
    
      John Floyd et al. v. Washington Floyd.
    
    Undue influence, such as would destroy a will, or prevent its probate, must appear, by the proof, to have been sufficient to deprive the supposed testator of the free exercise of his own will.
    The exercise of undue influence, in preventing the revocation of a will, will not create an implied revocation. A will of real and personal estate, according to our Acts, cannot be revoked, but by an instrument in writing, executed with the same solemnities as the will itself — by obliteration, oi by burning, or destroying, (unless it be in the case of implied revocation by marriage, and the birth of issue,) — nor will the fraudulent prevention of revocation render a will void; foy at most to say so, would be only giving effect to that, in another form, which it is denied can have effect as a revocation.
    On an appeal from the decree of the Ordinary, deciding in favor of a will, the correct practice is, that the witnesses to the will be first examined' — that tire appellant then offer evidence to attack the will — and lastly, that the appellee give evidence in reply, and in support of the will. The appellant is not entitled to reply to the evidence last given, unless to discredit the appellee’s witnesses.
    
      Before O’Neall, J. at Newberry — April, Extra Term, 1848.
    REPORT OF THE CIRCUIT JUDGE.
    This was an appeal from the Ordinary, who, on an application to have the will of Charles Floyd, deceased, proved in solem form of law, had decided in favor of the vfill. The appellants presented various grounds of appeal, but, in substance, they only presented two objections: 1st. That the will was executed under undue influence. 2d. That the testator, by undue influence, was prevented from revoking the same.
    The testator was a bachelor, a good deal embarrassed : he had a brother, John, and three sisters, Mrs. Chandler, Mrs. Burton, and Mrs. Williams. He was, for several years, from ’42, in feeble health, but until within a year of his death he was generally able to ride about and attend to his own affairs. In the year of his death he was once, before his last illness, at the very gates of death. For some time, then, he was unable to attend to any thing. Afterwards, however, he rode about and attended to the transaction of some business.
    The appellee was his uncle. He is a man of very considerable wealth, and had aided the deceased in paying some pressing debts, and he gave him the assurance, while he had any means he should not suffer. To him the testator left his entire estate, and appointed him sole executor of his will.
    The will was dated the 11th June, 1845 ; he died 20th August,’47. It was executed at Newberry C. H. The testator-resided 10 or 12 miles from that place. He came to the-village on that day, unaccompanied by the appellee. Col. Fair drew his will according to his directions. He, Kenard and Ramage, witnessed the execution in all the forms required by law. They all agreed he was then of sound mind. At the same time he executed a power of attorney to the appel-lee, authorizing him to manage his affairs, and even to sell or mortgage, if necessary, parts of his estate. It, with the will, was sealed up and placed in Col. Fairs strong box. The execution and contents of the will were communicated by Col. Fair to the appellee, in January, 1846 ; but he enjoined him to keep it to himself, as it was a professional secret.— There was no other proof that the appellee had any knowledge of the power of attorney. It seemed to have been forgotten by the witness, until found with the will, when the seals were broken by the Ordinary, to whom Col. Fair delivered the package, after the death of Charles pfloyd, dec’d.
    I thought there was no evidence, whatever, of any kind, to induce a belief of undue influence at or before the execution of the will. It must, however, be stated, under the grounds of appeal, that Mrs. Stacey Chandler, the wife of Israel Chandler, a sister of the deceased, with her husband, released her interest in the estate of the deceased to Henry Burton, one of the appellants, and was examined on various matters. She proved that in a conversation, between her and the appellee, he had said to her that !i Susan (Mrs. Burton) ought not to expect any thing from her brother: her husband, Henry Burton, had acted so badly towards him, in refusing to have his property, or to be the executor of his will. Charles, he said, complained of that to him, and was so much grieved about it that he told him there was a man who would take his property, and act on his will.”
    Joseph Davenport proved that the day after the burial of Charles Floyd, the appellee said “he did not know whether there was a will or not.” He, (the appellee,) said, on one occasion, the deceased called upon him at his gate, and he let him have some money. He then told him, he said, if he died or went away, he would find papers in Fair’s office which would tell him what to do.
    Noah Harman said he became acquainted with Charles Floyd in ’46. He (Charles) said the appellee was attending to his business. In the course of a conversation with the appellee, before Charles Floyd’s death, he (the appellee) told him that “ Charles came to him, and told him he expected that Burton and among them, would break him up. He said he told him he need not be afraid, he would help him as long as he had any money.”
    There seemed to be no doubt that the appellee frequently acted for Charles Floyd, as, for example, in the sale of his brother’s property; but his act in that behalf, was specially confirmed to the sheriff by the said Charles. So, too, he advanced sums of money for Charles. On one occasion he paid a large judgment, and took an assignment of it. So also he managed his plantation for him, especially the '’year he died. But there was also no doubt that the testator attended to his own affairs up to a very short time before his death, as in the payment of debts, providing necessaries for himself and family.
    The main question, in the case, was whether the testator, by the undue influence of the appellee, was prevented from revoking his will. On this question was the main body of the evidence. I shall present, in as brief a way as I can, the facts and proof which seem to me to be essential to its correct understanding. In the first place, I regarded it as very important to ascertain the state of his feeling towards his brothers and sisters, to the period of his death.
    As to Henry Burton, the husband of his 'sister, Susan, it appeared that he, the testator, was, for several years, exceedingly hostile ; and that feeling (if Mrs. Gray was to be believed, in opposition to Mrs. Chandler, who had stated that he wished to be reconciled to his sisters,) was extended to his sister, Mrs. Burton. For she proved, during one of Charles’s attacks, (his first bad spell, April, ’47,) Mrs. Burton was in the act of giving him drink, when Mrs. Chandler told her to “ let him alone, he did not wish to have any thing to do with her — that he had told her (Mrs. Chandler) that he had sent word to Mrs. Burton and Mrs. Williams, his youngest sister, that he was sick — if they would not come for that, he should send no more negroes and papers for them.”
    As to Mrs. Williams, (his youngest sister, Elizabeth,) he seemed to have been much displeased with her marriage.— He said to Drayton Waldrop that he “ sooner would have seen her buried face foremost, or married to his negro man, Ephraim,” than the man to whom she was married. She and her husband, just before his death, had filed a bill in equity against him, to account for his guardianship, and in July preceding his death, a decree had been obtained against him for a large sum, something over $4,000. To his sister, Mrs. Chandler, however, as she proved, he expressed his desire to be reconciled to his sisters. He told her she could not tell how much good it had done him to see his youngest sister, Elizabeth, (Mrs. Williams,) who had visited him. He told her he intended to give her four negroes, a woman and children, whom his mother had enjoined him to give to her, if he died childless.
    As to Mrs. Chandler, who was not a party to this appeal, and who was examined as a witness, it was manifest he ought to have had a very great affection. She had nursed and attended on him during his spells of sickness, more like a mother than a sister. She proved that he had again and again declared his intention to provide for her. But it appeared from other proof, if believed, that he had weighty, and perhaps insurmountable objections to giving her any part of his ( slave property. He said to Drayton Waldrop, as he proved, that “he (Charles) was mean enough to negroes, but that Chandler and his wife were ten times meaner — that he knew of them kicking little negroes out of the door, which was high from the ground — that he had also known of Chandler setting his dogs on little children, who' could not get out of the way, tearing their clothes off them, and their skin.” To him, Drayton Waldrop, he (Charles Floyd) declared that “ they should never have any of his negroes.” This he said to him the middle of June. The same declarations were, in substance, also proved by Mr. Golding.
    To Noah Harman he stated that “some years ago he Avas at mill at Chandler’s, he had something given to him there, which he took to be ratsbane. He said if he had not met with speedy relief, he must have died.” The witness said he did not afterwards go to Chandler’s mill.
    His brother, John, is a man of very weak understanding; he is not fit to manage his own affairs. When he Avas about failing, he confessed a large judgment, Avhich I thought, from the proof, was done to protect his (John Floyd’s) property from sale — or perhaps, more properly speaking, to secure the use of part of it to John. Under that judgment Charles Floyd bought some of his property. He permitted him to have the service of two of the slaves. . He lived on his, Charles Floyd’s land, where he, Charles, supported him. He again and again expressed his desire to provide for John.
    Notwithstanding his mental weakness, John seemed tobe a man of great violence of passion. He threatened Charles more than once Avith cutting his throat; and his outrageous abuse of him, on the Wednesday before his death, likely produced his death sooner than it might otherwise have occurred.
    It was next inquired into, what did the appellee do to prevent Charles Floyd from revoking his will; and did he prevent him ?
    On the 26th of April, ’47, when he was supposed to be in dying circumstances, Jesse Moats visited him at his request. He told him, on that occasion, that his affairs were not to his mind — that he wanted him to take titles, for John, in the Griffin land. This the Avitness declined to do. He told him also, he wished to give some negroes to Mrs. Chandler. He told him his affairs Avere then so arranged that if he died they would get nothing. In the course of the night he lay down on a bed, in an adjoining room, but through the door of which he could see Charles’s bed. He said he was awak-ed by hearing Charles speaking louder and plainer than he ever expected to hear him speak again. That he was talking to the appellee, who had been there in the evening and gone home, but had returned, as the witness supposed, after jje ¿r0ppe¿ to sleep. He said he heard Charles say “ he wished to alter his will the appellee told him “ it and Fair should be there by sunrise, and then he could make any alteration he pleased.” At this moment, he said he heard the inquiry made, as he thought by the appellee, “Where is uncle Jesse ?” The reply was, “ in the next room.” The door was drawn to, and he heard or saw no more. Washington Floyd did not come to Charles Floyd’s Until the next day in the evening: he then made a settlement between the witness and the testator. Charles was, at that time of the day, incapable of doing any thing.
    Col. Fair was not there at all. Mrs. Chandler proved that about the time he was getting up out of this spell, she was preparing to take home with her a negro girl, whom she alleged her brother intended as a nurse for her child, and whom, she said, he had given to her. This, she said, was prevented by the appellee, who, she said, toid her brother “ it must not be, every thing must remain as before, or he would not do any thing more for him.” The Sunday after Equity Court, at Newberry, (July, 1847,) she said her brother was -much dissatisfied about his will; he said that he wanted her and John to have his property; that when he made his will he thought nobody cared for him, but now he had found that she and John did care for him, by the attention they had bestowed on him. On that or some other occasion, she said, she overheard a conversation between the deceased and the appellee. In that conversation, she said, Charles said “ he wanted to alter the will; that the appellee told him every thing must remain as heretofore, or he would quit him.” He (the appellee) told him, (the deceased,) however, at last, that as soon as he got well enough he could go down to the Court House and alter it there. He persuaded him, she said, he was better. After a little, she said, the appellee came to her and told her to encourage Charles in the belief he was better. She said “ she could not do it, he was worse ;” he said “ he knew it — he (Charles) could not live.” He told her to “ give him his toddy freely, and he would soon give up all his discontents.” She told him “ the doctors had advised against it.” He told her “it was no odds — he could not live any how — let him have what he wanted.” Major Is. Chandler, the husband of the last witness, proved that when he went up, on Monday, the 27th April, Charles and the appellee were talking by themselves — when he stepped in he heard deceased say to the appellee, “ you have not done as you ought to have done.” He said he then went out into the piazza. Jesse Moats, he said, was there when he came there. After some time, he said, the appellee came out, said he did not feel well, that he had been up all the night before — Jesse Moats, he said, had been there trying to get Charles to put the Griffin land in his hands for John. That he had better mind what he was about. He said Charles “ wished to alter his will — that he, the appellee, was interested, and he should not.” Eight or ten days before he died this same witness said he heard the testator, in the presence of the appellee, say he wanted to send for John Davenport and Mason Young. The appellee told him Young was at the springs: he theft said John would do to let people know what he wanted done. He, J. Davenport, was not sent for. The Sunday before he died, this witness said, Charles wished to go home with him, as it would be more handy for his wife to nurse him. He said the appellee was unwilling — ■“ declared he should not go —he would be too nigh the Court House, and might get thé papers altered.” Charles Scott proved that after he got better of his first bad spell, in April, he, the appellee, said if he had died “ John would have been in a horrible fix.” That “ as soon as he got up, he would do something good for him.”— The witness asked if the appellee would not do it. He said he might do something, but not so much as he, the testator, wanted.
    
    It was alleged that Moats, Mrs. Chandler, and Major Chandler, were mistaken in their testimony; many contradictions in Mrs. Chandler’s and Major Chandler’s testimony were proved. So too it was pretty clearly proved, I thought, that Mr. Moats was mistaken in supposing that the appellee was at the deceased’s after he lay down; but their credit was fully and fairly submitted to the jury, and therefore the testimony on that matter need not be more fully reported.
    On the 26th of May and 15th of June, 1847, Charles Floyd, the deceased, was at Newberry Court House, and on each of those days Col. Fair was at home and in his office.
    The jury were instructed, 1st. as to undue influence : that to be such as would destroy a will, or prevent its probate, it must appear by the proof to be such as deprived the supposed testator of the free exercise of his own xoill! Where a man was in common health and possessed of a sound mind, in general, I thought such a thing as undue influence could hardly be said to exist. There might, however, be some extraordinary cases, where it might be found. Where one was of weak mind or of sick habits, then in such cases it might be, that a strong mind, acting upon the one thus weak or sick, might lead him to make a will not the expression of his own wishes, but of him who had thus acted upon him, and then the undue influence contemplated by the law would set aside the will. So too, I told them, it might be possible for a man to be in such distressed pecuniary circumstances, as to place him entirely in the power of his creditor, and then if such power was exercised to force him to make a will against his wishes, it might be that it would be enough to _ destroy it. Persuasion, acts of kindness, or any thing of that ' kind, were not undue influence. I did say to the jury, in this connection, if a man were embarrassed and another was to propose to him to pay his debts if he would make a will in his favor, and the will was accordingly made, that that would not of itself be evidence of undue influence. Such a proposition, and such a result from it,-was however far from being creditable, or deserving encouragement. I told the jury, very plainly, I thought there was no evidence of undue influence in obtaining the execution of the will. I, however, placed before them all the facts, and told them if they made out a case of undue influence, that then they might find against the will. I did, in commenting on Mrs. Chandler’s title to credit, say to the jury, that notwithstanding the release executed by her and her husband to Burton, if the will was set aside, and she survived her husband, she might be entitled to her share of her brother’s estate; but this remark, right or wrong, could not have prejudiced the appellants,, for I told the jury that, in this case, she was competent, and must be believed, unless they thought she was contradicted, and thus her credit destroyed. But even in that view I told the jury I thought that at the most, all that could be said, was, that she had forgotten or been mistaken in some of the facts denied or stated by her. As to the power of attorney, there was no proof of delivery, further than it was signed, sealed and locked up, in Col. Fair’s strong box, under an envelop, sealed and not broken, until after the testator’s death. I thought this no delivery : but I did not take the matter from the jury. They had it and all the facts, shewing that the appellee acted for the deceased, before them, on the question, how far he was the agent of the deceased. On the question of preventing the revocation, by undue influence, I laid , before the jury all the' facts: but told them that I thought that they did not make out such a case as would revoke a will, which, in general, was irrevocable, except by the execution of another will or codicil, or by destroying or obliterating the will, by the testator or by some one in his presence, and by his direction and consent. I, however, told the jury there might be extraordinary cases, such as .duress, fraud and false representations, of destroying or obliterating, which the testator directed to be done, but which was not done, which might have the effect of preventing a will from being proved, as being not in law the will of the party. But, in this case, I thought there was nothing which could have that effect.
    I made no special ruling about the course in which the evidence was to be given. I was first asked, by Mr. Fair, how the case should be begun. I told him the witnesses to the will must be first examined, and then the proof of the appellants would be heard. In the course of Mr. Pope’s ex-. amination of the witnesses, for the appellants, he asked me if he should go through with his proof, or whether he would have the right of reply to the appellee’s proof. I said to him I thought he had better go through ; that I did not think he would be entitled to reply to the appellee’s proof unless it was to discredit his witnesses. He acquiesced, as I supposed, without making any point about it. Indeed, I supposed he and Mr. Fair both asked the questions they did more as matter of advice than any assertion of right. Mr. Pope went on and exhausted his proof on the part of the appellants. The appellees were then heard, and then Mr. Pope claimed the right to examine witnesses to contradict the appellee’s witnesses : he was allowed to do so, without objection.
    The jury found for the will. The appellants appealed, on the accompanying grounds:
    1st. That the supposed testator, Charles Floyd, junior, being in ill health, and being very much embarrassed in his pecuniary circumstances, and apprehensive of being broken up by his creditors, was induced to make the will, giving his whole estate to the defendant, by promises, on the part of the defendant, to afford him pecuniary aid; and his Honor erred in not instructing the jury that they might, by law, set the will aside for fraud or undue influence, if said facts, under the circumstances of the case, in their judgment constituted fraud or undue influence.
    2d. That his Honor erred in instructing the jury that the promise to afford pecuniary assistance to the testator, under the circumstances indicated in the first ground, could not, in law, affect the validity of the will.
    3d. That his Honor erred in instructing the jury, that should the plaintiffs succeed in setting the will aside, Mrs.
    Chandler would be entitled, notwithstanding the deed of assignment by Chandler and wife, to recover her distributive share of the estate, if Mr. Chandler should die before ,the same should be distributed.
    4th. That his Honor erred in instructing the jury that the power of attorney, from Charles Floyd to Washington Floyd, was not delivered: whereas it is submitted, that the proof was sufficient at least to carry the question to the jury.
    5th. That his Honor erred in instructing the jury, that the proof offered to shew that the defendant hindered and prevented the testator from revoking, altering and destroying the will by fraud and undue influence, was not sufficient, in law, to affect the validity of the will.
    6th. That his Honor erred in charging the jury that a will, duly executed, could not, according to law, be set aside for fraud or undue influence practised and exerted to hinder or prevent the testator from altering, revoking or destroying the £ame>
    Cheves, 46. l Rich. 84.
    7th. That the testator was in ill health, and was greatly embarrassed, and was apprehensive of being broken up by his creditors. The defendant procured him to make the will and power of attorney, by promises to afford him pecuniary aid. And the defendant being his agent, having the control of his property, with authority to pay his debts, and to sell or mortgage his whole estate for the purpose, and having paid a judgment against him, for a large amount, and procured the same to be assigned to himself; by these means and other Circumstances had the power to exercise, and did exercise, great control and influence over the testator; and the defendant, availing himself of this confidential relationship, and of these means of influence and control, hindered and prevented the testator from revoking and destroying the will, by various acts of fraud and undue influence, proved by ‘Jesse Moats, Mrs. Chandler, Israel Chandler and other witnesses. And his Honor ought to have submitted it to the jury to determine, upon the evidence, whether the will ought not to be set aside for fraud and undue influence.
    8th. That his Honor erred in ruling that the correct practice, in cases of this sort, is:
    1st. For the defendant to introduce the subscribing witnesses to the will.
    2d. For the plaintiffs to offer evidence to attack the will; and, lastly, for the defendant to give evidence to support the will and reply to the evidence on the part of the plaintiff: whereas it is submitted, that the plaintiffs ought then to be allowed to give evidence in reply to the evidence last given by the defendant.
    9th. Because the verdict is contrary to law and the evidence.
    
      Pope, for the motion.
    Perry, contra.
   O’Nuall, J.

delivered the opinion of the Court,

This case maybe considered under three heads: 1. Undue influence in the execution of the will. 2. Undue influence in preventing the revocation. 3. Fraud and other circumstances rendering the will void.

1. The doctrine of undue influence, as stated by the Judge below, in his charge to the jury, meets with the approbation of this Court. The cases of Farr v. Thomson, and O’Neall, executor, v. Farr, are full and clear statements of the rules by which cases of this kind are to be regulated. In Farr v. Thomson, our late brother Earle, with his accustomed clearness and precision, stated the result of his examination of that which constituted such an exemption from undue influence as to free his will from that objection, to be, that the party “ must be free, and under no compulsion from such threat or v violence as may be reasonably supposed to move a constant man.” I am very much inclined to agree with him in saying, that this whole doctrine of undue influence is an innovation of our own. Unquestionably such a thing as avoiding a will, executed by a sane man, with the solemnities required by the Statute of Frauds, was never heard of in England, unless fraud or imposition was fully and clearly made out, A testament was a much slighter thing, and stood upon no such strongly fortified grounds, as a will executed under the Statute of Frauds: and to such a disposition of goods, the rules of the civil law let in a multitude of objections, which in no sort applied to the devise. Still, I have no where found such a substantive head as undue influence.— When it amounts to putting in fear or fraud, then it might have such an eifect, but never otherwise. In Williams on Executors, 34, it is said very justly, — “ the influence to vitiate an act must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment ; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted; that it was done merely for the sake of peace; so that the motive was tantamount to force and fear.” How a man of sana mens in sano corpore, can.be the subject of undue influence, so as to avoid his acts, I never have been able to understand. He may have unreasonable likes and dislikes, he may act from false reasoning, he may act unjustly, and even cruelly towards his family, in the disposition of his estate, still his will, when legally expressed, must be supported. When, however, it can be shewn that he is a man of weak capacity, or laboring under sickness, rendering him incapable of seeing and understanding as he would do if well, then it may well be that one having influence over him, may, by false statements, or by encouraging enmities against his kindred, lead him to make a will, which is, like its origin, false, and therefore originating in fraud, must be void.

Swinb. 887.

Swinb. 888 & 889.

But even in such a case of weakness, “ it is not unlawful” to lead such a mind, by honest intercessions, or modest persuasions, to make a will.” If, however, the will of such an one be procured by fair and flattering false speeches, or he be in the power of another, and to increase his comfort, or insure his safety, in health or property; or if it be the result of great importunity addressed to such weakness, — in these and similar cases, it would be avoided. In this case the testator was a man of weak infirm health, but up to the period of the execution of his will, he was perfectly able to attend i to his own afFairs. There is not the slightest evidence of any persuasion or influence, exercised by the defendant over him. The testator prepared his will by the aid of counsel, and executed it in the presence of gentlemen, who were far, very far from giving any sort of encouragement to undue influence. Up to that time, there is no reason to believe that the defendant had paid a dollar for him: nor does it appear that he made any promise to advance money to cover his wants. I have little doubt, from the proof, that the testator was displeased with his youngest sister’s marriage, that Henry Burton, the husband of his second sister, had seriously offended him, that he heard Chandler, the husband of his eldest sister, was insolvent, and that their cruelty to slaves was such, he was unwilling to give them any, and that he believed his unfortunate demented brother John was incapable of managing his own affairs; and that these things induced him to make the will which he did. If this be so, there is no ground to say the will propounded is not his.

Columbia, May, 1848. Floyd v. Floyd.

33 Eng. Com, L. Rep, 57.

2. The next matter to be considered, is that of undue in-, fluence in preventing the revocation, and thus creating, (if true,) as the parties suppose, an implied revocation. Here again it might be enough to say, that after the supposed interference or influence to prevent the revocation, the testator had the opportunity to revoke his will, and yet did not; and this, according to iSwinb. 991, destroys the conclusion, which might, without it, have been drawn from the influence exercised. For the testator, after the time proved by Jesse Moats, Mrs. Chandler, and Major Chandler, when, as they allege, the appellee exercised a controlling influence to prevent the revocation of the will, was twice at Newberry Court House, and Col. Fair, in whose possession the will was, was at both of those dimes, at home.

But a will executed according to our Acts of ’89 and ’24, cannot be thus revoked. They require in real and personal estate, that a will can only be revoked in three ways : 1st. By an instrument in writing, executed with the same solemnities as the will itself. 2d. By obliteration. 3d. By burning or destroying. The case of Doe on the demise of Reed v. Harris, was a case of freehold devised to the defendant, claimed by the heir. It appeared that the testator intending to revoke the will, threw it, enclosed- in an envelope, on the fire; the|devisee standing by snatched it off; the envelope was only slightly burned, the will was untouched; the de-visee secreted it from him, and afterwards induced him to believe that she had burned it herself. It was held by Den-man, Patterson, Williams, and Coleridge, of the King’s bench, that this was no revocation within the Statute of Frauds, the provision of which, in that respect, is identical with our Acts of ’89 and ’24. Another case between the same parties, on the same will, for copy-hold lands, was heard in the Exchequer Chamber before Denman, Littledole, Williams, and Coleridge, and they held that as copy-hold lands were not within the Statute, the will must be judged of as if the Statute had not been passed. In such case,” said Lord Denman, “ the law would have required clear evidence of a positive declaration of the intent to revoke, at the time such declaration was made, or some act done with the intent thereby to revoke ; and the jury would have had to determine whether, in fact, such declaration was made or act done.” Taking these two cases together, it is clear, when the law is as under our Acts, in relation to real and personal property, that there can be a revocation in no other mode than that pointed out by the law, unless it be in the case of implied revocation by marriage and birth of issue, which was considered well settled before either of our Acts were passed.

3. This makes it necessary to look at the third inquiry, — were there such facts proved, in this case, as shewed that this will was prevented from being revoked by fraud, and being inoperative, until the testator’s death, it is therefore to be regarded as infected by fraud, and therefore void ? I am not prepared to say, that even a fraudulent prevention of revocation would set aside the will. For, at most, to say so, would be only giving eifect to that, in another form, which it is denied can have effect as a revocation. But assuming that it might have such an effect, in this case there is no pretence to say that any such fraud existed. It most abundantly appears that the testator, for very good reasons, might have wished to place his property in other hands than his heirs: his discontents with his will have been mostly proved by Mrs. Chandler and her husband — his statements to the former may all be very well accounted for in his desire to conciliate her, and his belief that the appellee would carry out his wishes as to her; — as to the proof of Major Chandler, it may be remarked that it is hardly likely that a sensible man, as the appellee is represented to be, would have made such statements as he proved, to the very man who would use them against him. As to Jesse Moats’s proof, there was great reason to believe he was mistaken. For there certainly was as strong proof of an alibi as ever I heard. But put all they have proved together as true, and it only makes this case, that in April, ’47, the testator wished to alter his will, that the appellee promised that he should have that opportunity'the next day, by bringing the will and Col. Fair, in whose possession it was, to his house, that the appel-lee failed to comply with this promise, — that again he told him every thing must remain as it was, or he (the appellee) would quit him, and that he (the appellee) was interested, and would prevent him, if he could, from altering his will. , Stating the testimony thus, makes a strong prima facie shewing. Still, out of it, no inference can certainly arise that the testator was prevented against his will from revoking. He knew where his will was — he had friends constantly about him — he had means by which he could have had any thing dono which he desired. If he had simply whispered in the ear of Major Chandler or Mrs. Chandler, that he wished to alter his will, and that he needed a lawyer’s aid for that purpose, one would have been at his bed side in less than six hours. There is little doubt, that in his sick hours, as he was approaching, as he supposed, the gates of death, and as he was recovering, that he thought and spoke of altering his will: there is very little doubt thát the appel-lee may then have desired him to defer it to a more suitable occasion, and that he might even have argued with him against it. Still there is no evidence of fraud in all this. For the appellee might legally reason with him, and even persuade him not to alter his will. The testator, too, had months to reflect upon it; and opportunities and means to revoke his will. He did not do so, and we are therefore bound to say that the will propounded is not affected by fraud.

The various other grounds of appeal need no other answer than such as are given in the report.

The motion is dismissed.

Richardson, J. Evans, J. Frost, J. and Withers, J. concurred.  