
    JAMES BOYD AND OTHERS, HEIRS OF THOMAS BOYD, DECEASED, VS. THOMAS BOYD, RESIDUARY LEGATEE AND EXECUTOR.
    On appeal from the decree of the Ordinary, establishing a will, after the appellants had commenced their case and examined several witnesses, they moved .to strike from the record one of their number, who had released to the other .appellants all his interest, with a view of examining him as a witness, to which .the appellees objected. Held, that the motion was properly refused.
    If the jury believe, from the evidence, that the will was written according to .the instructions of the testator, it is immaterial whether the testator read the -will or heard it read.
    If the capacity of the testator be doubtful, there must be proof of instructions, or of reading over the will.
    
      Lexington, Spring Term, 1837.
    Mr. Justice O’Neall, before whom the case was tried, sent up the following report:
    This was an appeal from the decision of the ordinary of Lexington district, admitting to probate in solemn form of law, the last will and testament of Thomas Loyd, deceased. It is unnecessary to report the whole .case, inasmuch as .the grounds of appeal present only two questions, both of which are purely legal.
    After the appellants had commenced their case, and examined seven witnesses, they moved to strike from the record one of their number, Robert Columbus Loyd, who, it was said, had released to the other appellants all his interest, as one of the heirs of the deceased, with a view of examining him as a witness. The appellee objected to this, on the ground, that to grant the motion, would, operate as a surprise on him.
    The case of Hawkins vs. Lewis, 2 N. & M’C. 141, is the only reported case on the subject; and in that, my brother Gantt placed the rule upon its true principle. After an elaborate examination, he says, “ upon the whole, it appears to me to be a question of practice merely, which depends upon the discretion of the court; and is so to be exercised as not to prejudice litigantsTo have allowed the motion to strike out one of the parties after the case had been commenced, for the purpose of examining him as a witness, would have been to deliver the appellee to the appellants, bound hand and foot.
    The case of Hawkins vs. Lewis, was, however, one in which the name of the party allowed to be struck out, had been inserted by mistake ; and I am not aware of any case in which it has been permitted to strike out the name of. one who was properly a party to the record.
    
      I overruled the motion.
    Thomas L. Veale, (of Spring Hill,) drew the will, and proved that he wrote it according to the directions of the testator, and in his presence ; and as he wrote the will, clause by clause, he handed it to the testator, who appeared to read it; that the testator was then a very aged man, 86 years old, and in bed in much pain, but of sound mind ; that he executed the will, and requested him to take it home with him and keep it, which he did ; that he lived nearly ten months after the execution of the will. I state the substance of Mr. Veale’s testimony, as the substratum on which my instructions were based.
    In compliance with the request of counsel for the appellants, to direct the jury as to the effect of instructions given by the testator to the scribe who wrote the will, I instructed the jury, that if they were satisfied that the will was written by Veale according to the instructions of the testator, they ought to find for the will; and if they came to that conclusion, then it was perfectly immaterial whether the testator read the will or not.
    It will be seen, on referring to the case of Tomkins vs. Tomkms, 1 Bail, 92, that 1 have given to “ instructions ” no greater weight than it justifies. In that case, Judge Johnson, (at page 96,) speaks of Bülinghurst vs. Vickers, 1 Phill. 187, and adopts the language of Sir John Nichol, who lays it down as a principle well established, that when “ capacity is in any degree doubtful at the. time of the execution, there must be proof of instructions or reading over.” The will there was written by the executor, and there was on that trial no proof of instructions as to, or reading over of the residuary clause ; and on this account it was held that the verdict in favor of the will could not be sustained. On examining that case, 1 am satisfied, that although the court were right on the point of law, yet the verdict .ought to have been sustained. For there certainly was proof, which very well authorized the jury to conclude that the residuary clause was written according to the testator’s instructions. That case was subsequently tried, and on the trial, the executor released his interest, was sworn, and proved the fact of instructions ; but the Court of Appeals held that he could not surrender his character of executor, and hence, that his testimony was incompetent, and being so, that there was still no proof of instructions. It will be found on examining, that there is no opinion, on file, in the case at the time this question was raised; it was decided before the death of Judge Nott, and the election of Judge Colcook to the Bank; but no opinion had been prepared ; and when my brother Harper and myself succeeded them, our brother Johnson spoke of the case and the point on which it had been decided, and at last declined putting on file the reasons ,of the court.
    
      To require proof of instructions, or reading over, the capacity must be doubtful at the time of execution. When, however, there is no doubt about the capacity, or the means 0/knowing the contents of the will, it has never been held that proof of either instructions or reading over was necessary to make the will effectual. The fact of execution, when the capacity is good, and the testator has the means of knowing the contents of the will, has been held to be the only evidence of assent necessary ; and for a full illustration and application of this principle, the court is referred to the cases of 'Warley vs. Warley, decided about 1826 or 1827, and Hobby vs; Bobo, decided about 1833 or 1834.
    In the case before us, I thought, and so said to the jury, that although the mind of Thomas Boyd was good, that yet, from his great age, his pain, and hardness of hearing, there ought to be proof of instructions, or that he read the will. Either, I thought, was sufficient. And on referring to Billinghurst vs. Vicket's, 1 Phill. 1.87, it will be fouhd, that proof of instructions is enough to establish a will, even where the capacity was doúbtfhl at the time of execution. If this was not so, the court would set aside the wills of testators, instead of deciding of the fact of executions Proof is adduced to a court and jury to satisfy them, that a paper propounded is or is not the will of the deceased. When it is proved that it was written according to his directions, that he executed it according to the provisions of the Acts of the Legislature, and that he was of sound mind, there is no rule of law which prevents these facts from having their full force, and the paper must be established as his will. For the question of assent on the part of the testator is one of fact merely, and may he safely trusted (where it properly belongs) to the jury.
    
    The jury found for the will, and the appellants move the Court of Appeals to set aside the verdict, on the accompanying grounds.
    The plaintiffs move for a new trial:
    1. Because his Honor refused to allow the name of Columhus Boyd to be struck out of the suggestion', for the purpose of examining him as a witness, upon his releasing his interest, and rejected his testimony.
    2. Because his Honor instructed the jury to find for the will, if they were satisfied the scribe, Veale, wrote it according to the instructions to him alone by Thomas Boyd, deceased, although they should be equally satisfied that the old man never read the will, nor heard it read, nor repeated the instructions after it was written, nor had possession of it.
    
      Gregg Sf Summer, for the heirs.
   Curia,per

Evans, J.

We are all*well satisfied with the' decision of the circuit judge on the first ground. No amendment should be allowed which will operate as a surprise or delay to the adverse party. To have suffered the appellants to strike out one of themselves from the record, in order to have him examined as a witness, would have operated in this case as a surprise on the appellee. He could not have been prepared to reply to testimony which he could not anticipate, and which was incompetent when the trial commenced.

The second ground presents the proposition, whether, if the jury believed, from the evidence, that the will was written by Veale, according to the directions of the testator, that was sufficient, and it was immaterial whether the testator read the will or heard it read. If the instruction was erroneous, then a new trial should be granted for misdirection on a point of law. We are, then, to enquire whether it was essential to the validity of Boyd’s will that he should have read it himself, or heard it read. Every legal proposition laid down by a judge in his charge to the jury, must be understood as made in reference to the facts of the case. What then were the facts 1 The deceased desired to die testate ; he sent for Veale to write his will; he was an aged man, but of sound mind, although at the time suffering much bodily pain. Veale says, the testator dictated the will, clause by clause, and he wrote down each clause according to the testator’s direction. The will was then signed and attested, and kept by Veale, by the request of Boyd, until after his death, which occurred ten months afterwards. There was no proof that the will was read to the testator; and for the purpose of this decision, it must be assumed that he did not read it himself; the judge having charged the jury that that was immaterial. The jury, under this charge, found for the will, and thereby have established the fact that the will was written by Veale conformably to the testator’s instructions. Is this sufficient in law to establish the will, or is it necessary to its validity, that after it was written, it should have been read over to the testator, or that he should have read it himself? To answer this, let us enquire what is a will % It is a declaration of intention in relation to a man’s estate, to take effect after his death, executed with legal solemnities. All the forms required by the statute law as to the mode of execution, have been complied with in this case ; and if the paper propounded to the ordinary be a true declaration of Boyd’s intentions, then it should be admitted to probate. In general, the solemn execution in the presence of witnesses, has been regarded as satisfactory evidence that the paper propounded as a will, was in conformity with the intentions and wishes of the testator. If, in addition, it be proved that he wrote it himself, or if after it was written by another, it wás read over and assented to, then we cannot doubt about.it. But suppose, after the instructions were reduced to-writing, the testator should sign without reading or hearing it read, and it were proved by a dozen undoubted witnesses, that the scribe wrote down the instructions exactly as the testator delivered them; is nqt this evidence entirely satisfactory to the mind, that the paper propounded is a true declaration of the testator’s wishes and intentions ? Judging from the analogy of other cases,’ and the reasonableness of the proposition, I should think such evidence* would be sufficient to establish the will, unless there be some rule of law which requires that the will should be read to or by the testator. Let us look into the authorities, arid' see if there be any such rule. In Sikes vs. Snarth, 2 Phill. 350, Snarth, the testator, sent for his solicitor, Walton,into his bed room, and gave him detailed instructions for making his will; Walton retired into another room, and immediately committed to writing the heads dr substance of the instructions, and then proceeded to draw üp a will from them. The testator was taken suddenly very ill, and died without having seen the will, and without having heard it read, or the instructions, after they were reduced to writing. The will was allowed.Sir John Nichol, in delivering his judgment, says, “ on the point of law,whether a paper can be pronounced for, which had never been seen by the deceased, or read over to him, I have no doubt.” “ This" principle' was recognized in Wood vs. Wood. It has been argued that these are here mere heads of instruction, committed to writing, and that neither will nor instructions have been read over to the deceased. I do not apprehend the law requires one or the other.” “ The doctrine of the court was fully laid down in Bury vs. Bury, where instructions were established, on satisfactory proof that they had been reduced to Writing,in the lifetime' Of the testator. In Box vs. Wetherby, the court said, reading over was only required to show that the paper was conformable to instructions.’*

In a subsequent part of the same case, the same learned judge says, “ I find a series of decisions from Gardner vs. Smith, in 1727, in which thé principle has been established that a paper not written in the presence of, nor read over to, or by, the testator, may yet be established, upon clear proof that it was written in his lifetime, and was drawn up conformable to his instructions.” There is nothing in Billinghurst vs. Vickers, 1 Phill. 172, opposed to this principle. In that case, the first part of the will was written by the testator himself. This was allowed. But there were tvvo clauses appended by Billinghurst. These added clauses appointed him executor, and gave him a legacy of £500, and a legacy of £400 to another. They two were the only persons present, and there was no proof of instructions or reading over, except the assertion of Billinghurst, who was clearly incompetent. These clauses were rejected, there being á total absence of proof that the testator intended so to dispose of his property. The same remarks apply to our own case of Tomkins vs. Tomkins. There was no proof of either reading over or instructions ; but I apprehend, if Tomkins, who wrote the will in that case, had testified as Veale did in this case, the result would have been very different.. The rule laid down in that case is, that if the capacity be doubtful, there must be proof of instructions or reading over. The whole current of decisions is to the same effect. In Black vs. Ellis, decided in Charleston, May, 1836, the same doctrine is to be found, and I have found no case in which it has been held, or even intimated, that where there was clear proof of instructions, reading over was necessary. They are both evidence of the fact, that the paper propounded is the true will or declaration of the testator’s intention; but either of them will suffice, if fully and clearly made out.

The motion is refused.

Gantt, Richardson, Earle, and Butler, JJ. concurred.  