Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-06

der The pTovigions of the Code, section 2l63, il
must have been deposited by the testator, or
with hi; assent, among ms papers En- which ne
or in the hands of another for safe keeping,
with the infenf that il should operate as his
will"
Hooper. e. al, o.. McQuary.
Al the August term, 1865, Of the County
Court for the county Chatham, paper
writing was propounded for probate as the
last will and testament, andlcodicil thereto
Of w. G. Shelton, deceased. The probate
was contested, and the same was, 10y order
Of the court, certified to the Circuit Court
Of said county 20 be tried. An issue
Of depisdtdf Vel non was made up
in the Circuit Court 20 try the yalidi-
ty of the will and codicil, upon
which a trial was had, which resulted 10 a
verdict and Judgment in favor Of the will
and codicil A motion for a new trial
having been oyerruled, the contestants have
appealed in error 10 this court.
The writing propounded as the will is
dated June 4th, 1886, IL in the usual form
and is signed by the testator, and by two
attesting witnesses. The writing pro-
pounded az codicil 10 the will, and upon
which the principal contest arises, is upon
the same Paper aud Immediately under
meath the signatures Of the testator and the
attesting witnesses 10 the will, is signed by
the testator, and dated July 9Th, 1851, but
is without Witnesses. IL is in these words:
WIN. Shelton nor his heirs is to have any
Of my estate l mean VIM. Shelton my
brother, and his heirs w. G. Shelton
died in 1868. The proof shows that the
writing offered for probate as a codicil to
the viii is all in the hand writing of the
deceBed, and that his hand write was gen
orally known among his acquaint-
ances There is proof showing that
sometime after the death of w. q.
Shelton, the will was found in a
bundle of deeds in his secretary. IL also
appears that during the last several years
of his life, be frequently spoke to bis friends
and scqusintances about making a will,
and the disposition he intended TO make Of
his property, and upon one occasion stated,
10 substance, that he had already neglected
IL too long, and never, 30 far an the record
discloses, after 1858, intimated thai be had
a will. The plaintiff, who was the nephew
Of the testator, and the principal legalee
and devisee under the will, lived with him
al the time Of his death, and took posses
sion Of his papers, after which he said to
one witness, his uncle said he had no
will; 10 another he stated HE uncle left no
viii and 30 another he stated he had
searched for a will and could find none.
He also stated he thought the heirs ought
10 come together and give him the home
place.
IL is now insisted the proof does not show
that the testator intended the writing, da-
ted July 9th, 1851, should take effect az a
codicil 10 or part Of his will, and that the
charge Of his Honor, the Circuit Judge, 10
the jury TO this branch Of the case IL erTo-
neous, and that he also erred in refusing 10
give certain instructions asked for by the
counsel for the defendants.
The instructions Of his Honor upon this
branch Of the case are singularly obscure
and defective He said to the Jury, "If
they were satisfied from the proof that the
writing appended, dated in 1851, was the
of the deceased gthey should
end the same 10 be a codicil provided it
was not shown 10 them by proof that he
was of unsound mind at the time il was
dated that the proof must show that the
of the deceased was generally
known by his neighbors and acquaint-
lnces" The Substance of these instruc-
ions, as We understand them, Is this: il |
he Jury were satisfied from the proof that |
he writing dated in 1851, and appended 10 |
he viii Of 1916, was in the handwriting of |
he deceased, and his handwrite was gen
rally known 10 his acquaintance, they |
,honld fud that il was a codioil 90 the will, |
lnless il appeared he was of nnsound |
mind at the time Of the date thereof. These
equisites fall far short Of the requirements
# the statute In order to constitute the
writing a codicil to the will, or valid tes-
amentary paper.
Section 2l63 Of the Code provides: "But
paper writing, appearing to be the will
# deceased person, written by him, hay-
ng his name subscribed 10 il or inserted in
ONE part of il, and found after his death
moDg his valuable papers, or lodged in
he hands Of another for safe keeping, shall |
e good and sufficient 10 convey lands, if
he handwriting is generally known by his
and IL is proved by at least
hree creditable Witnesses that they verify
elieye the writing and every part Of il 20
e in his hand"
His Honor failed 10 instruct the jury
hat IL was necessary, in order 10 give
alidity 10 the writing rs testament, that
he name OF the deceased must be sub
cfibed 70 OF inserted in some part
4 il, and the proof must show
hat the paper Was foand after The death of
he deceased, among his valuable papers.
4 lodged in the hands Of another for safe.
coping; and the fact that IL was in the
OF the deceased must he proven
u at least three credible witnesses. Yet
II these requisites are as indispensable un-
Ter the statute as the proof of the fact that
lac instrument is in the handwrite Of the
deceased, aud that his handwrite il gen
rally known among his acquaintance, all
AIKEN together are equivalent 10 pnblica.
ION.
Under these instructions Of his Honor.
h the jury had 30 do was 10 ipouire
fhether the proof satisfied them that the
instrument was in The hsndWTite of the
eceased, and whether his handwrits was
enerally known among his acquaintance,
nd being satisfied the proof established
hsse two propositions, they were COM
elled 10 End in favor Of The codicil, With
ut inQuiring whether j; had been found
fter has death among his valuable papers,
7 lodged in the hands of another for
afe keeping, or whether the part that
J in the hAndwrite of HE deceased
ad been established b. the testimony Of
{ least three credible witbesses; yet, not
these instructions are 50
.rangely defective, his Honor seems TO have
ad the statute before him, or AZ least its
Tovisions in his mind, Tor he says further
that If they found the paper was witnessed
2 two subscribing Witnesses, and signed
' the deceased IN the presence Of he Wit
esses, and that the witnesses attested the
me at his request, and in their presence
e acknowledged the same to De his last
an and testament, that then the paper
ould be valuable, and, in contemplation
+ Law, the writing attached 10 the paper,
aied in 1851, would have been found