Monday of June, 1853.

The'paper writing propounded for probate, as tbe last will and testament of David Outlaw, is as follows :

“ It is my wish and desire that my good friend and relative, Dr. Joseph B. Outlaw, have all my property of every .description. . DAYID OUTLAW.

Dec. 20th, 1848.”

The plaintiff’s counsel .produced witnesses, who deposed that the deceased died at the house of the propounder, on ■the morning of the 21st of March, 1849, about half past five o’clock; that he was buried on the afternoon of. the next day; that, about seven o’clock in the evening of that day, the propounder went from the dining room into his wife’s apartment, separated from that room by a narrow passage, and spoke to his wife, who went into a part of the room where the bureau stood, out of sight of the witness deposing to the fact, when he heard the sound of the unlocking of the bureau drawer, when she presently returned, and handed to the propounder a small trunk, well known as having been the property of the deceased in his life-time, and to have often been referred to by him as containing his valuable papers and effects, and delivered the same to the pro-pounder, who brought it into the dining room, and placed it on a table between him and the witness; then unlocked and opened it, and taking out a considerable number of bonds, (in large sums, due and payable to the deceased,) wrapped up in a paper cover; upon examining which, the paper-writing, propounded as a will, was found at the bottom, and. making a part of the bundle ; the bonds being all labelled with the names of the obligors, and the amount of the bonds, but the paper-writing had no endorsement upon it. During-a ^previous part of the day, the propounder had asked the witness, (Spivey,) who assisted him in the examination of *152tbe trunk, whether it would not be proper to have an examination of deceased’s papers, and' witness replied that it would • and for that- purpose he had better send for some of the neighbors; in reply, the propounder asked, “will not you answer?” witness said “yes.” This witness was a lawyer, and was consulted by the propounder professionally; but, being an old friend, and having been his client, he charged him nothing. Afterwards, and immediately before pro-pounder went to the trunk', as before stated, witness said to him, now is a good time to attend to that business; upon which propounder rose and went for the trunk. The pro-popnder then called six witnesses, who deposed to being acquainted with the hand-writing of the deceased, by having seen him write, and having corresponded with him, who sev--erally deposed that the' said paper-writing, and every part thereof, including the signature, was, in their opinion, in the genuine hand-writing of the deceased, and was written by him.-

It was also in evidence, on- the part of the propounder, that the deceased, on bis arrival at the plaintiff’s house, orr the 16th of March, gave the little trunk before mentioned to plaintiffs wife for safe-keeping ; that he complained of being unwell; continued so until Sunday, when he took lus-hed, and died, as before stated, on Wednesday morning next after.

The propounder’s counsel then stated to the Judge that he wished to reserve the examination of the other witnesses, until after the witnesses for the other side were examined, and their case closed, insisting that by law they had a right so to do, and desired his Honor’s opinion thereon; — thé caveators’ counsel insisting that the propounder was bound., in his opening, to examine *all*the witnesses whose testimony was proper and admissible in chief, and could not, after the caveators’ case should be closed, offer any testimony except such as should be called for and made admissible in reply thereto.

*153Upon this question tbe Court expressed- the opinion: th&ff the practice in North Carolina had been in accordance with the propounder’s views, and declared its intention of following, on this occasion, the established usage.

The propounder’s counsel accordingly reserved this evidence, and offered the same, as hereinafter stated, after the close of the defendants’ case — to which the caveators, by their counsel, excepted.

The counsel for the caveators produced as a witness one Stephen. Moore, of Hillsboro’, who deposed that, in the Spring, or early in the Summer, of 1847, a* Hillsboro’, the deceased applied to him to prepare a willy which he did, and it was executed, and attested by two subscribing witnesses y the testator charging Moore to keep secret both the contents of the will, and the fact of his' having made one, and left the will with him for safe-keeping.

By this will,' legacies were given to the various members of the Hurdle family, and to a daughter of the propounder; the residue to the caveator G-eorge Hurdle;-and George Hurdle, and Benjamin Hurdle, another of the caveators, Were named executors.

This witness, Moore, further proved that he retained this, will in his keeping ’till the Summer off 1848, when the deceased, proposing to make some alterations, a new will was prepared and executed and duly attested. By this will, some additional legacies were given, the legacy to Miss Outlaw increased from- one to two thousand dollars, and George Hurdle named sole executor and residuary legatee. This will Was left in Moore’s keeping until the 4th of December in that year, when the deceased, being about to go from Hillsboro’ to the low country, declaring his intention of returning in the Spring, called upon Moore for the will,- saying he would! take it with him; and it was accordingly delivered to him.

*154In both of these wills, provision was made for the libera, •tion and support of his slaves; 'and in the conversations with Moore, upon the occasion of writing them, the deceased stated that the propounder, and one Bagley, and Mrs. Parker would be disappointed in the disposition he was making of his property: but that the propounder was an extravagant man, and property would do him no good.

. The caveators produced one Lawrence as a witness, who deposed that the deceased came to Raleigh in the evening of the 19th December, 1848, spent the night at his house, and left the next morning; and by another witness, caveat-ors proved that he mot the deceased, about mid-day of the ,20th, near to the house of one Clayton Lee, to which he was going, and which is distant from Raleigh, on the road Ao Louisburg, about fourteen miles.

One Holloway was then called by the caveators, who deposed, that the deceased came to his house, which is about nine miles from Raleigh, on the road to Hillsboro’, on the 9th of March, 1849, and remained until the 12th of the .same month-; on the morning of which last clay he said, that lie had in his trunk his will, written by Stephen Moore, of Hillsboro’; that he had directed his slaves to be settled, by that will; and that, when lie died, George Hurdle -would sec what to do, — how to settle his slaves, — and would find ■enough to .satisfy him for his trouble ■; that, rather than the propounder should have his property, he would put it in the fire ; that he was going down the country to get a negro he Lad given avrny, in order that he might be liberated with the rest of his slaves-; and the witness saw in his possession a bundle, out -of which he took a five dollar note, and which appeared to witness to contain a considerable sum of money. He said, on cross examination, that he did not see but one bill, so as to know .the .amount of it, but he thought ho saw .a .good many ; .but ,of this he .could not be certain.

*155Tbe deposition of Clayton Lee was then read by tbe cav-eators’ counsel, to tbe effect, that tbe deceased left bis bouse on tbe morning of tbe 16th of March, 1849, going, as be said, to tbe bouse of tbe propounder in tbe County of Franklin, at tbe distance of 26 miles from tbe bouse of witness; that, at one moment, tbe deceased proposed leaving with him the little trunk before mentioned, in which be said was bis little all, and told witness, in tbe event of his death without re-toning, to be sure and write to Ben Hurdle, 'and let him have tbe trunk.

Tbe caveators then examined thirteen witnesses, who severally deposed to their acquaintance with tbe hand-writing ■of tbe deceased, and that, in their opinion, tbe paper-writing in question was not in bis band-writing.

Tbe caveators then offered to exhibit to tbe jury a large number of letters in tbe band-writing of tbe deceased, (and which had been produced, some by tbe propounder and some by' tbe caveators, on a former trial of this cause-, and retained and impounded by order of tbe Judge who then presided.) for tbe purpose of showing that tbe deceased always used tbe contraction -“its,” for “ it is,” as evidence to be considered by tbe jury in determining whether the said paper was in tbe band-writing .of tbe deceased or not.

To which evidence, tbe counsel for' tbe .propounder objected ; and tbe Judge, deeming tbe evidence inadmissible, refused to receive the same — to which opinion .and refusal the caveators, by their counsel, excepted.

Tbe counsel for the propounder then offered that tbe opposite counsel might use all tbe letters that were impounded, containing in them tbe word “ its,” by reading that portion of them to tbe jury, or stating to them in which of tbe letters tbe word was to be found, and bow often found, ,or might prove it by any witness, who might, for that purpose,, inspect the letters, without exhibiting the same to tbe jury., which proposition tbe defendants’ counsel declined to accept.

*156The counsel for the' caveators read' to'the jury, for the purpose of showing affection of the deceased for the Hurdles, *tivelve*letters, which, on a former trial, had' been submitted to the jury, for a comparison of hand-writing, and impounded by order of the Judge, in which letters the word *“*its ” occurred twenty-five times, and the words “ it is ” did not occur at all; and the counsel for the propoundcr read seven letters, which had also, on a former trial, been submitted to the jury and impounded, to show affection of deceased for the propounder,, in whiph the word “ its ” occurred twenty-one times, and one letter which had not been impounded, in - which the word “its” occurred once, and the words “ it is” also once: all which letters the jury were permitted to ex-amiue ; but the letters thus put in were not all the letters containing the word “ its” which the caveators’ counsel proposed to read and submit to the jury; but there were fifteen, letters containing the word “its” whieh were not read..

The counsel for the caveators- also; offered to put in evidence the inventory of the effects of the deceased, returned by the defendant as administrator *pendente lite,*for the purpose of showing thereby an abstraction by the propounder of money of'the deceased; to which the propounder’s counsel objected, and the Judge refusing to admit the same, the counsel for the caveators excepted.

The Court thought the letters offered inadmissible, under the rule which excludes manuscripts introduced merely for the purpose of comparison. The offer is in substance a proposition to compare in a certain particular, and the rule-seems fully applicable to it.

It was furthermore held, that the principle off exclusion could not be changed by any inquiry into the number of letters, or the sources from which they were drawn, or by consent on a former trial, now withheld. In connection with ¿his point, the Court stated the rule (as understood by it,) to be, that a document cannot be introduced by a party *157solely for the purpose' of instituting a «omparison; but being competent by its contents, *{aliunde,}*and in evidence, it may be compared by tbe Court and jury; and tbe reason- of tbe rule seemed to be, not because comparisons in general are •improper, for all evidence of band-writing, except that of an eye-witness to tbe writing in question, is by comparison, but ■because to allow a manuscript to be introduced for that purpose, is to give power to tbe party to impose on tbe Court .and jury by an improper selection. If tbe specimen be before tbe Court, and be made admissible by reason of its lit•erary contents, this element of mischief-does not pertain to it, and tbe reason ceasing tbe rule ceases. In conformity with this opinion, the letters, &e. as stated, were introduced, -examined and compared. Tbe plaintiff then examined thirteen other witnesses, who severally deposed to a knowledge -of tbe hand-writing of the deceased, and that tbe propounded paper, with every part of it, tbe signature included, was in his proper band-writing. ^

Tbe propounder also called and examined more than witnesses, who deposed £o having been acquainted with tbe •deceased, and to having beard him, at many times, declare .a very high opinion of tbe propound er .as a physician and ,a ..gentleman, an affectionate regard for him as a friend, and ■great prido in him as an Outlaw. Several of these witnesses also stated that tbe deceased, in these communications, often spoke of him as an extravagant man, who did not know bow to take care of money, but if be bad even a very large estate, would soon waste it, as -the deceased said be bad wasted several fortunes already. Some of .these witnesses also stated their having beard tbe deceased.speak of tbe Hurdles as bis nearest relations, .apd -as persons for whom be entertained a high opinion and regard as gentlemen .and friends^ and as industrious, careful, .prudent men, who knew bow .to take care of property; but complained of George for being itoo much addicted to attending public meetings.

*158The propounder also proved, by several witnesses, that prior to the Spring of 1848, the deceased had declared a purpose to give his estate to propounder, and, by one witness that, during his last illness at the housé of the -pro-pounder, he said to the witness, that he had made many wills, but had then arranged his business, or his business was then arranged, (but which expression witness did not recollect,) to his satisfaction. He also proved, by one Fisher; that, on the afternoon of the 12th of March, being the day he left Holloway’s, the deceased, being in Raleigh, express' ed to him great affection- and regard for the propounder and his family; that, although he had nearer relations, they had treated him with greater kindness than any of them; said that he was then going to his house, and expected to'make it his home for the residue of his life, except when he was travelling about; that he expected to have something to leave them when he died; it would not be much to anybody, and he did not know that it made much difference what became of it after his death; and, in the same conversation, deceased said the propounder spent money as fast as he got it, and said also that he was a good and honest man.

Many letters of the deceased were read by the propound-er, to show the affection of the deceased for him and his family; and others by the eaveators, to show his affection for the Hurdles, particularly George -and his family. These letters were also submitted by the parties to the jury, to be compared with the propounded paper; the propoundcr insisting that, by this comparison, the genuineness of the paper would be made manifest, a.nd the caveators that the contrary would appear thereby ; and particularly that its comparison with a letter of deceased, addressed to the propunder, would show that the paper had been copied therefrom^ and was a forgery. Of the witnesses examined'in the cause, (in number more than eighty,) seventy-eight were acquaintances of the of the deceased in his life-time; but, of these, *159only thirty-two spake to a knowledge of his hand-writing r these witnesses generally were from various counties and parts of the State. On this evidence the case was submitted to the jury, and the counsel for the caveators made the following points:

1st. That the paper writing was not upon its face a testamentary paper, and therefore was not entitled to be deemed the will of the deceased,

2d. The paper, not. being testamentary on its face, if it could be proved to be a will, there must be, to that purpose, direct and express evidence, that the deceased had adopted or recognized that very paper as his will, and that in this case there was no such evidence.

Sd. That it was necessary for the propounder to prove, as a substantial fact, that the hand-writing of the deceased was generally known to his acquaintances, and that, in this case, there was no evidence to establish that fact, within the meaning of the law requiring it.

4th.' That, if the jury believed the testimony of Holloa way, and Clayton Lee, and that, in what the deceased said to' these witnessess, he referred to the will written by Stephen Moore, there was no evidence in the cause from which the jury had a right to find that the deceased had, in his lifetime, placed the propounded paper amongst his valuable effects, as his will, notwithstanding the finding thereof, in the manner stated, and notwithstanding the declaration made by the deceased during his last illness, that he had arranged his affairs, and what he said to Fisher on the 12th of March, and, without such evidence, the jury ought not to find the paper the will of the deceased.

5th. That, under the circumstances of this case, a mere preponderance of evidence or probabilities, in favor of the paper, was not sufficient to authorise a verdict in favor of the propounder.

*1606th. In reply to remarks of ike propounder’s counsel, insisting on his client’s high character, that his character was not in issue on the record, and that .the Jury were not at liberty to refer to any such character, real or supposed, in coming to a conclusion on the evidence, but must decide without any reference, in any event, to his character.

And .the counsel for the caveators prayed the Judge to instruct the jury accordingly; which instructions :the Judge .refused to give, as prayed, but instructed the jury as follows:

1 and 2. Upon th^ first and second points, the Court stated it was indispensable, in order to constitute the instrument a valid will, that it be intended by the -deceased to '.have a posthumous, operation. But it was not necessary .there should be intrinsic evidence .of that intent. If there be nothing in the paper to conflict with the conclusion that it was so intended, it might be left to the jury, as a question of fact, for .them to determine; and this question should be judged and decided by the circumstances under Avhich the paper appeared to be kept and found, as well -as by its contents : these were submitted to the jury, and they were instructed, that, if .they collected from them that the paper .was intended by .the deceased, as a disposition of his estate, .to take effect at the termination of his life, it ivas sufficient. But, if it was deliberative in its nature only, and intended us *a*memorandum or project.of a will, to bo made at some •future time, it was insufficient, and the case of the propounder .would fail on that point.

8. Upon the .third point, the Court instructed the jury, it was necessary it should appear that the-kand-writing of the •deceased was -generally known to his acquaintances ; but .this .requisition did not mean that a majority oí those who ..knew him should also know his hand-writing. The power to .make a holograph will, in that sense of the phrase, would Be.a rare qualification. That .it was .not easy Jo define, by *161terms "belonging to-our language, what’is meant by the word *general,*in connection with the topics character, reputation, knowledge, &c. But it is supposed not to mean what everybody may think or 'know, or what indeed a majority shall think or know. It means, rather, such opinion and knowledge as is entertained by a considerable number of persons; so considerable in number as to make it common, general, In the popular interpretation of those words. In this sense, -‘the Court was of opinion that there was evidence to be left to the jury on that point, whether the hand-writing was gen-erally .known, and evidence from .which the jury might infer .that it was so known.

4. Upon the fourth point, the Court collated the proofs ,on both sides, and called the attention of the jury to such as .were in conflict with each other, and submitted it as a question of fact, whether the .paper propounded had been 'left by the deceased amongst his valuable effects, deposited 'there, by him, as and for his will. 'It was not necessary .there should be positive testimony of an eye-witness to the point of deposit; indirect and circumstantial evidence would do, provided it be satisfactory. That, if the paper produced .onthe trial were deposited by-the deceased in .the trunk 'With 'bonds and obligations for money, ,it was a deposit ..among his valuable.effects, and that requisition of the statute would be complied with. Whether the proofs directed from both sides upon this point .left it satisfactorily established in favor of the propoun'der.: that is to say, whether ■‘.the jury was then satisfied, from the proofs, that the paper was deposited in the trunk by the deceased, and left there •.as a will at the time of his death, the jury were called on to .decide'by .weighing the testimony.

5. On the fifth point, the .Court instructed the jury, that .the requisitions of fhe’law are, that the will shall 1be wholly 'in the hand-writing Of the testator, established at least by requisite number Of '.witnesses-; that it should have been *162placed by Mm among Ms valuable effects, and left there with an intent it shall have a posthumous operation; and that the hand-writing is one that is generally known among his acquaintances. That the propounder of the will asserted the affirmative of these requirements, and upon him laid the burthen of establishing them. That there %as nothing in the pleading, or in the order of introducing the evidence on the trial, which shifts the burthen from the propounder’s to the caveators’ shoulders. That, although the evidence was complicated, the issue was a single one, and that the laboring oar of that, in all its stages, was in the hands of the propounder ; that it was there in the beginning, and is there throughout; and that, if the propounder had not satisfied them, by a decided preponderance of the testimony in his favor, on all the points,necessary to the authenticity and validity of the paper, they were instructed to find against it.

6. Upon the sixth point, in respect to which instruction had been asked by the propounder, the Court remarked in these words : “I have been asked to charge you that, inasmuch as the defence involves the charge of forgery against the propounder, that there is a presumption of innocence in his favor until the contrary appears. Supposing the pro-pounder has failed to satisfy you upon the points necessary" to authenticate the paper, it is needless to inquire how, or' by whom, or for what purpose it Was fabricated, or by whom it was put away among his valuable effects. The propounder having failed to maintain his averments, fails in his case. If the consideration of the case bring you to the alternative that it is a good will if the propounder did not forge it, in such a case, like every other man of undeniably good character, he would be presumed innocent until the contrary appears. But that is not the issue, nor does the case, of necessity, turn on that point. Whether the point bears at all upon the case depends upon the view the jury may take of it, under the-instructions given; and, in the event of its be*163ing brought to bear, how much the principle weighs is submitted to the jury to decide.”

To which refusal to give the instructions as prayed, and to the instructions as given, the caveators, by their counsel, excepted. .

Verdict for the propounder; motion for a new trial; motion refused, and appeal to this Court.

(xraham, for the caveators.

Moore,, Miller, Gr. *W. Maywood and Winston,*for the pro-pounder.

PEARSON, J.

This case, as well on account of the amount involved, as by reason of the many points made upon the trial, has excited much interest, and called for a high degree of ability on the part of the Judge who presided. After a very full discussion at our. bar, and a due consideration of the whole matter, we are glad to be able to come to the conclusion that there is no error, and to feel satisfied that the case was submitted to the jury as fairly, and in a way as well calculated to enable them to decide upon its merits, as could be done, if it was tried over again twenty times.

1. We conclude with his Honor, that the practice in North Carolina has been, and we think it sustained by good sense, for a party to offer as many witnesses as may be deemed necessary to establish his allegation. If the other party chooses, he may rest the case upon it, or he may call witnesses in his turn, and the first party may call witnesses in reply, and for the purpose of adding to the strength of the evidence upon which he at first rested the case. Lord KeNYoN, who had as much good sense as any Judge that ever tried a case, somewhere remarks, “ it is not worth while to jump until you get to the fence,” that is, there is no use in meeting objections until they are presented, or in piling *164up proof until it is made .necessary by what is done on the other side. After the propounder had examined some witnesses, as to the fact of -the hand-writing, if he had proposed to call others to the same fact, his Honor .might hav© put a stop to it, and asked, for what purpose are you doing this ? Why, consume the time of the -Court and jury until you hear from the other.side? When the caveators called thirteen- witnesses, who opposed the propounder’s six witnesses, and swore that they did --not believe the script was in the hand-writing of the deceased, it was proper then for him to call his other witnesses as to the hand-writing, and as to the facts and circumstances relevant and bearing on the matters on which the case was to turn, to wit: >Was the paper in the hand-writing of the deceased ? Did he put it among his valuable papers ? And was it found there at his-death ?

In the present case, the counsel for the prqpounder, from, an abundance of caution, consulted his Honor as to the propriety of not calling *nineteen*witnesses to prove the same fact until the other side was heard from. The course adopted, had the express sanction ©f the presiding Judge, and this surely removes .the .ground of ..exception. In the conduct of a trial, much depends upon the ability of the Judge.; It is for him to see that everything is done fairly,, and that neither side is taken by surprise. These matters-must of course be left to his discretion'.

Mr. Graham, in his able-and well -considered argument,, made the suggestion, that counsel .should not be allowed in conduct of a trial, to use all the .strategy of a General in conducting a campaign. That is true, and the distinction is this: Generals have .no Judge to preside over them, and they take whatever course is best calculated to effect the end. Rut. in the conduct of a trial there is a presiding Judge; it is'his duty to see “fair play.” In the .course of the trial -much quickness of perception is called *165for: but after the- trial is over, if .he sees that one of the parties has taken the' other at a disadvantage, he may grant a new trial. We are confined to questions of law.

2. The caveators had1 a right to prove, that the deceased always, in writing, contracted the words *“*it is,” so as to make them “its,” but they had no-right to put the letters of the deceased into the hands of the jury, and as it seems to us, his Honor has committed an error in favor of the caveators in allowing the letters to be looked at by the jury, and in telling them- that, as they had a right to look at the letters for one purpose, there was no help for it, they might make a comparison of' the hand-writing. This shows that it was wrong to allow the jury to see the letters at all. A jury is to *hear*the evidence, but not to *see*it. If it depends on eye-sight, it is presumed that a Judge can see as well as the jury: as upon a plea of *nul teil record,*or as the fact of a maim, under the Statute in biting off the ear. Statu v. G-ERKIN, 1 Ircd. 121.

With a few exceptions made by Statute in regard to a jury of view, where water is ponded back by a mill-dam, or a line is disputed, the evidence is to be *heard*by the jury and not to be seen by them'. That this is the principle lying at the foundation of trials by jury, will road-ilybe perceived by reflecting that, in ancient times, a jury would be attainted for a false verdict., This of course depended upon the evidence upon which the jury acted in making up their verdict. In regard to such- incidents as the jury had *heard,*that could be set down and rehearsed before the grand assize ; but in- regard to such evidence as the jury might have seen, *setting it doivn*was out of the question. So, as it seems to us, the presiding Judge was too liberal towards the caveators. Although, it be true, that “-all evidence of handwriting, except the evidence of an eye witness, is by comparison ; yet the rule of law requires that the knowledge in regard to the hand-writing, be acquired before, without re-*166fcrence to, and independent of any considerations, that by possibility the pendency of the controversy may have given rise to, one way or the other. At best, an opinion as to the hand-writing of a man must be received by a jury with much caution, and therefore, it is required by law, that such *opinion,*to be fit to be heard, must have been formed under circumstances, when there was no possibility of bias, and with a single eye to the very truth.

3. It is a very grave question, taking all the allegations of the propounder to be true, *is the script testamentary*?— *a'disposition ?*In plain English, did the deceased mean to dispose of his property, after his 'death, *by*the force and effect of *that very paper ?*We think he did. As it embraces *all*his property of every description, it was clear it was not intended as a gift *inter vivos.*'There is nothing to show that it was intended as .a mere memorandum or direction, by which a lawyer was to draw his will; and .as he most unquestionably intended that it should have some effect, it is manifest that his intention was to make a disposition of his property, to take effect after his death, by the force and effect of that paper.

Mr. Graham, with much force, asked, suppose a man had' picked up *this little paper*in the street, would it have occurred to him that it iras a *will-?*We -are very much inclined to think that some such an idea would have presented itself to his mind; and if he had been informed of the facts; that it was all in the hand-writipg -of the deooascd; that he put it away among his valuable papers, and it was found there at his death, then, beyond -question, any one would say ho intended to make that .paper his will. It is said the paper must speak for itself; -any proof, *aliwnde,*is incompetent. That is true, ivhere the -question is merely 'one of construction : but certainly, when the question is, what is the nature and character of the paper ? — what was it intended for ?— the *res gesta1,*all that ivas done touching and concerning it, *167as competent evidence; for these acts impress upon it its «character. COVENTRY v. Williams, 7 Eng. C. L. Rep. 595, This is settled as well here as in England. Clayton v. Liverman, 7 Ired. Rep. 93. Suppose the deceased had requested two witnesses to attest it in his presence, would no.t that fact'be relevant and competent to show what he intended it to be ? Or suppose he had asked some friend to take care of the paper for him, would not that fact have -a strong tendency to show that he considered it a valuable paper.? Would it not be proper to take it into consideration, in order ¡to solve the question what the paper was intended to be ? ’So that, besides the paper itself, we have the facts, as found by thq jury, that the deceased did not treat this as a paper •.such as one would throw into the street,; but he treated it -as a valuable paper — put it carefully away among his bonds, in his little trunk, and it was there found at his death. It is obvious, therefore, that he intended, by the force and effect of this paper, to dispose of his property after his death. He intended it *to be his will.*

.4. The object of the law in requiring that the hand-writing of the deceased should be generally known to his acquaintances was, to guard against perjury; and the meaning is, the hand-writing must be so well known that, if a false paper is propounded, the persons interested in the estate would have no difficulty in getting witnesses who'are acquainted with the hand-writing of the deceased, and can expose and defeat any imposition. Without entering into £ minute criticism of the words by which this meaning is attempted to be expressed, it is sufficient for us to say such is evidently the meaning; and when thirty-two witnesses swear that they are acquainted with the hand-writing, that is proof. enough to bring the case within the meaning and intent of the Statute, and there is no error in leaving it to the jury to infer from such evidence that the hand-writing of the deceased was *ugenerally*known by his acquaintances.” This *168point has been decided by the Superior Court of Tennessee their Statute is copied from ours, and we are pleased to be able to adopt the very sensible construction put upon it by them, in Tate v. Tate, 2 Humphries 465, whieh fully siis-tains the view taken of it by his Honor in the Court below.

5. We will not attempt to treat' this point in any other view than that taken by his Honor. It is enough1 to say, wo agree with him, as well in his reasoning as in his conclusion.'

6. This is the only point about which the Court has had. much difficulty, and I confess that, but for the very decided opinions of the Chief Justice, and my brother Rattle, .1 should say, his Honor wont too far, (notwithstanding the very groat pains he had taken to impress the jury, that the laboring oar in all the stages of the case was in the hands of the propounder,) in saying to them, “if in the way. you look at the case, it is forced upon you to say, did the propounder *forge*this'paper or not, there is a presumption of innocence in his favor’until the contrary is made to appear.” But deferring to their opinion, and being fully satisfied that the case could never again be submitted to a jury under circumstances as well calculated to make the verdict turn upon the merits, I have brought myself to the conclusion, that, although the words of his Honor, taken by themselves, do import a presumption of innocence, such as should influence a jury in a State case, but which should not bo permitted to have any bearing whatever in a civil proceeding like that now under consideration, yet upon the whole, taking the charge altogether, a jury of twelve intelligent men could not have failed to have been fully impressed with the knowledge, that, according to law, the burthen of proving all his .allegations rested upon the propoundor, and it was for him to prove to the satisfaction of the jury that the paper was in the hand-writing of the deceased, that ho put it among his valuable papers, and that it was found there at his death. So that they could say upon their oaths, that *169according to the charge of the Court, and the evidence which had been offered to them, they were' satisfied that the deceased intended *that paper to be Ms.will.*

Judgment affirmed and *& procedendo*ordered..