
    *Boyd and Another v. Cook, Ex’or of Vass.
    May, 1831.
    (Absent Tucker, P. and Brooke, J.)
    Wills — Testator Blind — Validity—Case at Bar. — The will of a blind man shall be admitted, to probat and record, as a will of real as well as personal estate, if attested at his request in the same room with him, though it be not proved that the will was read to him in the presence of the attesting witnesses, or that it was ever read to him, provided it appears satisfactorily to the court, that he was acquainted with its contents, and intended to make the testamentary dispositions therein contained.
    Same-Probate Court — Province.—A court of probat occupies the place of a jury as to questions of fact, and its province is, like that of a iury, to draw all just inferences from the evidence.
    Same — Revocation—Belief as to Destruction. — A blind testator orders a will made by him to be destroyed, and believes it is destroyed accordingly, but it is not destroyed, and no act towards destruction done; this is not a revocation by destruction or cancellation, within the statute 1 Rev. Code, ch. 104. I 3. At least, a court of probat cannot consider this as amounting to arevocation.
    A writing purporting to be the last will and testament of Philip Vass deceased, was offered for probad in the county court of Halifax, by J. W. Cook, the executor therein named ; and the probat was contested by Alex. Boyd and John Shepperd. The county court, upon a hearing of the evidence on both sides, refused the probat. Cook appealed to the circuit court ; which reversed the .sentence of the county court, and ordered, in general terms, that the paper “should be recorded as the last will and testament of the decedentthat is, admitted the will to full probat, as a will of real as well as of personal estate. The circuit court refused to admit Some of the evidence offered by Boyd and Shepperd against the will ; to which they filed exceptions; and, at their instance, all the evidence heard by the court, was ordered to be stated on the record. They then applied to a judge of this court for a supersedeas to the sentence ; which was awarded.
    The following is a copy of the paper in question :
    “In the name of God amen. I Philip Vass of Halifax county, do make this my last will and testament, in manner *and form as followeth, viz : It is my desire, that all my debts be first paid. If any of my children should die without an heir or will, their estate hereafter devised or given shall return again to my estate, to be divided as shall be hereafter directed. If any of the legatees shall attempt to break this will, or shall enter a suit in law against the legatees, or any one of them, shall forfeit his or their estate hereafter given to them; the forfeited estate returned back to my estate, 1 o be divided as shall be hereafter directed. I give unto my daughter Mary Boyd, negro girl Lydia and her increase, to dispose of as she pleaseth : also I lend unto A. M. B. Rachel and her increase ; which negro and increase shall not be sold for no debt or debts of Alexander Boyd or his wife Mary Boyd, in no case whatever; the aforesaid negro Rachel and her increase is not to be removed out of the county of Halifax, without the consent of a majority of the legatees concerned : in either of these two cases a breach be made, a sale or removal, negro Rachel and her increase is forfeited, and return immediately into my estate, to be divided as shall hereafter be directed. Negro Rachel and her increase is lent unto Alexander Boyd and Mary Boyd his wife during their lives, with the above exceptions ; and at their death, to return into my estate, and tobe divided as shall be hereafter directed.
    I give unto my son James, negro Amy and her child Leatha and their increase, to him and his heirs forever. I give unto my daughter Sarah L. Vass, three negroes Lucinda, Harriet her daughter, and Amanda Melvina, with their increase, to her and her heirs forever, I give unto my daughter Anna Vass, three negroes, Raster, Eliza and Caroline, with their increase, to her and her heirs forever. I give unto my daughter Apphia Vass, three negroes Martha, Ealleand Marin Louisa, with their Increase, to her and her heirs forever. I give unto my son Philip E. Vass, Mary and her brother Jacob, with her increase, to him and his heirs forever. I give unto my grand daughter Mary Elizabeth Shepperd, negro girl Rose and her increase ; provided my grand daughter Mary *E, Shepperd dieth under age or without a child lawfully begotten, then negro Rose and her increase to be divided between her surviving brothers and sisters and their heirs forever. I lend unto my beloved wife Elizabeth Vass, during her widowhood, the land whereon I now live, and all the rest of my estate which I have not devised or given ; recommending to her particular care my dear daughter Elizabeth Sheppard and her children, during your life. And at the death of my dear wife, my land whereon I now live, to be sold by my executor, on a credit of four annual equal payments, security taken on the land for the payment thereof; Ihe one fourth of the sale of this land to be put out at interest, which interest is to support my daughter Elizabeth Shep-perd, and her children with schooling &c. and the principal at her death, to be equally divided between her children, and their heirs forever. It is also my desire, that my western land be sold, when there the indian right is extinguished, and my land surveyed, it be sold at with four equal annual payments, security taken on the land for the payment thereof: this land may be sold sooner than above mentioned, if it is thought best by the legatees. The money arising from the sale of the western land, three-fourths of the money arising from the sale of the land whereon I now live, with all the remainder of my estate not already given, to be equally divided by commissioners appointed by court, between my children James P. Vass, Sarah Vass, Anna Vass, Apphia Vass and Philip F. Vass, and their heirs forever. I appoint my beloved friend Jarrett W. Cook my executor to this will who is to receive a reasonable sum out of my estate for his services. In witness whereof I have hereunto set my hand and seal this I3th day of December 1816.
    ‘.‘Witness, Anderson Powell,
    “Moses Shearan.
    “Philip Vass, [seal].”
    The evidence for the will, was, in substance, as follows:
    1. The subscribing witness, Anderson Powell, was examined in open court, and testified, that he attested the *will, in the summer of the year 1817— that he went to the house of the decedent Mr. Vass; Moses Shearan was there ; he took a seat, and entered into conversation ; Mr. Vass said, he wished them to witness his will, and called to one of his daughters (the witness believed, it was Sarah) and directed her to bring his will, and she brought the paper now exhibited as his will. He asked the witness, if he had ever seen a blind man write his name; the witness answered he had not; he then told him, if he would hand him a pen with ink in it, he would shew him that a blind man could write his name. The witness handed him a pen : he placed the paper on a table before him, and asked the witness to put his hand at the proper place; which the witness did ; and the decedent wrote his name, and then acknowledged it to be his will, and requested the witness and Shearan to witness it, which they both did, immediately, in his presence ; that is, (as the witness explained himself) in the same room with him. Before the attestation of the will, the decedent told the witness, he had been “very near slipping off the other day without a willand then called them (the witnesses) as before stated. After the attestation, Mrs. Vass, his wife, came into the room, and remarked, that she thought he wished to have some alteration made in the will, and it was not worth while to have it witnessed before that was done : he answered, that he intended to have that alteration made, “but he expected brother Cook down in a few days, and he could then have it done.” The decedent was of sound mind and memory at the time the will was executed, and was a man of good understanding : but he was quite blind, and had been so ever since the witness’s first acquaintance with him, which was in 1809. The will was in the hand writing of the decedent’s daughter, Sarah E). Vass, a legatee mentioned in the will. It might have been read to the decedent in the presence of others, for aught the witness knew . but it was never read to him in his presence or hearing ; nor did the decedent mention, that it had been written in 1816, or say-who had written it, *or explain why his daughter Sarah, who had in fact: written it, could not also alter it.
    2. The other attesting witness, Moses-Shearan, was examined under a commission from the circuit court, and deposed,. That the paper in question was attested by him, he thought in the year 1816,. at the request of the decedent, who told him that it was his .will; and the witness saw him sign his name to it. The will itself was not written in the witness’s-presence. The witness had been acquainted with the decedent only one or two years : he thought him very precise and particular about matters of business : at the time the will was executed, he was in good health and cheerful, and of sound disposing mind and memory. After it was executed, he gave it to one of his daughters to put away. The will was not read to the decedent in the witness’s presence, nor had the witness ever heard it read. He did not recollect any conversation between the decedent and his wife, at the time of the execution of the will.
    3. Francis Ford, a resident of North Carolina, examined under a commission from-the circuit court, deposed, That he had been long and intimately acquainted with the decedent Mr. Vass, and had had many dealings with him; and he described him as very punctual, and exact in his dealings. He had been at the decedent’s house to see him, since he was blind, several times ; the last time was in March or April 1823, when the witness staid there with him five or six days, and there was a great deal of conversation between them concerning their respective family affairs, in the course of which, the decedent told him, that he had made his will: that he had not given Mr. Shepperd any of his property, but had, in his will, directed the land he lived on to be sold at the death of his wife, and one - fourth of the proceeds to be put out at interest, and Mrs. Shepperd was to draw the interest for the support of "herself and children as long as she lived, and at her death the money was to be divided among all her children : that he had given his grand daughter, Mr. Shepperd’s eldest daughter, one negro girl *on certain conditions, which the witness did not recollect: that he had given his daughter Mary Boyd one negro-girl and her increase, to do as she pleased with, and the other negroes which she then had and their increase, at the death of Mr. and Mrs. Boyd, were to be returned back to-his estate : that he had given his'sons, James and Philip, two slaves apiece, and his three daughters, Sally, Anna and Apphia, three slaves apiece : that he had made ample provision for his wife, if she should outlive him ; that she was to keep the land, and several of the best working hands, and all the stock, and household and kitchen furniture, as long as she lived : that he had traded his western lands for lots in Danville and a tract of land above Danville, and one below Halifax court house: that he had a notion of altering his will, and settling his son James’s property so that he could not spend it, for he wished his children to have the benefit of it: that his reason for not giving as much of his property to Mrs. Boyd as to some others of his children, was, that he did not think she would ever have children, and he did not wish her husband or any of his family to have, any of his property ; he wished his own children to have it: and that Mr. Sheppard had treated him and all his family coldly ; and he believed for no other reason than because he would not make him a right to some of his property, which was wha.t he never intended to do, and had so directed it in his will. As to that important provision of the will whereby the residue of the money arising from the sale of the land he lived on, with all the residuum of his estate, were bequeathed to be equally divided among his children, James, Sarah, Anna, Apphia and Philip, the witness did not state, that the decedent made any mention of it whatever.
    4. Eight witnesses, residents of North Carolina, deposed as to the general reputation of the deponent Eord, that they esteemed him, and he was generally esteemed, a man of integrity and veracity.
    *5. John Webb, also a resident of North Carolina, examined under a commission from the circuit court, deposed, That he was the brother of Mrs. Vass, the wife of the decedent, and that he visited the decedent and his family some years before his death ; and'while he was with him, the decedent told him how he intended to make his will, for the purpose of providing for his two daughters, Mrs. Boyd and Mrs. Shepperd —that the property he intended for his daughter, Mrs. Boyd, she atad her husband were to keep possession of as long as they both lived, and at their death it was to be returned to his estate ; and his reason for intending to do this, was, that he thought Mrs. Boyd would never have children, and he did not wish his property to fall into the hands of the Boyd family ; that what he intended to give Mrs. Shepperd, was to be in money to be put out at interest, and she was to draw the interest for the support of herself and children as long as she lived, and at her death the principal was to be divided among all her children. The witness farther deposed, that since Mr. Vass’s death, he had made a visit to his sister Mrs. Vass ; Mrs. Vass shewed him a paper, which she told him, was her husband’s will ; he read a part of it, but not being able to read it as distinctly as he wished, he desired it should be read to him ; it was accordingly read to him; and the bequests to Mrs. Boyd and Mrs. Shep-perd, therein conlained, were nearly such as the decedent had told the witness he intended to make to those two daughters, according to the deponent’s memory of the conversation : but the witness did not know, that the paper shewn to him was Mr. Vass’s will; or that its contents were truly read to him ; he believed it was correctly read. Being asked, how long it had been since he had the conversation with the deceased ? he answered, “he did not recollect.”
    In the deposition of this witness taken under a commission from the county court, his answer to the same question, was, that “he supposed it was before the will was made.”
    "'6. J. W. Cooke junior testified, That, in a conversation he had with the decedent, the date of which he did not certainly remember, but he thought it was in 1823, Mr. Vass told him, he had a will, but he was not well pleased with it, and he intended to go to Mr. Bruce or Mr. Medley [gentlemen who lived in the neighbour-hood] and have a will prepared, and in case he should not get there, that will was to stand; that when he was a young man, he did not keep a will, but since he had like to have dropped off in a fit of epilepsy, and after that “he had kept a will by him,” or “had one prepared.” The decedent said also, that he had given Mr. Shepperd’s oldest daughter a negro girl; the witness did not remember the name of this girl, but believed it was Betsey. The decedent mentioned to the witness his reasons for not giving Mr. Boyd or Mr. Shepperd any of his property: he said, his daughter Mrs. Boyd had no children, and he believed would never have any, and if he gave Mr. Boyd any thing, it would fall to the Boyd family; and he did not think Mr. Boyd capable of managing an estate: and as to Mr. Shepperd, the witness had often heard him say, that if he gave him any part of his estate, he was such a drunkard, he would spend it, or drink it up.
    7. D. C. Goode testified, That in a conversation between him and the decedent in August 1823, he made declarations of his intentions with respect to his daughters Mrs. Shepperd and Mrs. Bo3’d, to the same effect with those detailed by the other witnesses.
    The evidence against the will, was, in substance, as follows:
    1. Spencer Laws testified, That he had a conversation with the decedent, at his house,* in October 1820, in the course of which the decedent said that some of his children (without saying which, did not please him: the witness remarked to him, that he had a good deal of property to dispose of; the decedent replied that he had, and “that he had had a will, but had destroyed it.” And the witness then suggesting, that the laws of the country would make an equal distribution, *he said “they would, if a man could be reconciled to it.” The witness’s acquaintance with the decedent commenced in the spring preceding this conversation; he had been in his company some five or six times; they were on friendly terms, but there was no intimacy between them.
    2. Notley Jordan testified, That shortly after the death of a Mr. Bruce, in the latter part of 1824 or the first of 182S he went to see the decedent, to hire one of his slaves; when the decedent asked the witness if he had understood whether Mr. Bruce left a will or not? The witness told him, he understood he had, but it had been made fifteen or twenty years before. The decedent then said, “it was right that a man should keep a will by him, for he knew not what day or hour he was to die, but “that he himself had no will by him at that time, and intended sending for brother Cook in a few days, or sometime shortly, to write him a will;” which was all that passed about the will. According to the witness’s account, his acquaintance with the decedent was a slight one, and recentlj’ commenced.
    
      X. William Cabaniss testified, That a few days after the decedent’s death, the witness meeting with Mr. Cook, the executor, who had been to the house of the deceased, and was on his return from thence, he asked Mr. Cook, whether there was a will or not? Mr. Cook said, “there was no will; that the old lady had found a small piece of a will in the old man’s pocket; they supposed he had put it in his pocket not knowing what it was, where it had been worn out.” The witness supposed Mr. Cook said this, upon the information of Mrs. Vass.
    4. Halcomb Bailey testified, That the deponent Francis Ford was at the house of Mrs. Vass before his deposition was first taken under a commission from the county court: he came there on his way to Lynch-burg; he departed on a Sunday; returned to Mrs. Vass’s the thursday or friday following, and went from thence on Saturday, to the place where his deposition was taken.
    *The deposition of Ford, taken under the commission from the county court, was substantially the same with that taken under the commission from the circuit court.
    The bill of exceptions filed by Boyd and Shepperd, stated, that, at the hearing in the circuit court, Boyd and Shepperd offered in evidence the deposition of one Morgan ; the counsel for Cook objected to the reading of so much of it as related to declarations of Sarah E. Vass, the daughter of the decedent who wrote the will in question, and a legatee therein; and the court sustained the objection. They then offered to prove by a witness introduced for the purpose, that the same Sarah E. 'Vass admitted in the witness’s presence; that her father had directed her to destroy the paper produced in court as his will, and that he believed it was done: the counsel for Cook objected to the admission of this evidence also, and the court sustained the objection.
    Stanard, for the plaintiffs in error.
    I. The evidence rejected by the court, ought to have been heard, since the person whose declarations it was offered to prove, was a legatee named in the supposed will, and, in effect, a party to the controversy, who could not, have been compelled to give evidence against the will. King v. Woburn, •10 Fast. 39S; King v. ' Hardwick, 11 East. S78; Burton v. Scott, 3 Rand. 399. If this evidence had been admitted, and had established the fact, that the decedent had directed the paper in question to be destroyed, and believed it was destroyed, that would have amounted to a revocation. 3 Stark. Law of Ev. p. 1714, note 2, and the cases there cited.
    II. The execution of the will was not well proved. 1st, it was not well proved to have been duly attested as a will of real estate, according to the requisitions of the statute of wills: only one of the attesting witnesses, Anderson, says that he attested the paper in the decedent’s presence, meaning *in the same room with him: the other, Shearan, says it was attested by him at the decedent’s request, who told him it was his will, and that he saw him sign his name to it; but he does not say he attested it in the decedent’s presence; and if he subscribed his name as a witness, in another room, and at another time, such an attestation would be perfectly consistent with his deposition. This court has decided, that there must be two witnesses to every fact material to the due execution of the will. Burwell v. Corbin, 1 Rand. 131. But, 2ndly, this is the will of a blind man; and the attesting witnesses both say, expressly, that it was never, at anj time, read to him in their presence; and there is no proof by any witness, that it ever was read to him. According to Swinburne, a blind man “cannot make his testament in writing, unless the same be read before witnesses, and in their presence acknowledged by the testator for his last will. And, therefore, if a writing were delivered to the testator, and he not hearing the same read, acknowledged the same for his will, this were not sufficient; for it may be, that if he should hear the same, he would not own it.” Swinb. on Wills, part II, l XI, p. 166. And this was always regarded as the law of England, till the case of Eongchamp v. Fish, 2 New Rep. 41S, in which case it was held not to be necessary, that the will of a blind man should be read over to him -in the presence of the attesting witnesses; but it was agreed, that stronger evidence would be required in the case of a blind testator, than mere attestation of the signature; and the proof there was allowed to be sufficient, only on the ground that there was not the least reason to suspect fraud or unfair contrivance. In that case, the terms of the will had been dictated* by the testator to a disinterested person who wrote it, and who was afterwards one of the attesting witnesses; after it was written, it was read over to the testator, by his desire, in the presence of several; a fair copy was prepared; and the testator, two months af-terwards, had an alteration made, and perfectly understood what he was doing: neither ' was there the least- ^ground to suspect any thing unfair. . Though, therefore, according to that authority, it be unnecessary that the will of a blind testator should be read to him in the presence of the attesting witnesses to the execution; yet there must be proof by witnesses, that it was truly read to him before the execution, so as to ascertain that he was apprised of its contents at the time of execution; and there must be nothing suspicious in the transaction. Now here there is no positive proof bj’’ any witness, that the will was ever read to the decedent; and no proof of any kind, that it was ever truly and wholly read to him, before the execution, or indeed at any time. There is an effort to prove, that the decedent was apprised of the contents of the paper; and thence to infer that it must have been read to him. The principal evidence to this purpose is that of Ford, who details a conversation he had with the decedent in 1823, in which the latter recounted the dispositions of this will: which proves, at most, that he was apprised of its contents in 1823, not that he was apprised of them before the execution of it in the summer of 1817. This witness details the specific bequests of this will, as having been stated to him by the decedent in conversation, in minute and exact conformity with the contents of the paper itself; so minute and so exact, indeed, as to leave little doubt that he gathered so much of the contents of the will, from a recent perusal or accurate communication of them (for which, it appears by Bailey’s testimony, he had full opportunity) and not from the conversation with the decedent many years before ; but of the general and by far the most important provision, that which disposed of the residuum of the estate, even this witness does not depose that the decedent said one word; so that there is really no proof, that the decedent was acquainted with the whole of the contents of this paper, and, therefore, no ground to infer, that it had ever been truly and wholly read over to him. The evidence relied on to corrobate this evidence of Ford, is that of the witnesses Cook and Webb: but neither of them "says, that the decedent communicated to him any of his testamentary dispositions, made or intended, except those relating to his daughters Mrs. Boyd and Mrs. Shepperd; and as to Webb, though he says that the provisions of the will in respect to those two daughters, conform with the intentions of the decedent as declared to him in conversation, yet, according to his own account, there is no such conformity; for he deposes, that the decedent told him that what he intended to give Mrs. Shepperd, was to be in money to be put at interest for the support of herself and children as long as she lived, and at her death the principal to be divided among her children ; but the will makes no present provision for Mrs. Shepperd, but gives her the money in remainder after her mother’s death. There is too, a variance between the deposition of Webb taken for the circuit court, and that taken for the county court; in the one, he says he supposes his conversation with the decedent was before his will was made; in the other, that he cannot recollect when it occurred: a circumstance which shews the bias under which he was deposing: it was material to the interests of his sister Mrs. Vass, claiming under the will, that it might appear that the conversation occurred after the will was made. There are many very suspicious circumstances in the transaction. The singular provision in the beginning of the paper, imposing forfeiture on any legatee who should contest it, evinces such an anticipation of a contest as the testator could hardly have entertained, but natural enough to a penman interested and conscious of unfairness. The decedent was no wise in extremis; he had ample time and opportunity to get the aid of disinterested neighbours; yet, we are to believe, he chose to confide the writing of the will to a daughter and favoured legatee. This daughter to whom, the care of the paper was confided, held it back for some time after her father’s death, as was manifest from the evidence of Cabaniss: this again shews her consciousness of something wrong. The decedent was warned by a sudden and dangerous illness, of the prudence of keeping a- *will by him, and had this paper prepared (as its date shews) as early as December 1816: why then was it not executed till the summer of 1817? The attesting witnesses he selected, were not his friends, neighbours or intimates; and he communicated his testamentary dispositions or intentions, to none of his neighbours, but only, to residents of North Carolina, whom he was seldom in company with. He told one person in 1820, and another in 1824, lhat he had no will. And, according to the evidence of Anderson, (though the other witness Shearan remembers no such conversation, remarkable as it was) he told his wife, at the time of executing the paper, that he would wait till brother Cook came down, and then have his intended alteration made; which raises a suspicion, that the testator did not know that the paper he was executing, was one written by his daughter; for if he had trusted her to write his will, he surely would not have hesitated to trust her to write the alteration. The strongest case that can be made out from the evidence, is, that the decedent’s knowledge of the contents of this paper, is proved by one witness, namely, Ford: and the decedent’s knowledge of its contents being a fact certainly material to the due execution of it, either as a will of real or as a will of personal estate, the case of Burwell v. Corbin decides, that there must be two witnesses to that fact, to establish it as a will of real estate, according to the requisitions of the statute of wills; and Redford’s adm’r v. Peggy, 6 Rand. 316, decides, that two witnesses to the same all important fact are also requisite to prove the paper as a will of personal estate.
    Johnson and Leigh, for defendant
    in error. I. The evidence of the declarations of Sarah EJ. Vass, was properly rejected. She was not, in any sense, a party to the controversy: it does not appear, that she claimed under the will, or that it was her wish, or her interest, to have it established: there is nothing to warrant the assumption, that she is a favoured legatee; and so far from it appearing that '*she will get more as legatee under the will, than she would get as heir and distrib-utee in case of the intestacy of her father, it seems, on the contrary, that the decedent’s widow is the only person who can be benefited by establishing the will. It does not follow', that because a legacy is bequeathed to a daughter by her father’s will, she is therefore a party interested to establish it: that must depend, always, on the value of the legacy compared with her share of the whole estate in case of intestacy. But, if the evidence which the court rejected, ought to have been heard, this court may consider the rejected evidence as a part of the case, and decide upon the effect of it as if it had been received. The only object of it was to prove a revocation. But admitting that this testator directed this will to be destroyed, and believed it had been done, that was not destroying the will, or causing it to be done in his presence, within the words or policy of the statute of wills, 1 Rev. Code, ch. 104, § 3, p. 376. A destruction intended or ordered, without being- actually done, in any manner or degree, can only amount to a parol revocation, which the statute discountenances and renders void: there must be some act done, some act of destruction or towards destruction, done'.'animo revocandi, to constitute a revocation by destroying. Roberts on Wills, ch. 2, part 12. That writer advances an opinion of his own (for he cites no authority for it) that where an intended destruction of a will has been prevented by fraud or contrivance, affirmative parol proof of the animus revocandi, should be received, and effect given to the intention so established; that “even if such intention so endeavoured to be defeated, were manifested by no act of the testator, it would be consonant to the general maxim of courts of equity, to give effect to the intention, and to treat as perfected that which would have been perfected but for the fraud.” It would be difficult to reconcile this doctrine with the words or the policy of the provision of the statute touching revocations of written wills: but supposing it just, and that a court of equity , might inquire into such a fraud, put *in issue by pleadings there, it is no inquiry for a court of probat. However, the evidence rejected in this case, would, if heard, be of little or no weight. The witness Haws testifies, that the testator told him, in 1820, that he had had a will, and that he had destroyed it; so that if he did direct this will to be destroyed, and believed it was done, such direction and belief must have preceded the conversation with Haws; and yet it is clearly proved, that he declared, in 1823, that he had a will, and approved its provisions, and gave such an account of them, as manifests that the will he then had and approved, was the very will now in question.
    II. This paper is well proved as a will of real as well' as of personal estate. The evidence of Shearan who was examined by commissioners in the country, is not so explicit as that of Anderson who was examined in open court; but viewing the evidence of the two witnesses in connexion each with the other, the inference is irresistible, that Shearan as well as Anderson attested the will in the presence of the testator, that is, both at the same time, and in the room with him; and that Shearan meant to be so understood. Burwell v. Corbin came up upon a special verdict, and the court was straitly confined to the case as found, and could intend or infer nothing ; but this case comes before the court as a court of probat, whose province it is to deduce the just inferences of fact from the evidence: a distinction taken by this court itself, in Smith v. Jones, 6 Rand. 33. Besides, though the statute requires that the witnesses shall all attest in the testator’s presence, it prescribes no particular mode of proof of the fact of attestation in the presence, and leaves that fact to be proved, like any other fact, according to the common law rules of evidence and modes of,proof. Hence it is, that if all the attesting witnesses to a will be dead, their hand writing may be proved to establish it: hence too, if all the attesting witnesses deny their attestation, the fact of their attestation, and of due attestation in the testator’s presence, may be proved by other evidence ’’’'direct or circumstantial: and, upon the same principle, if one witness testify, that he and the other attesting witnesses duly attested in the testator’s presence, his single testimony proves the full execution of the will. Hongford v. Eyre, 1 P. Wms. 741; Roberts on Wills, ch. I. part XVI. ; 3 Stark. Haw of Ev. p. 1688, note 1, and 1692, 3, where all the cases are collected. If then, this was the will of a man not blind, the proof of full execution would be complete. Our statute of wills requires; that all wills of lands, if not wholly written by the testator himself, shall “be attested by two or more credible witnesses subscribing their names in his presence. ” Tate’s Dig. Wills, p. 519. But, as the statute does not prescribe the mode of proof of the fact of attestation in the presence, so neither does it define what shall constitute presence, or make any discrimination between the presence of testators who can read and those who are wholly illiterate, or of those who can see and those who are blind. In the case of the blind man, to say that an attestation of his will made, like the attestation in this case, immediately after his signing it, at his request, in the same room with him, is not such an attestation in his presence, as fulfils the requisitions of the statute, were in effect to deny the capacity of a blind man to make a will of lands, since he cannot possibly be any otherwise present at the attestation. But it is agreed, that a blind man is capable of making a will of lands; that is, that there may be an attestation in his presence. The requisitions of the statute, then, have been complied with here, in the only way in which it is possible to comply with them. But it is insisted, that in the case of a blind man’s will, there ought to be some direct proof by witnesses, that the very will executed by him and attested, had been read to him before the execution; that this is a supplement to the attestation of the witnesses in the testator’s presence required by the statute, essential to guard him against fraud and imposition; and that, though the case of Hongchamp v. Eish has decided, that the will need not be read to the blind testator in the presence of the attesting *witnesses, that case is no authority to dispense with proof by some witness or other, of the actual reading of the will to the testator. But the principle of that case, is, that an attestation of a blind man’s will in his presence, that is, in the same place with him, is a literal compliance with the statute; but some stronger evidence than the mere attestation shall be required; some sufficient proof to rebut any imputation of fraud; to shew, that the blind testator was not imposed upon. No particular kind of proof is indicated. The question is, whether the instrument is really the will of the blind man, who executed and published it as such? whether the assent of his mind was given to its provisions? The rules of evidence prescribed by the civil law, are of no authority: no statute prescribes any particular mode of proof touching any such question : ever3r kind of proof admitted by the common law, which is proper upon any other question of fact, is equally proper in regard to this; the proof may be by one witness as well as by many, by circumstantial as well as direct evidence. If it be proved, that the blind man declared that he had a will, and gave such an account of the testamentary dispositions thereby made, as to ascertain clearly that the paper in question is the will he said he had; this is enough to prove that he approved the provisions of this will; to rebut any imputation of fraud; to shew, that he has not been imposed upon, and made to execute a paper different from that which he had declared And intended for his will. And this is proved here, if the witness Ford is worthy of credit; and there is abundant teslimony to his character for integrity and veracity. It is objected to his evidence, in one and the same breath, that the minuteness and exactness with which he details the specific bequests of this will, as having been recounted to him by the testator in conversation, exposes him to the suspicion of having perused the will itself, shortly before he gave his deposition, and squared his evidence with its contents — and, that his evidence is defective in not ascribing any remark to the testator concerning the general and most important provision *of the will, namely, the disposition of the residuum of this estate. But the very defect imputed to the evidence, ought to exempt the witness from the suspicion as to the source from which he derived it. His evidence is corroborated by that of other witnesses: but his evidence alone is sufficient to establish the will. Lewis v. Lewis, 6 Serg. & Rawle, 489.
    
      
       Wiils — Attestation — Presence of Testator. — The principal case is cited on this question iu Sturdivant v. Birchett, lOGratt. 70. and note.
      
    
    
      
       Same — Probate Court — Province of. — On this question the principal case is cited in Clarke v. Bunna-vant. 10 Tbeigh 31. and note: Sturdivant v. Birchett, lOGratt. 89: Nock v. Nock, 10 Gratt. 112; Parramore V. Taylor, 11 Gratt. 238.
    
    
      
       Same — Revocation-Belief as to Destruction. — The principal case is cited in foot-note to Malone v. Hobbs, 1 Bob. 346. See monographic note on “Wills.”
    
    
      
       Ingraham’s Edition, Boston, 1828.
    
   CAJRR, J.

This is a very interesting controversy, as to presents, for the first time, to this court, the case of a blind man’s will offered for probat, and involves the question of the due execution of such a will under our statute. It was much to be wished, that the case had been heard before a full court: but as the judges present are not unanimous, the points will be considered as open, in any case which may hereafter occur.

Our statute enacts, that ! ‘every person aged twenty-one years or upwards, being of sound mind, and not a married woman, shall have power, by last will in writing, to devise his estate &c. so as such will be signed by the testator &c. and if not wholly written by himself &c. be attested by two or more credible witnesses subscribing their names in his presence.” The ceremonies required by this law, were not intended to restrain or abridge the power of testators, but to guard and protect them in the exercise of that power; and in that spirit (as I think) should the law be administered. The requisitions of the statute must be satisfied, or the will is not valid; but beyond this, the court seldom looks, unless there be fraud. That will vitiate a will however strict the compliance with the statute; but that must be proved; and, in the absence of proof, the court will not imagine that fraud may possibly have been prac-tised, and act upon that imagination. Such a course would convert the law which was meant as a shield, into a sword, and destroy twenty good and fair wills for one that was fraudulent. Nor ought courts, in their decisions on wills, to be at all influenced by the reflection, that the law has made a just distribution for *’such as die intestate : that law never meant to interfere with the right of every man to dispose, at his will and pleasure, of the property which it had been the labour of a life to acquire; a right dear to him, and held sacred wherever civilization has made progress, or law bears the semblance of science. Every one admits that a blind man may make a will; he is clearly within the statute; and yet it has provided no particular guards to protect him from imposition. A will signed by him, and attested by two witnesses in his presence, satisfies the statute. What is presence, the statute no where defines; and this is often a question of dispute in ordinary cases. In the case of a blind man, it certainly cannot mean, that the witnesses shall attest in his sight. The reason of the statute in requiring that the witnesses shall attest in the presence of the testator, is, not to assure them that he signed the will or knows its contents, but to protect him from having a forged will substituted for that he had signed. This danger is not obviated by the fullest proof that a blind man had heard a will read the day before, nor even by reading in the presence of the witnesses, for the will may have been changed in the first case, or read falsely in the last: yet all agree, that the reading the will in the presence of the attesting witnesses, in the case of a blind man, is sufficient; and the case of Longchamp v. Fish decides, that reading in the presence of the attesting witnesses is not necessary and that proof of a prior reading in the presence of the testator is sufficient. In the case of a man who can see, the signing his will in the presence of witnesses, or acknowledging it to them to be his will, as signed, although he be illiterate, is proof that he was acquainted with its contents: but, in the case of a blind man, although the forms of the statute be complied with, the jury, or the court of probat, (which, we have said, occupies the place of a jury,) will, “to rebut any imputation of fraud” (as justice Heath expresses it in Longchamp v. Fish) “require stronger evidence than the mere attestation of signature;” evidence to satisfy it, that the instrument is really *and bona fide his will, which it could not be, unless he knew the contents. But this is no requisition of the statute, nor is the court or jury confined to any particular mode of proof; any evidence which convinces their minds of the fact, is enough. For this purpose, reading the will over in the presence of witnesses, is agreed to be sufficient; but is this the only proof allowable? There is no such rule in the common law: and justice Heath, in the case just cited, very sensibly remarks, great inconvenience would arise from any rule, requiring the wills of blind men to be read over in the presence of attesting witnesses; nor would the mere reading it alone to them, be a certain guard against fraud, since it might be read falsely: and Cham-bre, J., adds, that testators are generally averse to have their intended dispositions of property made known in their families before their deaths; and blind men who stand so much in need of attention from their relatives, would, probably, be peculiarly averse to it. If there be no rule on this subject, and we are to be satisfied, as in other cases, by any circumstances and facts, which give us reasonable ground to conclude, that the testator knew the contents of the will; put the case of a blind man, proved to be shrewd, sensible, a punctual, precise man of business, in full possession of his mind; a man who had made his property, and was particularly anxious and careful in the safe and prudent disposition of it among his children; suppose such a man, while in good health, should send for two of his friends, tell them he wished them to attest his will, direct his daughter to bring it out, duly sign, and have it attested; and some six years after, this man should, in conversation with an old friend, detail with exactness most of the material provisions in that will, saying at the same time that it was his will: I ask, is there a mind which can resist the conclusion, that this man had dictated such a will to the scribe, and was well acquainted with its contents? And ought we, when this will is offered for probat, to reject it, because there is no proof that it was read over to the testator, and because, *in detailing the contents, there being ten clauses of bequest and devise, he spoke of nine, and did not mention the tenth? The case I have supposed is the case before the court. The will contains, 1. a bequest to his daughter Bcyd; 2. to his son James; 3. to his daughter Sarah; 4. to his daughter Ann ; S. to his daughter Apphia; 6. to his son Philip; 7. to his grand daughter Mary Shepperd; 8. the devise to his wife for life; 9. at her death, the land he lived on to be sold, and one fourth of the money put to interest; that interest for the use of his daughter Shep-perd, during her life, and at her death, the principal to be divided among her children : the 10th and last devise is, that the western land be sold, and the money, with the three fourths of the sale of-the home place, and the residue of his estate, he divided between his two sons and three single daughters. Of these ten clauses, the testator in his conversations with Ford, in 1823, the will being executed in 1817, gave a distinct account of the first nine, but said nothing about the tenth, or if he did, the witness had forgotten it. If he had so - forgotten, it would not be remarkable: it is much more remarkable, that he has remembered so much and so accurately as he has. This, indeed, was objected by the counsel, as going strongly to his credit; but, if he needed support, it is amply given him by eight witnesses, some of whom have known him thirty years, and all say he has the highest character for honesty, truth and correctness. We cannot, therefore, refuse him our belief; and giving it, how can we doubt that Vass knew the contents of this'will? But this is not all. Before he made his will, he told Webb, that he never meant to leave his son-in-law Shepperd any of his property, but would have money put out at interest, of which his daughter during her life might have the profits; and for his daughter Boyd, the property was to remain with her and her husband during their lives, and then to return: and the reason he gave for this, was, that she had no children, and would probably have none, and he did not wish his property to go to Boyd’s famil3r. These, we know, are *the provisions which he afterwards had inserted in the will. Again, in 1823, he told Cook he had a will; he was not satisfied with it; he intended to get it altered; but, if he did not, it should stand : he told him also several of the provisions of this will, namely*, those with respect to-his grand daughter, and his two married daughters; and he gave him his reasons for not giving either of his sons-in-law property; that Boyd had no children, and would have none probably, and that he did not think him capable of managing property; and as to Shepperd, that, if he gave him property, he was such a drunkard he would soon spend it, or drink it up. His language to Goode also, in 1823, was to the same effect. This evidence proves, beyond a question, to my mind, that the paper offered for probat, contains the deliberate and settled will of the testator in the disposition of his property ; more especially, his fixed determination never to give his sons-in-law any of his property; and they are the only persons resisting the probat.

It was objected in the argument, that, the witness Shearan, does not prove that he attested in the presence of the testator; and the case of Burwell v. Corbin was mentioned: but that was a case differing from this. There the court was acting on a special verdict, where every' thing must be directly found, and nothing inferred: here, the court of probat acts as a jury, and may draw from the evidence, every inference and conclusion which a jury could. Now there is no doubt on my mind, that the reasonable if not necessary inference from the evidence, is, that both witnesses attested the will at the same time, and both in the presence of the testator. No one can read Shearan’s evidence, without concluding that the whole transaction took, place at one time, in one room; and this even without the aid of the other witness, who swears directly, that both signed their attestation in the presence of the testator. Could I, as a juryman, possibly resist this evidence? Certainly not; and holding the same station as part of the court of probat, I find it equally conclusive.

*With respect to the evidence rejected, it does not seem to me worth while to consider whether it ought to have been received or not. For if received, it could have been relied on solely as proof of revocation. We know, that no directions given by a testator to another, to destroy his will, amounts to a revocation. The statute provides that no will “shall be revocable but by the testator destroying, cancelling or obliterating the same, or causing it to be done in his presence” &c. Mere parol directions given to a person to destroy the will, could never satisfy these requisitions of the statute; and to suffer them, would be to incur the very danger the statute meant to avoid. I think the sentence of the circuit court should be affirmed.

GREEN, J., concurred.

CABELE, J.

Blind men are embraced by the general words of the statute of wills, giving the power to make a will of lands. A blind man may, therefore, make such -a will. But the legislature has deemed it important to guard all persons against the substitution of surreptitious or fabricated wills. With this view, the statute has declared, that no will of lands, if not wholly written by the testator or testatrix, shall be valid, unless it be “attested by two or more witnesses subscribing their names in his or her presence. ” The policy of this provision extends to blind persons, not less than to others. In promoting this policy, the courts have been strict in their construction of the term “presence.” In reference to those who have their eyesight, an attestation, to be in the “presence,” must be in the same room with the testator, or where he can, if he will, see the witnesses sign their names. Thus, if the witnesses subscribe their names in a different room, but in a part of that room where he cannot see them, without a change of his own position, the paper cannot be established as a will of lands; and the construction would be the same, even if it should appear that the testator was in perfect health, in the *full possession of all his faculties, mental and corporeal, and within three feet of the spot where the witnesses subscribed their names ; and even although there should be the most positive and credible testimony that every thing was fairly done. This is required, in order that the testator may know, that the will which the witnesses attest, is the very will which he himself has signed. The term presence, in the statute, is as applicable to those who are blind, as it is to those who are exempt from that misfortune. But, as we cannot impart the power of vision to those who are blind, the term presence, when applied to them, must have an interpretation different from that which is given to it, when applied to those who can see. It must not, however, be divested of all its force. It must still be so construed as to promote the policy of the statute ; the suppression of surreptitious wills. This will be effected by requiring, in the case of a blind man, proof that the testator knew the contents of the will which he signed, and which the witnesses attested. I do not say, that it must necessarily appear that the will was read to him. That is one mode of proving that he knew its contents. But any other testimony that satisfies the mind of the same fact, will be sufficient.

The will, in this case, was not written by the testator, who was a blind man, but it was signed by him, and attested by subscribing witnesses. There is certainly no positive proof that it was read to him. What is the proof that he knew its contents? The most that can be said on this point, is, that it is proved that the testator declared that he had made a will, and that he had made certain dispositions of slaves to his children and grand children ; that what he gave to Mrs. Boyd (one of his daughters) was to return to his estate at her death; that he had made a comfortable provision for his wife, and that at her death, the land on which he then lived was to be sold; that one fourth of the money arising from the sale was to be put out at interest, for the benefit of his daughter Mrs. Shepperd during her *life, and at her death, to be divided among her children. And, when we look at the will offered for probat, we find in it certain provisions conforming with, or resembling the above declarations of the testator. But the will contains other provisions of much more importance than those alluded to. It contains the disposition of the remaining three fourths of the money arising from the sale of the land on which he lived; it directs the sale of his western lands, and the disposition of the money arising therefrom, and also of “all the remainder” of his estate; and it appoints J. W. Cook executor. As to all these important parts of the will, there is not a title of testimony that the testator had any knowledge of them whatever. What assurance have we, that these important dispositions were directed by the testator, or that he wished or intended them to constitute a part of his will? It is not sufficient to say, that no fraud appears to have been committed or intended. That argument would prove too much: it would make good a will signed by a person not blind, if attested by witnesses not in his presence: it would make good the will of a blind man, if signed by him, and attested by witnesses, although there be no proof that he was acquainted with any part of its contents. But this is a degree of confidence to which the law will not permit either of them to surrender himself, however willing he may be to become the victim.

I am not disposed to defeat wills by resorting to technical objections. But I can never assent to establish any paper as the will of a dead man, without proof that it is his will; or, in other words, without proof that the paper ,exhibited contains the dispositions which he intended to make, and none other. — I am therefore of opinion, that the sentence of the circuit court ought to-be reversed and that of the county court affirmed; but the majority of the judges approve the sentence of the circuit court, which is therefore to be affirmed.  