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

fore stated, he wholly failed to instruct the
} Jury that il was necessary for the party
seeking to set up the paper as testament
TO show that it was found among the yalu-
able papers of the deceased, and we are,
therefore, wholly unable to discover what
application the Jury could make of this
portion of the instructions.
1t cannot be said his Honor meant
thereby to say TO the jury that il must APP
pear that the paper was found among the
valuable papers Of the deceased after his
death, or that the jury 50 understood it, be-
cause the counsel for the defendant asked
the eourt to instruct the jury chat il is in
cumbent on the plaintiff TO prove that the
writing offered as a cOdicil to the will of w.
G. Shelton, was found after his death and
among his valuable papers, or lodged in the
handsofsome person forsafe keeping, which
hedeclined to do, holding the law to be as he
had already charged thereby saying in
effect 10 the jury that such proof was not
necessary. The instruction asked for ought
TO have been given TO the jury, even with
out the application of counsel. They are
substantially in the language Of the statute,
and the refusal of his Honor 10 give them
is error. Under the rule laid down by his
Honor, the jury, upon finding the writing
was in the hand OF The deceased, and that
his handwrite was generally known among
his acquaintance, would have been
compelled TO have feund that the writing
was eodicil TO the will, even though
it had been a promissory note, receipt,
or any other character of instrument,
and that too without reference to the
question as TO whether the deceased in
tended il TO operate as documentary paper
or not. Underline provisions of the will,
Nm. Shelton, the brother of the deceased,
or his heirs, would be entitled TO a remain
der interest in certain lands belonging to
the teststor, and if the paper writing pro-
pounded az a codicil 10 the will be admit
ted 10 probate, that interest in remainder
will be defeated hence, it il indispensa-
bic that all the requirements Of the statute
shall be complied with.
This court has said in constituting the
act Of 1884, Oh. 10, sec. 4, the provisions OF
which are very similar 10 the provisions of
the section of the Code before referred to,
no better diinitiOn of the meaning of the
words valuable papers" can be given than
that "they consist Of such az are regarded
by the testator as worthy Of preservation,
in his estimation of some value. IL is not
confined to deeds for land or slaves, obi
cations for money certificates for stock,
any others which are kept and considered
worthy of being taken care of by the par
ticular person, must be regarded as EN-
braced in that description. This require
ment is only intended as an indication on
the part of the writer that il is his inten-
ton 10 preserve and perpetuate the paper
in question as disposition ofhis property;
that he regards il as valuable.
To be found among his valuable papers,
implies that it must have been placed there
by the writer, or with his knowledge and
assent not surreptitiously by some other
person, and 20 deposited with intent and
purpose at the time that it should be his
will but when all that is done in conform
ity TO the statute, it is equivalent to pub
LEGATION; IL requires something more than
verbal declarations to revoke or defeat it,
There must be some act done indicative Of
4 change of purpose, such as the cancella-
ton, destruction, or removal from the
place of deposit, or reclamation from the
hands of the person with whom it may
have been lodged" Mari as. Mari, II
Hum. 1903.
Now, we think it follows from these def
nitions, and the reasoning of the learned
Judge who delivered the opinion Of the
court in this case, that TO give validity TO
a paper as a testament, nader the provisions
Of the Code before referred 10, it must have
been deposited by the testator, or with his
assent among his papers which he regarded
as valuable or desired 10 preserve, or In the
hands of another for safe keeping, with the
intent that il should operate as his will.
Suppose, then, in this case, the testator be-
lieVed he had revoked the will of 1916,
whereby he thought il Of no value, and
had consequently thrown it aside az worth |
less, with the writing attached, which is
now propounded for probate as codicil, |
and il afterwards turned out the testator |
was mistaken in the belief that he had re- |
Voked the will and consequently mistakenin |
his estimate of its value, could the writing |
attached be probated IA a codicil to that will |
according TO the principles announced in |
he case Of Mari rs. Mari? We think not. |
To hold under such state of facts that il |
,ould, wonld be- hold that the testamentary |
character Of the paper depends upon the |
act that the paper with which the writing |
8 found is valuable, rather than upon the |
intent with which it was deposited, and |
,iye it effect even against the interest of |
he testator az manifested by its removal /
rom the place where il may have been /
deposited, with paper regarded as
valuable, and thrown aside with those re- /
,arded as worthless. 1t follows then that
IS legal proposition, the instruction of |
MS Honor, given to the jury upon this
Ioint is erroneous. Why under the facts |
# this case, as disclosed in the record, his
Honor, the Circuit Judge, deemed it neces-
AIRY 10 give such instructions we are nm
bile TO conceive.
Other questions have been raised in
but we do not deem il necessary
o notice them, farther than to say we
hink there is nothing in them. For errors
n the charge Of the Court the judgment
will be reversed and the cause remanded.
HAWKINS, Judge.