
    Means and al. vs. Moore and al.
    
    
      X very unimportant matter may suffice to make out a caso of obliteration, in a will, if it appear to have been animo revocandi.
    
    v t Where the animo revocandi is doubtful, the party that alleges it must prove it It is not enough that a testator intended to revoke his will. Hr. must execute some one of the acts, prescribed by the statute, to effectuate hi: intention ot revocation.
    Testator intending to alter his will, and make a new one, gave directions for that purpose to witness, as he read over the will to him. The witness made memoranda by interlining the propose:, alhr -'- tions in pencil, for his <iwn convenience. One word was scored through with the pencil. Testator not having completed his directions the first day, was unable from weakness to complete them on the second, and the new will was .never dtawn.- Held no revocation, the oOlileration not being made by the direction ol‘the testator, nor intended to reyoke the whole will.
    A verdict without evidence is contrary to law, and the court will always exercise the controlling po . r ■ . g'”Wing new trials; anda similar finding of aseeondjury ... . . alter the law, and tile-court will continue to grant new trials, 
    
    
      Tried before his honor Judge Gaillard, at Spartanburgh Spring Term, 1825.
    This was originally an appeal from the Ordinary of Spartanburgh district, who had admitted to probate a paper-dated 29th of October, 1817, which was executed in due form to pass real and personal estate, and purported to be1 the last will and testament of Gen. Thomas Moore dec’d. It was contended before the ordinary, that the will had been revoked by the acts of the testator in his life time; and the same question was brought before the court below on an issue by suggestion. The jury, in 1824, found against the will, and the appeal court, sent the case back for a new trial, Harper’s L. R. 314,) and the new trial now came on.
    The will, on its production to the court, appeared perfect in every respect, and free from any marks of burning, tearing, cancelling or of obliteration, except that iiv one clause the word man had been scored through with a pencil.
    The following testimony was offered: The first witness, Andrew Barry, proved that he went to the house of the testator to see him, during his last illness, and a few days .before his death He informed witness, in answer to some inquiries, that he had made a will, which was at Dr. Moores. The witness then asked him if he had provided in it for his youngest daughter, who it appeared had been born after the execution of the will. The testator was uncertain. The will was procured by the witness, with the testators consent, for the purpose of ascertaining that fact only. Had it been known that she was provided for, it would not have been sent for. After the will was brought, the testator began to read it, but soon desisted from weakness, and requested witness to read it aloud, which he did, and when he had finished, the testator said, “ it is true she is not provided for.” W itness urged on film the necessity of making another will to pro vide for his youngest daughter; and asked the testator if he (witness) could be of any use in preparing another will. Testator said, “Yes;” and directed the witness to procure a pencil,, and he would shew him how to make the necessary directions or memoranda for the new will. The witness got the pencil, and the testator took the will and directed him to •Underscore such pieces of property as were to be stricken out of any clause, and interline such as were to be inserted in the new will. The witness proceeded with the pencil, in the mode pointed out, through several clauses of the will, and made the interlineations. In making the inter-lineations, the witness did not use the testators words, but the substance only. They were made by and according to the testators directions, but expressly for the witness’s oivn come■* nience, to enable him to draw another will. They were not intended to stand as alterations on this will, or to deface it: and this mode was adopted as the earliest and shortest way of making out the necessary directions for the new will. After going through several clauses, in this way, the testator said, he was unable to proceed, and told the witness to stop. iyitness asked if he should call next day to finish the business; to which he assented. The witness attended accordingly, but found the testator too ill to resume the subject, and nothing more was done. After his death, which took place a day or two afterwards, the pencil marks were rubbed out by the general consent of the family, Roddy, Means, the executors and others, or witness said he would not have felt authorized to rub them out. A copy, was made to prevent dispute, The witness thought the testators only object was to provide for his youngest daughter, and the alterations proposed were calculated and intended to create a fund for that purpose. Many clauses remained untouched, and no Intention was expressed to alter the disposition of the real estate. The testator did not direct any word of the will to be erased or obliterated, nor didM know that any erasure ivas made. He never saw the will 
      
      afterwards: he did not say he revoked it, or intended to revoke if, nor did he direct it to he cancelled or destroyed. The testa* tor did not intend to die without a will. The witness considered the business as wholly in an unfinished state, and that be was to call again to complete the directions for the new will. The testator during the course of the interview spoke of some alterations he ished in the legacies to Mrs. Barry, and Mrs. Roddy. Some three or four years before his death, the testator said to another witness that he had made a will but was not satisfied with it, and intended to alter it. He Said his youngest daughter Was not provided for; he seemed to be uncertain, whether the law would provide for her. He Spoke, also, of the increase of his property as a reason, and that Mrs. Barry had a girl in her possession which he wanted to give her.
    It was also proved that the testator, since the execution C>f the will, had disposed of some Mississippi stock.
    His honor stated to the jury, that he did not consider the acts of Gen. Moore as amounting to a revocation, and that the Constitutional Court, having decided in favor of the will, on a state of facts differing in nothing material from that before them, the decision of the court ought to be regarded as conclusive.
    The jury found against the will.
    A motion was now made,, to set aside the verdict, and for a new trial on the following grounds:
    1st. That the acts performed by the direction of the testator are not embraced within the statute of frauds, or the act of assembly and do not amount to a revocation.
    2nd. That the intention to revoke, if there was any, Was not absolute, but conditional only, depending on the execution and substitution of another will, which was never perfected and therefore no z-evocation took place.
    3rd. That the revocation was partial only, and not 'total. r
    
    
      4th. That the verdict was most manifestly and palpably Contrary to law and evidence.
    
      Thomson against the motion
    Said a subsequent devise, though inoperative, will amount to a revocation. (J> T. R. 128. 1 Roll. 615. 3 Wilson 313-315.)
    Revocation was a fact for the jury. (Powell on Devises 634.)
    
      
       See Silva vs. Low (1 Johns. Ca 336.) The decision of the Appeal Court, granting the new trial, unless new evidence be given,becomes the law of Iht case, and the appeal court must continue to grant new trials, ioties quohes, or give up its dignity and the law to the will of the jury. See M‘Grath and Jones ads. Isaacs, 2 M'Cord 26. Turnbull vs. Rivers, Ante 132. Moore vs. Cherry, 1 Bay 269.
    
   Johnson, J.

For the doctrine of law, applicable to the grounds of the present motion, it will only be necessary to refer to the opinion of the Constitutional court, when this case was formerly before it. (Harpers L. R. 314.)

One of the means provided by the act of the Legislature, (Pub. Laws 491,) to revoke a will regularly executed, and that alone on which- the counsel opposed to the motion rest the case, and the only one which in truth arises out of it, is that of obliterating it.

It never yet entered into the mind of any lawyer, that an accidental or unintentional obliteration amounted to a revocation. All agree that the act must have been done animo revocandi, to make it effectual.

Without entering into a minute enquiry as to what will or will not amount to the act of obliteration, it may be con- , ceeded and perhaps on good authority, that a very unimportant matter may suffice, when the intention is manifest, (Brailsford vs. Johnson, 2 Nott and M'Cord 272.) And for the purposes of this case, it may be admitted, that the underscoring and interlineations made by the witness, Mr. Barry, and the erasure of the words man in one place, and woman in another, as stated in the argument; did amount to the act of obliteration, within the meaning of the statute; and this is all that can be reasonably required; and the case is resolved into the single question of fact- quo animo were these things done.

The plaintiff affirms that they were done animo -revo-candi, and it is incumbent on him to prove it. Is-there any circumstance or expression from which it is possible to decide it? There is none! — On the contrary the witness Mr. Barry, states that they were made, “ expressly for the witness’s own convenience, to enable him to draw another will. They were not intended to stand as alterations, or to deface it. The alterations proposed were calculated and intended to create a .fund,” as a provision for a daughter born after the execution of the. will: “ The testator never saw the will afterwards: he did not say he revoked it, or intended to revoke it, nor did he direct it to be cancelled or destroyed.” If we take these expressions litterally, they certainly furnish no proof of the fact sought-to be established by the plaintiffs. If they are taken in connexion with the state of testators affairs, which is certainly the more correct mode, the same result -follows:

The birth of a daughter, after the execution of the will, and additions to his fortune, had, it is admitted, determined the testator that some modifications in his will were necessary; and the erasures, interlineations, and under scoring of the will in tfuestion, were avowedly intended as a guide to Mr. Barry in the preparation of a new will; and furnish satisfactory ■proof that it was his intention to revoke the old. But this is not enough. Some one of the acts provided hr the statute must have been done with a view to give effect to the intention. And it is evident that he looked to the execution of the new will as the means of effecting it, and it has been before shown that there was-no other act done with a view to effect that object.

It is objected, that, as a question of fact, the verdicts of two distinct juries, are conclusive against the motion; and 'that sending the case back would be unwarranted- interfere -anee on the part of the court -with -the right of trial by jury.

.The court feel sensibly the importance and delicacy of this objection; but whilsh we bow with profound respect to the finding of a jury, in matters within their peculiar province, as the great bulwark of our Jives, reputation and property, we yet feel bound to maintain the supremacy of the law.

Harrison and Earle for the; motion.

Williams and Wallis Thomson, contra.

The court need not resort. to a metaphysical argument to prove that a verdict without evidence is contrary to law. The right to control a verdict under such circumstances has always been claimed and maintained in this and in every other country where the laws have been properly administered; and of this our own courts furnish many instances. (1 Bay 269. 2 Do. 23-131.).

This, as has been before noticed, is the second time that this case has been before the court, and the probability is, that all the facts that exist have been fully developed, and as the court are bound by the rules of law to maintain the ground taken, it is submitted whether the parties would not consult their own interest and the public convenience by putting an end to a course of litigation which must in the end prove unprofitable.

Motion granted. 
      
       See the third clause of the act, (Pub, Laws 49Í,)- which corresponds with the sixth clause of the-English statute-of frauds Though the .provisions of our statute oí wills, generally, correspond with those of the statute of irauds, in relation to wills, yet the two legislatures have expressed themselves in different words, and the careful lawyer will always choose ■to refer to his own statute. Jl,
      
     