
    C. B. Verdier, Ex’x, vs. A. Verdier, et al.
    In charging a jury the judge may give them Ms opinion upon a question of fact.
    Because the judge in charging the jury confounded the names of some of the ■witnesses, held to he no ground for a new trial.
    Of the three subscribing witnesses to a will, near thirty years old, two were dead and their signatures were proyed. The surviving witness recognized his signature, but had no recollection of the transaction: — Held, that the will was sufficiently proved.
    A testator, when executing his will, need not make formal publication of it, nor even declare the nature of the instrument.
    A great change in the pecuniary circumstances of the testator, and some change in his social relations and moral duties, held not to amount to an implied revocation of the will.
    BEFORE MUNRO, J., AT COLLETON, SPRING TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an appeal from the Ordinary of Colleton district, admitting to probate the last will and testament of the late Simeon Yerdier. The paper propounded as the will purports to bear date on the 5th of September, 1825, and the testator departed this life on the 21st day of June, 1853. The will was admitted to probate in common form on the 19th day of July, 1853, and the decree of the Ordinary admitting it to probate in solemn form bears date the 27th day of March, 1854.
    “ The entire will is in testator’s handwriting, and on the back of itis the following memorandum, also in his hand-writing: “ S. Yerdier’s will, not to be opened till after death, or otherwise null and void.” There is also indorsed on the back of it the following certificate : “ This will was opened at the house of Mrs. Yerdier, this 18th July, 1854, in presence of us — S. P. Deveaux, A. Yerdier, James S. Glover.” At the time this will was executed, the entire estate of the testator, real' and personal, was estimated at between five and ten thousand dollars, and at the time of his death its value was estimated at betwen three and five hundred thousand dollars.
    “ The testator devised and bequeathed to his wife the whole of his real and personal estate, except the sum of three thousand dollars, which he bequeathed to the eldest son of his next brother if alive, if not, then to the eldest son of his next brother, but if not alive, then to the eldest child of his sister, but in case either his father or mother were living, the said sum to them during their natural lives, then to revert to those already specified. He appointed his brother-in-law, James Boman, executor, and his wife, executrix; the former of whom I think died previous to the testator, so that his widow alone qualified as executrix and is now the plaintiff in this proceeding. The surviving relatives of the testator consist of a brother, A. Yerdier, who resides in France, and two nephews, Augustus Yerdier, a son of the former, and J. A. Fraysse, son of a deceased sister, both of whom were brought from France to this country several years ago by the testator, and who rendered him' important service in the management of his affairs, and towards both of whom, and especially to the former, he manifested a strong attachment. These last mentioned parties are now the appellants, and appealed from the decree of the Ordinary on the following grounds :
    “ 1st. Because as touching the formal execution and legal validity of the paper propounded in this case, the demands of the law have not been complied with.
    “ 2d. Because the proof submitted establishes a clear case of revocation.
    “ 3d. Because the paper propounded is not the will of Simeon Yerdier, he having lived for many years and finally died under the persuasion that said paper was not in existence, and the attempt now made by the executrix to set up said paper is a fraud upon the just rights of the heirs of S. Yerdier.
    “ 4th. Because said paper is avoided and set aside by law — tbe alleged testator having long believed it lost or destroyed.
    
      “ 5th. Because said paper is produced and offered for probate under circumstances so suspicious, as to stamp with fraud the attempt on the part of the executrix to set it up.
    “ Although all the foregoing grounds were more or less debated on the circuit, those upon which the appellants chiefly relied, were the informal execution of the will and its implied revocation. The subscribing witnesses to the will were Wilson Langley, Joel Laricy, and Crispian Cannady.
    
      “ In reference to the first witness, Wilson Langley, it was proved by James Bailey, Gideon B. Ulmer, Thomas Pritchard, Archibald Campbell and Lawrence McCants, that he resided in Walterboro, in the year 1825; that in 1884 he removed to Alabama. Some of them stated they had heard óf his death shortly after his removal. Nearly all of them however concurred in saying he had ñot been heard of for more than seven years; that while he resided here his character was good.— His handwriting was proved by Bailey, Campbell, and McCants.
    “ In reference to the second witness, Joel Laricy, it appears there aré. two persons of that name, uncle and nephew; the latter, however, was the witness to the will. He testified that the signature to the will was his; but he had no recollection whatever of the transaction, nor of his having seen the other witnesses sign it, but stated he was satisfied he must have been asked by the testator to sign it, as he would not have signed a paper for any one, without having been asked to do so. It appears that when the will was proved in common form, this witness was. absent from the State, and that Joel Laricy, senr., swore before the Ordinary that the signature was his. This witness however, stated that his uncle is about 80 years of age, and for the last four or five years he has considered him in his dotage. Crispian 'Cannady, the last witness to the will, was proved to have been dead about 19 years. His hand-writing was proved by his brother, Thomas Cannady, and Archibald Campbell. His character was proved to have been good.
    “ In reference to the 1st ground of appeal, in which I am charged with having assumed the province of the jury, in deciding upon the facts, I would merely state that it is founded upon a total misapprehension of my charge. What I did state to the jury, and what I thought the circumstances of the case warranted me in stating, was this, that if they had faith in human testimony, I thought from the characters of the witnesses who testified to the handwriting of the deceased subscribing witnesses, the genuineness of their signatures could scarcely be doubted, and as to the question of the execution of the will, I read to them the Act of 1824, providing the manner in which wills must be executed, and expressly charged them, that, to sustain the will, they must be satisfied that the signatures of the witnesses were genuine — that the witnesses were credible, and that they must have subscribed their names to the will in the presence of the testator — that if they were satisfied all these things had been done, and that the will had been executed in conformity with the requirements of the law, it was their duty to sustain it — but if they thought otherwise, it was equally their duty to declare it void.
    As respects the fourth ground of appeal, I did charge the jury, that no change in the pecuniary circumstances of the testator, between the execution of the will and his death, nor in his social relations and moral duties,’ such as had occurred, amounted to an implied revocation of it.
    
      “ As to the fourth ground of appeal, it is very clear that Joel Laricy did not prove the handwriting of Langley; neither did McCants prove the handwriting of Cannady; although I am free to admit, that it is quite probable that in commenting on the testimony of so many witnesses, some of whom testified to the handwriting of the deceased subscribing witnesses, while others testified to their characters, I may have occasionally confounded names — but of this I am certain, that in the notes of my charge, I find the name of Laricy as a witness, who proved bis own and his uncle’s signatures, and the name of McCants,. as one of the witnesses who proved the signature of Langley. But I am not a little surprised, that this mistake was not brought to my notice at the time it occurred, when it could so easily have been corrected, and that it did not occur to the appellants’ counsel that the same measure of justice that claims for this imputed error a reversal of the verdict as it now stands, might have been equally imperative in demanding its reversal had it happened to have been the other way.”
    The defendants appealed on the grounds :
    1. Because his Honor, the presiding Judge, assumed the province of the jury in deciding the fact, that the execution of the will was clearly established, and charged the jury that they must find in favor of the will if they believed in human testimony.
    ■ 2. The execution of the will was not established beyond doubt, and the question of execution should have been submitted to the jury as a fact exclusively for their decision.
    3. Because his Honor charged the jury that no change in the circumstances, social relations or moral duties of Simeon Yerdier, could operate as an implied revocation of his will, whereas, defendants submit that there was abundant evidence to establish a case of implied revocation.
    4. Because his Honor charged the jury that Joel Laricy was one of the witnesses who proved the signature of Wilson Langley, and that L. W. McCants was one of the witnesses who proved the signature of Crispían Canaday, two of the witnesses to the will, when in fact, neither the said Joel Laricy nor the said L. W. McCants were examined as to the signature of either of the said witnesses, and gave no testimony in relation thereto.
    
      5. Because tbe charge of bis Honor, the presiding Judge, and the verdict of the jury, were in other respects contrary to the law and the evidence.
    
      Henderson, earn, for appellants.
    
      Perry, contra.
   The opinion of the Court was delivered by

WniTNER, J.

The facts of this case make it somewhat peculiar. It is, perhaps, not surprising, that, when a paper is offered for probate nearly thirty years after its execution, and when the few thousand dollars it was originally intended to dispose of, have grown into the unwieldy sum of as many hundred thousand, the contest for the spoils should be pressed to a tribunal of the last resort. The points presented for adjudication to this Court, however, are without much difficulty.

Some of the grounds of appeal complain that the presiding Judge was too explicit in his charge, and invaded the province of the jury. In vindication, I shall content myself with a reference to the report of the judge, freeing the case from some of the misapprehensions of counsel, and also to the opinion of GloveR, J., in the recent case of Kirkwood vs. Gordon, 7 Rich. 478, fortified by the authority of the venerable Lord Hale, in his History of the Common Law, 256, 257, treating of the duties of Judges and juries. The rule he lays down, has always been acted on in this State. “ That the Judge who presides, shall always direct the jury in matters of law before they retire or withdraw, and alsp assist them as to matters of fact, weighing the evidence before them, and observing where the main question or knot of the business lies; and sometimes by giving an opinion, even in matters of fact, which is a great advantage to laymen.” This court cannot undertake to designate by rule, tbe manner and form wherein an opinion entertained by tbe Judge of the facts of a case, shall be made known to a jury. Looking to the brief, eertainly the conclusion to be arrived at by the jury, was fairly put in the alternative, and the opinion indicated on the proof offered, was well warranted. In these particulars, therefore, we find no just cause of complaint.

The fourth ground presents somewhat an anomaly as matter of appeal. It is in substance, that the Circuit Judge, in summing up the testimony, confounded the names of the witnesses. There is no allegation that such proof was not made, and by credible pérsons, but that the faets were proven by other witnesses than those named. It cannot be that the jury were then -misled. This is of frequent occurrence, usually corrected by suggestions at'the bar, if deemed of consequence, and otherwise readily detected by jurors to whom the witnesses are generally more familiarly known. Such an objection cannot avail the appellants.

The appellants objeet to the verdict of the jury in argument, because of the informal execution of the will, and the want of sufficient proof of any execution of the paper. Such objections, I presume, may be regarded as eovered by the fifth ground. The will purported to be attested and subscribed by three witnesses, each of whom was credible. Two of them were dead, and the ordinary proof of genuineness of signatures was made. The surviving witness had no recollection whatever of the transaction, but recognized the genuineness of his signature, and was satisfied he must have been asked by the testator to sign itj as he would not- have otherwise signed. His character, it is conceded, is above imputation. It is not necessary, as has been contended, that the witnesses should subscribe in the presence of each other. The statute is satisfied, where each witness has signed in the presence of the testator. 5 Stat. 107, A. A. 1789, Sect. 2: 6 Stat. 238, A. A. 1824, Sect. 8.

Neither is it necessary, as has been insisted, that there should be proof of formal publication of the will by the testator. The will may be good without any words of the testator declaratory of the nature of the instrument, or any formal recognition of it, or allusion to it. Jar. on Wills, 71-2, and cases cited. Here the testator prepared and subscribed the paper with his own hand, and well knowing the instrument therefore, produced it to three witnesses to attest. The design of publication in such case, therefore, is well met.

The third ground complains that the Judge charged the jury that no change in the pecuniary circumstances of the testator between the execution of the will and his death, nor in his social relations or moral duties,” such as had occurred, amounted to an implied revocation. This, at least, was the instruction as set out in the brief. When it is shown that a will has b'een duly executed, it remains of force until revoked. Ambulatory in its nature during the testator’s life, a will, of course, may be revoked at pleasure, yet no implication arises by mere lapse of time intervening. The legislature has attempted with care to provide against frauds and impositions in reference to wills, as well in their execution as in their revocation. Hence, to guard against the admission of loose and uncertain testimony to operate against an instrument so formally executed, the same statutes above cited, provide, that no devise or will shall be revocable, but in the manner or by the means set forth; if in writing, with the same formalities that are required in the execution of the will, “ or by destroying or obliterating the same by the testator himself, or some other person in his presence, and by his direction or consent;” A. A. 1789, Sect. 3 ; A. A. 1824, Sect. 9 : and again having reference to a change of social relations, by 10 Sect., A. A. 1789, it is declared, If any person making a will, shall afterwards marry and die leaving issue, it shall be deemed and taken to be a revocation of such will to all intents and purposes.”

The proof failing to meet the requirement of the statute, the question has been raised, whether a will may be revoked by implication of law, and upon facts, without the purview of the statute, or, as is elsewhere expressed, where there is a presumed alteration of intention arising from the occurrence of new moral duties, which in every age, and almost in every breast, have swayed the human aifections and conduct.

Ch. Kent says, This question has given rise to some of the most difficult and interesting discussions existing on the subject of wills. Extreme cases are found in the books well calculated to test the principle, but in the case made, this Court adopts the ruling of the Circuit Judge as free from just cause of complaint. ■ Notwithstanding the mysteries thrown around the transaction, a different conclusion than the one attained by the jury upon the facts would have been well calculated to break down the land marks of the law, and would have virtually operated as a repeal of the statute.

The motion for a new; trial, is dismissed.

ONeall, Wardlaw, WitheRS, GrLOVER and Mtoro, JJ., concurred.

Motion dismissed.  