
    COURT OF APPEALS, (Ei S.) JUNE TERM; 18231 '
    
      Mason et al. Lessee, vs. Harrison and Boggs.
    Awiii.oms atsipss whereof i> this 14ih clay of june mi:, and publish ilns ^'itSmentwín «i© presence of,” whoeproTel"eS íímé^S^mokmK «imUndwXxt'Si1, Sisasen«?°ttmi to f."?iy wintiie’ww ««““poMmo’ml ij must make ids mark: that one of the witnesses assisted him. fo make, his mark, T>y pressing’hisfin? geis to tiie.pen; that the witness did not porceiro that the testator ”intrve”yin mi” j"5 ^h"j «■etir?Stiie«*s wíSíésseámui ímS th?1 sam™ "oom out 1hTO."v'™' thrrhewa, in iiu* room -it the time the luit liad finished subsmhiiwMs naoie. The will \v*»s tak en hy thetviiucná&Tfit wu'iíil swered'yes.'^Thatas till SfSsiS m¡mesd, haiithhL mrihe thSínMnís iiisl'heád round; witnesses bedeved lie could hove hotfv » ut another of the -witnesses thought that he could not turn his liead,- from his debilitv or wealcttoss * The county court hejd, that the execution of lie instrument of writing* was- not according* to law and had not'been sufficiently proved, and refused lo permit it to be read to th.\iury; and also re*fusedto permit the evidence.- given in relation thereto, to be submitted to the jury. Oil appeal, reversed by the court of appeals*
    Appeal from Caroline county court. Ejectment for two tracts of land, one called Tilghman’s Gift, and the other . t ' il‘ , , . Jilghmarfs Gift *Resiirveyed. The defendants., * s *? .. J •' .. preserlt appellees,).pleaded the general Issue. At tli<5 trial, the pláintiíf deduced a regular title to the lands in. Hussbon down to Thomas Masoñ, under whom the lessors °f the plaintiff claintéd title. He then produced an ihstruhient of writing, purporting to life the last will arid ttistameni of the said, Mahon, whereby, amorigst other things, he devised unto his brother William Winchester Mason's children, all of his real estate in fee, and personal estate to be equally divided; and concluded as follows. “In wit- . _ v ... . - _ _ ,. v ness whcrcoi L this 14th day ot June 1817”, declare ana . v . . . . . • pubhsh this to be my last will anti testament m the pre1 J gence of,” and it was attested by three witnesses vizt . J Solomon Scott, John Thomas and Charles Tilden; who, by 5 7 ' J, Prokafe to the instrument, made oath; f‘that they did subscribe their names as vntnésses to the said paper vJriting; which was signed by Thomds Mason,' in the presence of thsni, as his 1 ast will and testament; and that tire said paper writing is the seif-same identical paper that they and of them did sign us witnesses, as and for the last will and testament of the said MuSon.” The plaintiff then gave in evidence, in relation to the said instrument . .. , writing, by a witness named Solomon oc.ott, that on the o f/ , 14th of June 181F, he went to the house of Thomas Ma-7 son who was' very bloody, and appeared badly wounded. Doctor John Thomas observed to him, that Masón wanted his will written, and said “stay and write his will, you caH write better than I can.” The witness then asked for and obtained pen and’ paper. About this time Heniy R. Pratt came into the room, arid said “give' me pen, lean write faster than you.” Pratt then sat down to write the" will, anti after théf preamble was written, Doctor Thd'mas told Mason they wéVe ready to write the will. Thomas' then asked him how he would ■'have Ins property devised? He said ‘‘give it to my brother’s children.’’ The witness then told Thomas to ask Mason if he meant his brother William Winchester Mason? Mason said yes. Then Pratt wrote down the devise of the real estate in fee, and the personal to be equally divided amongst them. Mason then said, “I want to make some other devises.” Pratt then wrote down, “with the following exceptions.” Thomas then asked Mason what else he wished to dispose of? He replied, give to Luther Kirlz the tan-house lot, and all on it. Thomas then asked him if they should include the currying shop? And he said “no; begin at the gate, run with the lane to the ditch.” Mason being asked a second time if thé curryihg 'shop should be included, answered “no,” and seemed somewhat irritated, and said again, “begin at the gate, run with the lane down to the ditch.” Thomas asked what else he, ’would have disposed of? Mason said “give to Mr. Coursey old Sam, his wife Miaña, and their youngest child.” He was asked, what Coursey? And he answered, “Samuel Coursey. ” Thomas then asked Mason what else? When he said “Mrs. Londen has been long in my service, and done a great deal for me, and was getting old, and I think it right to do something for her,” and then said, “give her glOO per annum for life out of my estate. ” Mason was then asked if there was anything esle? He said “no.” Thomas then asked him who he would have for his executor? and he said “Mr. Bovrke.” He was asked if he meant William Y. Bourhe? and he replied “yes.” Pratt having written down these filings, took the paper to Mason, and read it to him. Pratt then took the paper to the table, and wrote the concluding part of it. Thomas then told Mason the will was ready to be signed, and called for a book to lay the paper on, and then took the paper to Mason, he being raised up; Thomas put the pen in his hand, but Mason did not make any attempt to use the pen. Thomas then rose up, and said to the witness, “I wish you would put the pen in his hand.” The witness then put the pen in Mason’s hand, and pointing with his left hand said, “Mr. Mason sign your name here,” pointing to the place where he was to sign. Mason made no attempt to use the pen; the witness looked at him, and seeing his head begin to settle down to his breast, said to Mr. Coursey “lay hint down, for he is dying.” Doctor Tilden, who had just before come in, had some toddy made,, and put it into Mason's mouth with a tea-spoon, and after á short time Mason revived and seemed as well as he was before. It was proposed by some oho in the room to take Mason and put him on the bed, but the witness said it would be best for Mason to sign his will where he was. The witness then took the will to Mason, he being raised, and put the pen in his hand, and said to Maso*1, “sign your name here,” pointing to the place where he was to sign. Mason then looked at the witness, and said “I cannot see.” His spectacles were got and put on his nose. Mason then said, “I must make my mark.” The witness asked thosé who were standing by if they thought it would be wrong to assist him to make his mark, who said no! The witness then put his hand to that of Mason, and pressed his fingers to thé pen, and asáisted him to make his mark or cross upon the said instruíiiéiit of writing, as it appears thereon; but the witness did not perceive, nor does he think that Mason made any effort whatever in making the mark or cross, tin being asked, the witness said that Mason's hand lay on his thigh, and Ivas extremely cold. The witness then took the paper to the table, and wrote Mason's name—his Christian name (in one side of the mark, and his surname on the other, and the word “his” above the mark, and the word “mark” below the mark. . The witness then observed to Doctor Thomas and Doctor Tilden, “we must be witnesses,” there being no 'other persons present. The witness then subscribed his name ás a witness, and Doctor Thomas and Doctor Tilden did the samé,'as quick' as one could write after the other,* and Mason was in the room when they all signed. The witness is certain that Mason was not out of the room when Tilden subscribed his name, and just as Tilden had written his name, they were talcing Mason up' to carry him out, but he is sure that before' be got to the passage door Tilden had written his name'. As soon as the' witness thought they had got Mason on his bed, he said to Doctor Thonias anti Doctor Tilden, “let us take the will into the room to Mason, and aslc him if this is his will.”' The two Doctors, and the Witness, then went into the room where Mason lay; as they entered the room he was lying on his back, but just then stretched himself, and turned partly on his left*side. The witness then held the paper before him, and asked him “Is this your will?” and he said “yes.” The witness then asked him who should take charge of the wills shall Doctor Thomas? He said “yes.”: ° . •* The will was then folded up and given to Doctor Thomas,. . - r ° When.the witness, Doctor. Thomas and Doctor Tilden, subscribed as witnesses, Mason was in the same room; that the table where the witnesses subscribed, their names was at the opposite side of the room, or-the side of an opposite door, and partly between the door, and a window, and. Mason, as he lay, might have seen the witnesses subscribe their names to the will if he had turned his head round; and the witness believes he couid have turned his head or body, (because he saw him turn in his bed as before stated,) at the time the witnesses subscribed their names. The bed, on which Mason was lying, was drawn back, and’ Mason was resting more on his back, than when he was held: up. That all the time when Mason was giving out his will as aforesaid, he appeared cool’and collected, and perfectly in. his senses, and to understand perfectly what he was about. And at the time the said mark was made, Mason appeared' to do the same. The plaintiff'then further gave in evidence the same facts, by Henry E: Pralt; and also gave in evidence, by Doctor Charles Tilden, that he was called on as a physician to attend- Mason, &c. After Pralt had finished writing, the instrument of writing was brought to Mason where he sat, either by- Doctor Thomas or Mr. Scott. He appeared then so much debilitated, that the witness thought he must sink, and proposed he should be laid-down. He was laid down, and in a short time some toddy was given to him by the witness, and- after a few minutes a, revival appeared to take place, indicated by his raising his eye-lids, and holding his right hand, and shaking hands with some person. Mason was then raised up,, and the instrument was presented to him again, and the- pen. was put into his hand, and be held it in his hand, but he appeared to be so tremulous in his hand that it was proposed that he should make his mark, and the mark was made by the assistance of Solomon Scott. The paper was then taken to the table, and the witness and Solomon Scott and Doctor Thomas, went to the table, and Scott observed we must be witnesses to the instrument of writing. The witness and Doctor Thomas subscribed the will as witnesses, and the witness has every reason to believe that Solomon Scelt also signed it,- because he saw him writing. The witness signed after Doctor Thomas. As soon as the witness _ got up out of Use chair, after he had subscribed his name, he immediately turned round, and did not see Mason, he . J > ■ 'having been removed into another room. It was then proposed by Scott that they should go into the other room with the paper, which was agreed to, and they went, into the other room, where they found Mason lying in the bed partly covered. Thomas or Scott then held up the paper to him, and. asked him “Is this your— (something, for the witness did not recollect whether he said will or not,”) to which he replied “yes.” Scott then asked him if he should give the paper to Doctor Thomas? and he answered “yes.”Doctor Thomas then asked him if he should seal it up there, or take it home and seal it? to which he replied “take it home.”- Mason in a very few minutes after asked for his keys, and they were brought to him. He then told srnne one to look in one of the drawers, and there they would find some notes, and nearly about the same, time Mrs. London asked him if lie remembered 820 that she had loaned him? be said “yes,” and then told some one to pay her 820 ill specie, saying that there was some specie in one of the drawers. That at the time the witness went to the table to subscribe as a witness, Mason was silting at the front, supported with his back towards th,e table, and could not see the witness subscribe the paper without turning his head, and he thinks that lie could not turn his head from his debility or weakness. That Mason died in about three quarters of an hour after lie was removed into the. other room. The plaintiff then gave in evidence to the jury, by the testimony of William Hard-castle, Bobert Hardcastle, and Bcckington Scott, certain facts which are not considered to be material. The plaintiff then offered to read to the jury the aforesaid instrument of writing, as the last will and test ament of the said 'Thomas Mason, and to submit to them the aforegoing evidence which had been given respecting the same: but the defendants objected to the reading of said instrument to the jury, as not having been executed according to law, and sufficiently proved. The court ['Martin, Ch. J. and Bobins A. J.(] were of opinion, that the execution of the said instrument was not according to law, and had not been sufficiently proved, and so declared, and refused to permit it to be read to the jury; and also refused to per-salt the said evidence, given in relation thereto, to be sub mitted to the jury. The plaintiff excepted; and the yer-diet and judgment being for the defendants, he appealed to this court.
    The cause was argued before Buchanan, Earle, Dorsey, and Stephen, J. by
    
      Bullitt and Kerr, for the appellant, and by
    
      J. Bayly and Carmichael, for the appellees.
   judgment reversed, and procedendo awarded.  