Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-09-08
OFFICIAL.
Opinions Of the Supreme Court OKthe State
OF Tennessee delivered AT Jackson, AT
April Term, 1855.

/ the father Of the parties died on the-day of
March, 1886, on island No. 10. in the Mississiuti
rlVers a. an adVanced age. Amer 8 very thoroueh h
seareh, made smoug his papers. under the superVIs
ION ana direction Of his children the parties 70 the
SUIT, the hrm conclusion was adopted, that it was
case Of lnlestacy. Upon this presumption, the
heirs divided out the money and stock on hand aad
made partition smoDg lhemeelves. of pert Of Il
real estste OF the value Of about hundred thou
sand dollars, and administration was granted botn in
Kentucky and Tennessee.
About six months after the Death, viz: in the
month OF SEPTEMBER, the plaintiff, &. P. Mari,
FOUND the paper now propounded as a will. II Is
without VIA esses, butts proved very fully and clear
" according to the requirements q 1he Act of
Dc ObeF, 1884 eh. TO- sec g. TO be all in the uroper
handing writ ng Of the deceased With his signature
thereto The Whole contest Is upon that provision
OF the statute 10 relation the place Cf deposit of
the paper. In order 20 make good will under that
at, Il must be left .ng tbs gasable p0pss or es
Of the deceased
The Act Of April, 1884, Oh %, sec. IL, provided
that no will should be good pass lands, without
least two SubseTfbHgg Witnesses, signing as SUCH
10 the presence Of the stOr and having no INFER
est IN any devise Of the land disposed Of by the will
In october Of that year, they excepted from the
strict requirements Of the previous Acs in relation
to Witnesses the case Of hoographie wills dsposit
ed by the tesiator "in the hands OF any person for
safe keeping or 'fouRd among the valuable pa
pers or ELECTS provided the hand WTiiinS OF the de-
ceased was veil known By his acquainianees, and
every part Of the viii proven be IN his handwrit-
ing, by three witnesses
The exposition of this statute has been so fully
given in the case Of Gretchen vs. Ciuiehen, ii
Hump, 81, and some other cases that il is unnee-
essary again 10 reiterste IT, does the question so
presented require it. There is perhaps no sufciens
depart ure from The doctrine Of that case the charge
b-fore US, 10 require comment But The point in the
charge IN which il Is alleged there is error is Ia
relation TO the force given 10 single circumstance
contained in the proof
The main question Of fact on which this case
turned, was, whether the paper vas found among
tne valuable papers Of be licensed TIE deceased
Wss man ofvery &c wealth and extensive business
His papers were very numerous and found in several
places about his house Alter his dea h. they were
collected together aud placed ia Two trunks under
lock. Three days examination was made, as before
stated ofthese papers in the presence Of the heirs
aud 81 their request BY disiHterested persons the
main object Of which vas 10 ascertain there
was viii left OF. net Many Of the papers we're
tied in bundles with labels L. one OF these bun
dies or files, labelled papers Of 10 value" OF ''but
little valve" or mo value nov, il is alleged the
paper IN contest was found The charge IN relation
20 that circumstance, Is vsry emphatic, and reads
as follows
IF it was in = bundle or fle marked Of no value
by Maj. Mari, il would be strong Circumstance
against the viii, if not coRctgsire Again: "If the
will came out Of bundle marked Of no value, by
cumstanee. And agaIu: Suppose you trace IL a.
ind It was in bundle Of papers marked Of no value
by Maj. MARI, but which contained some papers Of
value the reason Of the law is. 10 ascertain the in
teniion Of G ". / Mari, aud if he put it into a
bundle which he considered Of no value, it would
show he did not inter cPut it with valuable papers,
and that he did not intend il 10 be bis will "
On this material and turning point in the case,
We think his Honor erred. The force and effect Of
the fact, Of the label not for the Court bgt the
jury 70 determine
That Of ITSELF might not, in the opinion Of the Jury,
ooncusively show, sthat be did not intend il 20 be
bis viii, nor might they regard it as "a sr0Hy aad
170st irresistible Circumstances" Of the fact that be
did not intend il 10 be his will
Ii it was put there by accident OF by another, or
to avoid discovery while he lived, it would be Of liz
lie OF no force 70 make out intentions against The
the will. So the weight Of this simple tact would
depend very much upon the Circumstances AMI le
glimale presumplions to be made ny the jury from
all the facts proved | was their province and not
that Of the Court, to determine whether it vas a
strong and irresistible, or very slight and iacon
elusive circumstance They might reRard IL Rs suf.
feient to control their verdict, OF they might not
The jury being the lFirfsof facts and weig1ers CT
the evidence, By systsm, be lett 70 the free
exercise Of their Judgment Eilhoul he Uudue bias
that The opinion Of The Court would naturally pros
duee upon their minds Il is for the Court 10 say
that the evidence is competcHf and admissible but
whether it is true, or what weight il shall have
the Issue, Is for the jury determine. The Court
can oaly consider OF this, upon motions for new
trisls The Court uuderthe Constitution can only
stats the evidence, not rsiga t. The jury get the
law from the Court, but he facts from The proof
Whether he jury would, or should have given the
same force TO the fact in question, that the Court
did under all the circumst snCes is not for ~ any
more than his k9Ror 20 say. We would not tram
mel them with an opinion. spOn another trial, as to
the proper force Of this single fact, in making Up
their judgment, on this whole case Il il proper
circumstances 10 20 10 the jury, and to be eonsid
erUd By thpu bur he presumption il raises on the
question Of intention Is net legal and conclusive
enc, but is ouly q fact tending 10 conclusion.
We forbear commenting upon the evidence, as the
fact must be re>tried We would rot be understood
as even intending by opinion, as to the force and
effect ofthe fact cfthe label. Another jury, under
a correct charge, will be left free to settle that
question.
A question Of evidence Is also raised by the Tee-
ord and arqred before US that Willie necessary to
settle now Objecion vas made TO oral proof Of
the inscription on the label, uron the ground that
IL being label e. was the best evidence Of its cOas
tents. and could not be established by secondary
evidence, without laying grounds, &c. The Circuit
Judge overruled the objection, and as We think,
correctly This vas not q writing 10 the sense Of
The rule on that subject If il be in the possession
dered By the Court 10 produce il, on ion, Gnd ia
case Of failure TO 10 So without sufi sent excuse,
its force as fact, would be very much weak
ened. e
The Judgment viii have to be reversed on the FIST
point, and the cause remanded for new niaL
CARUTHsRs.
Test NJ wFLcH, Clerk
The new Yerk Quarantine Mob.
KTurr- lie -.,