Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-12-16

ing witnesses to tho n signed By the oststor and
dated july 9th lsel but Is without witnesses II is in
these words; "Wm Shelton nor his heirs are TO have
any my estate, II VIM Shelton my brother and
Bis heirs w. G. Shelton died in 1858 The proof
SLOWS that the writing offered for probate codici Ia
tue VIII Is ali IN the hand writing Of tho deceased and
that has hand write generally known among his
quaintances There is proof showing that sometime az
ter the death OF w. g. Shelton the will was found in
bOundle Of deeds in his Secretary It also appears that
during the ait Several years Of bis life he fsqaeaty
spoke o. his ireds and acqussntauces aboat making
will and the disposition be intended to make cf his prop
ey and upon occasion stated in substance, that he
had already neglected il too long, and never, far as
the record aaclOses after 1855 intimatcd that he had
will The plaintiff, who was the nephew Of the os'ator
aud the principal legates aud devisee under the g
lived with him al the time Of his DEATH and took posses
sion Of his papers AFTER which be said witness his
uncle said he had 60 will to another be stated ais uncle
left will and to another be stated he had searched
for win and could find none lie also stated he thought
tho heirs ought 70 come together and give h the home
place. I'D faks8ht M TIC
It Is insisted he proof does rot show that the es
tatOr intended the writing dated July sth 1884, should
take effect cOdci to part Of his will and that the
charge Of his Honor the circuit judge the jury this
branch Of the erroneous and that he also erred
10 refusing % give certain instructions asked for by the
| counsel for the defendants
The instructions Of his Honor upon this BREACH Of the
case are singulsrg Obscuro and detective he said to
the jury; "n they satisfied from the proof that
tho writing appended dated in 1851 was the handFrit
ing of the deceased they should end the same to be
eedic provided It was not shown to them By proof that
ne was Of unsoond mind at the time dated that
The proof must show that the handwriting of the deceas
generally known by his neighbors and aequaip an
ees The substance of those Instructions under
staad them, i tEs If the jury satisfied from the
proof that the writing dated 10 1851 and appended 10
the viii Of 1916, in the handwriting Of the deceased
and his handwrte generally known his acquain-
ances, they should find that il eodieil 10 the WILL
unless It appeared be was Of ansound mind at the time Of
the date shereof These requisites fail far short Of tho
requirements of the statute in order % constuso the
writing eodcil 70 Che E valid Documentary pa
| per.
Section 2, 1853 Of the Codo provides "But paper
writing, appearing to be the will OF deceased perssn
written ~ him. having his subscribed TO it in
serted IN some part Of it, aud found after his death
among his valuable papers, lodged ia the hands Of
another for safe keepngs shall be good and sufficient
convey lands, IL the handwriting is generally known by
his acquaintance aud proved by at least three credit
able witnesses that they verify believe the writing and
every part Of it to be IN lis hand"
His Honor failed to instruct the jury that it
sary, in order to give validity the writing as tesla
ment that the Of the deceased must be subscribe
to inserted in part Of it, and the proof show
that the paper found after the death of the deceased
among ms yaiusois papers OF lodeedtn tho hands Of
another for safe keeping and the facf that il was the
handwriting Of the deceased must be proven by least
three credible witnesses Yet all these qases are as
indispensable under the statute the procf of the fact
that the instrument is in the handWrite of the deceased
aud that his handwrte is generally known anon his
aequainiances; all akcu together equ'aent to pub
LEGATION. ~
Under these instructions Of his Honor all the Jury
hal to do to inquire whether the proof satisfied
them that the instrument in the handWte of the de-
ceased ard whether his handwrite generally known
among his acquaintance and being satisfied the proof
established these two propositions, they compelled
to find ia favor Of the codc without inqnirng whether
it had been found after his death among his valuable
papers, lodged in the hands Of another for safe keep
ing, whether the fact that it is in the handwrite Of the
deceased had been established by the testimony Of at
least three credible witnesses yet Notwithstanding these
Instructions strangely defective his Honor seems
to have had the statute before him. least its provis
ions In bis mind for no rays further shat il they found
the paper Witnessed by subscribing witnesses
and signed by the deceased in the presence of the Wnes
and that the witnesses attesed the his
quest and in their presence he Acknowledged the
to be his last viii and testament that then the paper
would be Eaiuable, and, in eontemPaton Of law the
writing attached 10 the papcr dated in 1S5 would have
been found among bis valuable papers.@ But as before
stated, he wholly failed instruct the jury that it
necessary for the party seeking to up the paper
testament to show that it found among the valuable
papers Of the deceased and are therefore, wholly
able discover what application the jury could make
this portion Of the instructions.
It cannot be said his Honor meant thereby to say to
the jury that Il must appear shat the paper found
ssng the valuable papers Of the deceased after death,
or that the jury understood It, because tue counsel for
the defendant asked the court to instruct the jury thAt
is incumbent the plaintiff prove that the writing
offered a eordicil to the vii eff W. G. Shelton
found after his death aud among his valuable papers,
ged in the hands sOmeapersOn for safe keeping
already charged thereby saying in effect to the jury that
such proof necessary The instruction asked for
ought TO have been given to the jury, without the
application of counsel. They substantially in the
language of the statute and the refusal Of his Honor
give then is Under the rule laid down by his
Honor, the jury, upon finding the writing was in the
hands of the deceased and that his handWrite gen
eray known among his acauantances would have been
compelled to have found that the writing a oodic to
the will even though il had been promssory note, re-
cep any other character of Instrument and that too,
without reference to the question as TO whether the de-
ceased intended Il to operate estamonaFy paper
Under the provisions CT the will N. Shelton the
brother Of the deceased bis heirs would be entitled
remainder interest in certain lands Belonging to the
testator and if the paper writing prOpOuuded cod
Gil the will be admitted to probate that interest in
ainder will be defeated hence il indispensable that
al the requirements Of he statute shall be complied
with. f aaE
This court has said in constituting the act Of 1884 CHI
TO- sec s. the pros sions Of which very similar to the
provisions Of the section Of the Code before referred to-
no better definition Of The meaning of the words valu-
able papers" perhaps be given than that "they
ss OF such regarded by the testaor worthy of
preservation; in bis estimation of some value It is not
confined to deeds for land slaves obligations for money
certificates for stock; any others which Kept and
considered worthy Of being taken OF by tho parcu-
lar perssn, be regarded embraced in that de-
scripon This requiem is only INTENDED as an midi
cation the part Of The writer that il is his intention to
preserve and perpetuae the paper in question a dis
position Of his property that he regards IT as valuable
It must have been placed tero by he writer OF with his
knowledge and assent surreptiOusy, by other
person aad deposited with intent and purpose at the
time that it should be his will but when all that is done
in conformity 10 The statute, it is equivalent to publ
cation; Il requires something mlrs than verbal deeara
t0us revoke defeat t. There must be act done
Indicative Of a change Of purpose, such the cancela
ton destruction removal from the place OF deposit
reclamation from the hands Of the person with whom il
NAV have been lodged MAR. Marr L Hum. $685.
Now, think il follows from those defnions, add
The reasoning the learned Judge who delivered the
opinion Of the in this case that give validity
paper tetsmont, under the provisions Of the Code
b,foge referred to- il must have been deposited by the
tesat0r With his assent among his papers which he
rSgarded as valuable desired pusserse, in the
hands Of another for safe keeping with the intent that
il should operate his will Suppose, then, in this
the believed he had revoked the will Of
1915 whereby he thought il of value, and had
soqssnty thrown it aside worthless with the writing
attached which is propOundsd for probate codi
Gil and It afterwards turned out the estator mis-
taken Ia the belief that he had revoked the will aud
consequently mistaken in bis estimate Of is va lue,
could the wciting attached be probated as co;ic to
that VIII according TO the principles announced 10 the
case of Mari Mar We think not. To bold
der such state of facts that it could, would b5 to hold
that the tesamentary character of the paper depends
upon the fact that the paper with which the writing
found is valuable rather than upon The intent upon
which it deposited, aud give it effect against
the interest Of the testaor manifested by its removal
from the place where il may have been originally de-
posted With papers regarded as valuable and thrown
aside With those regarded worthless. IL follows,
hem legal proposition, the instruction given TO the
jury this point erroneous Why under the facts OF
this disclosed 10 the record, his Honor, the Circuit
Judge, deemed necessary to give such instructions
unable 30 conceive.
deem necessary notice them farther than think
there nothing them For the charge OF the court
hs Judgment VIII be reversed and the cause remanded
attest: J. FRAzERs Clerk.