
    Denton and wife against Joshua English and wife.
    thenoSimuy0sevS wills, all in his ^differemdS”!; SI6ofwS ™ not completed: “em“eeJSíh was the l<ist will» so far as regarded the personal es-“|4"™6 hiving erated.™llllyox
    This was an appéal from the decision of the Ordinary of this District on several papers purportina to be the-last wills and testaments of * ° William, Fitzpatrick, neither of which did' the Ordinary allow to be proved as his last will, but J A decreed that he died intestate. Upon this de- , -| /v> /»i -n , i . • i cree the piaintins iiled their suggestion, and 00 . submitted the case to be tried by a Jury, agreeably to the act of Assembly. The trial was had before Mr. Justice Grimké, the report of which is as follows:
    The facts proved in the case were, that the three wills produced were in the handwriting of William Fitzpatrick: all of which were drawn with correct technical accuracy; all of which had in them the usual clause of revocation, and declaring that to be his last will and testament; all of which had also annexed to them the usual form of signed, sealed, published, and declared, &c. as his last will: but beneath which there were the names of no witnesses, nor were any of these three wills signed or sealed by William Fitzpatrick; one of the wills was dated in 1802, another dated in 1806, and a third dated one thousand eight hundred and —; upon the back of the will of 1806 was written, “ void,” but which was proved not to be the handwriting of William Fitzpatrick ; nor was it proved who wrote it, nor when it was so endorsed. This was all the evidence in the case; and I charged the Jury, that there were three points for their consideration:
    1st. Are any of these papers good as a will?
    2d. And if any or ah are good wills, which is the last ?
    3d. Are there any circumstances which go to destroy the validity of said last will ?
    1st. With respect to the first point, I observed to them that either of the papers produced was a good will for personal property, for the law did not require that a man’s will, by which personalty passed, should have either a date',, or a witness to it, or the signature of the party making it, or that it should even be written in his own handwriting; but if it were written in another man’s handwriting, it became then necessary to prove that the person who wrote it, did so by the desire of the testator;'that in the present case, William Fitzpatrick had written these papers with his own hand, and had begun each of them with a formal declaration of, “ Í, William Fitzpatrick, do hereby make this my last will and .testament.” I stated to them that it had been the law of this country for more than a century, that a man’s writing his name at the top of a will of personal property, was considered as a signing of the same; for it was immaterial whether the name was put at the bottom or the top of such a paper, since it would thereby show whose vn-'f it was, and would remove the difficulty which must necessarily ensue if the name of no person was mentioned in the will to show who was the testator; that the testator in this case had gone further than the law required to make his will a legal one, by writing it in his own hand, and by putting his name at the top of it; that the law was very clear on this head of either of these wills being good and legal, in the condition in which they were. I stated to them also upon this point, that there was no proof whatever that any undue or sinister practices had been made use of by the plaintiff’s wife to procure these wills to be made in favour of herself or' her child, and there was no suspicion thrown out of the testator being insane at the time that either of these wills were made; that it was true, testator had made a fourth will in 1808, which had been tried before the Ordinary, and on which occasion it had been sufficiently proved that he was non compos at the time of making said will, and which had therefore been set aside; that much stress had been laid by the counsel on the circumstance of these wills being in the possession of the plaintiff’s wife at the death of Fitzpatrick, insinuating thereby that she might have possessed herself of them in an undue manner; but I stated to the Jury, that this observation ought not to have any weight on their minds, when they recollect that plaintiffs lived in the house with the testator, and that a man’s house was the proper place of deposit for hi& papers, and particularly of those of as great eon-' sequence as his will. Having shown them, that either of these wills were good in law, I proceed-* ed to state the second ground for their consideration.
    2d. 1 told them that the will of 1802 must be laid aside altogether, for there being another dated 1806, and with a clause of revocation in it, the last will must have the preference : that if the question was respecting these two wills only, the point of dispute would soon be adjusted by referring to their dates: that having got rid of the will of 1802, they would bend their minds to the consideration of which of the other two wills was the last made. I told them that they were to determine according to the evidence before them, and the plain import of the words, ascertainingthe dates; that the will dated eighteen hundred and —, did seem to signify that the date was not entirely concluded, and that the testator had intended to add something further to it; but what that addition was to be, was vague and uncertain. It was so indefinite that it might be filled up with any word signifying a date anterior to 1806, as well as a word posterior to that year; that they were not at liberty to presume with what date it should conclude, and therefore they could only consider it as of the date which it bore upon its face; that it was the province of a Jury to determine facts, and not impossibilities; that where there are two pieces of testimony, one of a doubtful character, the other plain and positive, I did not think they could hesitate to which they should incline.
    ^ 3d. 1 stated to them that an objection had been made to all these wills, because, as the counsel argued, it would appear from the face of the wills it was unfinished, and therefore the testator did not intend them to be his last will, but meant to abandon them; for if he had an intention of doing something else to them, neither of them could be said to be the last deliberate act to perfect said will; and this, they said, sufficiently appeared, by there being no witnesses, nor the seal nor signature of the testator, and from his writing in his own hand, “ signed, sealed, published,” &c. I stated to the Jury that cither of these papers were well drawn technical wills, and were good for personal property, without those requisites insisted upon of witnesses, or seal, or signature; that hundreds of wills were drawn in the same way, and concluded in the same manner, without their having been impugned, or, if they were so, without their having been rejected; tfiat the whole tenour of the will showed a deliberate act of the mind, and when he had closed his word as to these wills, they were as much perfected for the purpose of conveying personal property, as if he had signed and sealed, and had had it attested by witnesses; that it would appear, by the legal description of the estates given in the will, and the technical accuracy- with which they are drawn, that he must have had some knowledge of what constituted a good will, and what 0 were the usual ana necessary requisites to inake it valid. Upon this ground, therefore, I told them, that I did not think this objection could prevail; that there was another objection made to the validity of this will, the word “ void” being written upon it, for the counsel argued that this was a revocation of that will — it went to prove that the testator had altered his mind, and had declared this will void: that, therefore, although it might appear to be the last made as to the time, yet it could be of no avail, as he had declared it void. I told the Jury, that the law upon the subject of revocations was, that so solemn a deed as a will must be revoked by at least as solemn an act of the testator as he had made his will; that this did not appear to be the case in the present instance, for there was no later will which revoked this. It was, therefore, of no consequence that the word “ void” was written on this will of 1806, as it was not proved to be in the handwriting of the testator, nor there written by his orders or directions: It ought not, therefore, to be considered as a deliberate act of revocation by testator, and, if not done by his orders, could not be of any avail. I finally stated to the Jury, that there appeared to be an uniform desire and constant anxiety in the testator to provide for the defendant’s wife and her child, by the repeated wills he had made in her favour, and that it did appear by them that rr J he was determined not to die intestate; that if the Jury assumed the position of the counsel for the defendants, viz. that it was impossible to termine which is the last will of those dated 44 eighteen hundred and —,” and the other dated 1806, that then they must decide, that notwithstanding there were three wills produced to them, it was his intention to die intestate, without any wish or meaning that any of them should take effect.
    I then submitted the whole case to their consideration, under the three distinct points I had made for theiü in the cause, and to which they were to apply the evidence as detailed to them. The Jury found that the will of 1806 was the last will and testament of William Fitzpatrick. From this verdict the defendants have appealed, 1st, On all the grounds taken at the trial; and, 2d, Because the Judge, in charging the Jury, withdrew from their consideration whether there was not a fair presumption of abandonment of the paper of 1806, to be collected from the lapse of time between the writing of it and the death of the testator, and the word “void” written on it; 3d, Whether the word “void” must not be regarded as written by the testator, or with his approbation, since it was on it when it came out of the hands of the plaintiff’s wife, and she did not account for the manner of its coming there; and, 4th, Whether the paper of 1806 was legally proved to be the last paper written ?
   ---The opinion of the Court was delivered by

Mr. Justice Grimice.

I should not do justice to myself, did Í not state that the counsel must have totally mistook the tenour of the charge I delivered to the J ury : they must have interpreted the several observations I made on the evidence, as I was detailing it, for an opinion which was to govern the J ury; whereas, after having made my reflections on the several parts of the evidence, as they appeared to me, I left the whole of the facts arising out of the evidence for their final determination. Neither is this the only point in which the brief is incorrect; for it mentions, on the subject of the word “ void,” that the witnesses were unable to say whether this was Fitzpatrick's handwriting or not; whereas Culpepper testified that he did not believe it to be his handwriting, which I think is as strong evidence as is usually given in a Court of justice by a conscientious witness, which is always deemed sufficient in cases of life and death. The brief has also represented as a fact, that the word “ void” was on the paper of 1806, when it came out of the hands of the plaintiff’s wife; whereas no such fact was sworn to, nor was there any proof whatever when the word “ void” was first observed on the will. It might have been presumed that it was there when she first produced it, but there is a stronger presumption arising on the other side, that it was not there at that period, since it was proved not to be the handwriting of Fitzpatrick, and that it can scarcely be imagined that she, who had the custody of this will, or her friends, would write a word on the will, which would have a tendency at least to raise a suspicion of the authenticity of that will, or which might destroy the hopes she had under it, and wherein provision was made for her and her son. Having made these observations on the inaccuracy of the statements in the briefs, I conclude by saying, that, after a review of all the circumstances of this cáse, I am confirmed in the propriety and legality of the opinion I submitted to the Jury, and of their verdict thereon; fori have no doubt that any of the wills produced .on the trial, was a good will, and sufficiently executed to make it a legal one, to pass personal property, according to the practice of this country for more than a century past, and the legal decisions which have taken place on that point: and, 2d, that the will of 1806 was, and ought to be, the last of these three wills: and, 3d, the circumstance of this will having been left in the unfinished state in which it was found, did not vfi tiate it; for not one of the numerous authorities quoted by the counsel for the defendants, come up to the point in this case. All of them were of papers intended as minutes or memorandums of wills to be made, and which appeared by some act of the person intending to make a will hereafter, or some declaration which went to prove that what they had done was not final and conclusive ; whereas Fitzpatrick, in this case, has given the best commentary on the effect which the papers he wrote as wills were to have: he himself has given a construction to them, which cannot be mistaken; for if he had not considered the wills of 1802, and 18 — , as perfect and legal wills, and that there was no occasion to add any thing further to them, to make them such, he would not have inserted clauses of revocation by which these anterior wills were to be nullified.

I am, therefore, of opinion, that the motion for & new trial should be discharged.

Colcoclc, Cheves, Gantt, and Johnson, J. concurred.  