
    *Rochelle v. Rochelle.
    March, 1839,
    Richmond.
    Will — Memorandum of — Probate—Case at Bar — Before the statute of March 4.1835, went into operation, a decedent, being' attended in his last illness by a scrivener whom he had requested to write his will, told him that he did not wish him to write the will at that time, but desired him to make a memorandum by which it should thereafter be prepared. The scrivener accordingly, under the direction of the decedent, wrote down in pencil, on a small piece of paper, a memorandum in the following terms : “To mrs. Rochelle in fee, lOme-line and child Charlotte, Phcebe, Washington, Tine and Dizza, all my beds and furniture, carriage and harness. All loaned during widowhood, real and personal. Discretionary with ex'or, for good reason, to sell negro. Mary Prances, Martha Eliza to be educated and clothed. At the death of mrs. Rochelle having no child by me, the whole to my brother's children (horse Bullet to Jno. Turner) the plantation and hands to remain as at present. Harry and Jerry to be kept at the carpenter's trade. My lands to belong to John and Wm. and girls to receive more negroes.” This memorandum, when concluded, was read to the decedent, who looked over and examined the same, and said it was right. The scrivener then left him, promising to return on the third day, but was accidentally detained until the fourth ; and when he got back, the decedent was dead. On the failure of the scrivener to return at the appointed time, the decedent mentioned to another person that he had given him the heads of his will, and expressed great anxiety for his arrival, saying, that if he would come and fix his business, he should die perfectly satisfied ; that his will was not all the business he wanted with him. The memorandum being offered lor probate as a will of personalty, Heud. such probate should be refused.
    The county court of Southampton, at July term 1835, admitted to probate, as the last will and testament of William L. Rochelle deceased (so far only as to pass personal estate) an instrument of writing in pencil, in the following terms:
    “To mrs. Rochelle in fee Emeline and child Charlotte, Phoebe, Washington, Tine and Eizza, all my beds and *furniture, carriage and harness. All loaned during widowhood, real and personal. Discretionary with ex’or, for good reason, to sell negro. Mary Frances, Martha Eliza to be educated and clothed. At the death of mrs. Rochelle having no child by me, the whole to my brother’s children (horse Bullet to Jno. Turner) the plantation and hands to remain as at present. Harry and Jerry to be kept at the carpenter’s trade. My lands to belong to John and Wm. and girls to receive more negroes.”
    This instrument was propounded to the county court for probate by Frances Rochelle. The probate was opposed by Ann Rochelle, the widow of the decedent; and from the sentence of the county court, she appealed to the circuit superior court of law and chancery.
    On the hearing of the appeal, two witnesses were examined, and their testimony spread upon the record.
    1. S. Parker testified, that he was at the decedent’s house on Sunday the 1st of March, at which time the decedent was very ill, and confined to his bed. During the evening of that day, decedent told the witness that he wished him to do some writing for him. Witness expressed his perfect willingness to do so, but suggested that it would be better to defer the business until the next morning. He remained all night with the decedent; who, the next morning again introduced the subject, and remarked that he wished the witness to write his will. However, he did not urge the witness to write the will at that time ; and it was agreed between them, that the witness should write it the next day, or the next time he visited the decedent. He did visit him again, on the following Wednesday ; when decedent again spoke to the witness about writing his will. Witness asked whether he should have a table prepared for the purpose, in the room where decedent was then lying? Decedent answered, that he did not wish the witness to write his will at that time ; but desired '*him to make a memorandum, by which the will should thereafter be prepared. Much conversation then took place between them, as to the disposition which decedent intended to make of his property, and the mode in which he wished it to be managed. In the course of this conversation, decedent said that he would not, upon any consideration, die without a will; that there were many considerations inducing him to make one : and he then stated, as reasons why he ought to make a will, that he did not wish mr. Hand, his brother in law, to enjoy any part of his estate, and that he had always promised his sister Fanny to educate her two little girls ; one of whom was then living with the decedent, and going to school at his expense. In the same conversation, decedent expressed a wish to appoint the witness his executor. He also stated, that he had had timber cut to build a dwelling house, and wished the house to be built ; that he did not wish the land attached to the plantation on which he lived to be cleared, but merely that the branches &c. within the enclosure should be cleared; that he desired the land he owned in Sussex, which was principally in woods, to be cleared ; and that he wished the witness to be allowed full and adequate compensation for his trouble,' — ■ meaning, as the witness supposed, compensation for settling the estate. Witness then left the decedent, and went into another room, in which there were several persons. There he found a small piece of paper, which he carried into the room where the decedent was lying, and proceeded immediately to make out, in pencil, under the direction- of the decedent, the memorandum by which the will was to be prepared; which memorandum is the same' writing now in controversy. After the witness had prepared the memorandum, he took a seat on the bedside, and read the same to the decedent; who, at the same time, looked over and examined it. Witness asked him if it was right; to which he ^replied that it was. At the time of preparing the memorandum, decedent was in his perfect senses, and competent to make a will. It was understood by decedent that the witness'had to go the next day to Sussex county court, and he would not return to decedent’s house until the evening of the ensuing friday. In consequence of bad weather, the witness was unable to return on friday ; and on Saturday, when he arrived at the decedent’s house, he found him dead. At the time of writing the memorandum, there was no ink (as the witness understood) in the room, though there may have been ink in the house. The decedent explained to the witness, that by the name “mrs. Rochelle,” mentioned in the memorandum, he meant his wife; by the names “Mary Trances” and “Martha Eliza,” therein mentioned, he meant the two daughters of his brother Nathaniel; by the name “Jno. Turner,” therein mentioned, he meant John A. Turner; and by the names “John” and “Wm.” therein mentioned, he meant the two sons of his said brother Nathaniel. This brother was dead at that time. The decedent had another brother, who had never been married. The witness stated, that he should have prepared the will pursuant to the memorandum, uninfluenced by the conversation which had previously taken place between the decedent and himself, except that he should have concluded the will with a clause appointing an executor, but leaving a blank for the executor’s name, as he did not himself wish to qualify, though he believes the decedent expected and desired him to do so : that in writing the will, he should not have imbodied any direction that the woodlands in Southampton should not be cleared, or that a dwelling house should be built by the executor, out of timber which the decedent had caused to be prepared for the purpose; because no such directions were contained in the memorandum, and the witness regarded that as the only proper authority to *be pursued in preparing the will.- He further stated, that when he wrote down in the memorandum the words “beds and funiture,” he asked the decedent what he meant by them; to which the decedent replied, that he meant his beds and all his household furniture.
    2. G-. Rawlings testified, that having gone on thursday to see the decedent, he found him very sick in bed, but in his perfect senses. Decedent told the witness, that he had given mr. Parker the heads of his will the day before, and that mr. Parker was to be there with the will on the next day. On Saturday the witness again visited the decedent; who remarked to the witness on his arrival, that “he was compelled to die.” Some time afterwards, he expressed great surprise at mr. Parker’s absence, and anxiety for his return, saying, that if he would come and fix his business, he (the decedent) would die perfectly satisfied; that his will was not all the business be wanted with mr. Parker; but that he must go and leave it all, for that he should not live until night. ' The decedent did not inform the witness in what way he intended to dispose of his property, nor what directions he had given to mr. Parker for making out the memorandum or heads of his will. Decedent, at the time of his death, had been married about two years. He had then no child born ; but he left his wife pregnant, and about two months afterwards she was delivered of a child, which was still living.
    The circuit court affirmed the sentence of the county court; and on the petition of Ann Rochelle the widow of the decedent, a judge of this court allowed her an appeal from the judgment of affirmance.
    Eeigh and Johnson, for appellant.
    The memorandum admitted to probate in this case is clearly invalid as a nuncupative will, for the statute requires that every such will shall be proved by two witnesses, and here *but one of the witnesses was even acquainted with the provisions of the paper. If it be established at all, it must be established as a will in writing. Now, whenever a paper is offered for probate as a will, the court must be satisfied that it contains the final and fixed determination of the decedent as to the matters therein specified, without contemplating any modifications of them to be afterwards made. Allen v. Manning, 2 Addams 490 ; Montefiore v. Monte-fiore, Id. 354 ; 2 Eng. Eccl. Rep. 394, 340; Devereux v. Bullock, 1 Phill. 60 ; 1 Eng. Eccl. Rep. 35 ; Jameson v. Cook, 1 Haggard 82 ; In the goods of Herne, Id. 222; 3 Eng. Eccl. Rep. 36, 93 ; Reay v. Cowcher, 2 Hagg. 249 ; 4 Eng. Eccl. Rep. 100. That the memorandum here does not express the fixed and final determination of the decedent as to the disposition of his property, but was merely-designed as notes to prompt the memory of the writer in drawing up the will according to the decedent’s intent declared in the previous conversation, is manifest from the character of the paper on its face and from the testimony in the cause. 1. It is written in- pencil; a circumstance shewing, prima facie, that the provisions are merely deliberative, not final. In the goods of Dyer, 1 Hagg. 219; Hawkes v. Hawkes, Id. 321 ; "Edwards v. Astly, Id. 490, 3 Eng"- Eccl. Rep. 92, 139, 216, — 2. The dispositions are uncertain, and only capable of being rendered certain by parol evidence of the intent of decedent as declared in conversation. Thus the parol evidence alone explains what persons were meant by the designations “ mrs. Rochelle ” — “ Mary Erances, Martha Eliza ” —“ John and Wm.” The executor is vested with discretion “ to sell negro ;” but whether the intent was to give him the power of selling one only, or all of the negroes, is manifestly uncertain. The estate is given to mrs. Rochelle during widowhood ; yet it is afterwards provided that at her death, having no child by the decedent, the whole shall go to his brother’s children : and it is '^uncertain whether the children of the deceased brother alone are meant by that designation, or children of both the brothers. The girls are “to receive more negroesbut nothing is said as to the number, sex or age of the negroes that each of the girls is to receive. Erom the cases of Green v. Skipworth, 1 Phill. S3 ; Wood v. Wood, Id. 357,. 1 Eng. Eccl. Rep. 32, 101 ; Montefiore v. Montefiore (before cited); Maclae v. Ewing, 1 Hagg. 317, 3 Eng. Eccl. Rep. 137, and Cogbill v. Cogbiil, et al., 2 Hen. & Munf. 467-525, it may be collected, that the court cannot admit to probate a paper whose interpretation, though plain as to some of the legacies, is so doubtful as to others, that it is uncertain what the testator meant thereby. Nor can a paper be admitted to probate, when, in order to explain its meaning, it is necessary to resort to parol evidence such as would not be admissible to explain a will after probate. 7 JBac. Abr. 338, — 3. The paper upon its face appears to be imperfect and unfinished, and the evidence incontesti-bly proves that it does not contain the whole will of the decedent. It contains a bequest to mrs. Rochelle of all his “ beds and furniture and these words import only beds and bed furniture ; yet it appears by the testimony, that the decedent meant to bequeath to her his household furniture. By the expression “ girls to receive more negroes,” it is impossible to conceive that the decedent intended a final and complete disposition ; it indicates nothing more, in praesenti, than his general purpose to give a further bounty, leaving the amount and component parts of the gift to be specified afterwards. Moreover, in the conversation with Parker, the decedent expressed his wish to appoint him executor; his wish that one plantation should be cleared, and the other not; and his wish that a dwelling house should be built out of the materials he had prepared for the purpose : yet the notes are wholly silent on all these points. Now, although an unfinished paper may under some circumstances *be admitted to probate, yet the presumption of law is strong against every such paper, and the court must be satisfied, by the strongest possible evidence, that the intention of the decedent to give the legacies specified was fixed and final, that he never abandoned that intention, and that he was prevented by the act of God from proceeding to the completion of his will. Sir John Nicholl in Reay v. Cowcher, 4 Eng. Eccl. Rep. 112, and in Dev-ereux v. Bullock, 1 Id. 35, in both of which cases unfinished papers were prepounded for probate, and rejected. In Johnston v. Johnston, 1 Phill. 447,1 Eng. Eccl. Rep. 159 ; it is said by the same judge to be now clearly settled, that in respect to an unfinished paper, though followed by sudden death, the interval must be accounted for, and it must be shewn that the testator adhered to the intention, but was prevented from finishing it. In Griffin v. Griffin, 4 Ves. 197, in note; Sandford v. Vaughan, 1 Phill. 39; Bayle v. Mayne, 3 Id. 504, 1 Eng. Eccl. Rep. 28, 462, and Antrobus v. Nepean, 1 Addams 399, 2 Eng. Eccl. Rep. 152, the papers propounded were rejected because the interval was not accounted for. It cannot be said, in any proper sense, that the decedent here was prevented by the act of God from completing the dispositions which he had declared his intention to make. His death was not sudden. He was conscious of its approach; and though it took place shortly after the time appointed for Parker’s return, the interval was amply sufficient for making his will, and it does not appear that any other circumstances existed to prevent his doing so. In Montefiore v. Montefiore (before cited) sir John Nicholl says : “ The rule which I take to operate in case of every unfinished paper is this : Can the court infer, that by pronouncing for it, it will carry into effect what it collects, from all the circumstances of the case, to have been the decedent’s wish ? In that event, it will be its duty to pronounce for it; but surely not, if it sees reason to believe that, *by so doing, it will defeat or counteract instead of giving effect to that wish.” Here the memorandum contains the declared wishes of the decedent as to the disposition of both his lands and his personalty ; the two subjects are mixed up together : but the contemplated disposition of the realty must at all events fail, not being declared in legal form and there is every reason to believe that by establishing the paper asa will of personals alone, the intentions of the decedent will be defeated altogether, instead of being effected in part. 4. The evidence is complete to shew that the decedent, at the time the notes were prepared, had no intention of then making his will. He told Parker that he did not wish him to write his will at that time, but desired him to make a memorandum by which the will should be after-wards prepared. And when Parker failed to return at the appointed time, he expressed his uneasiness at the prospect of dying without a will, and his consciousness that he had made none.
    Macfarland and Rhodes, for the appellee.
    To constitute a valid will of personals, it is only necessary to prove testamentary capacity, and final volitions expressed in writing, either by the decedent himself, or by some other person under his authority and during his life. Neither signature nor attestation is necessary. Even if it shall appear that the act propounded as a will was not designed per se as such, but was merely done towards the making of a will, as notes or instructions, yet if it contains the final intentions of the decedent, which he was prevented by an act of God from investing with a more solemn form, it will be admitted to probate as his will ; and this-, even though the instructions, after being reduced to writing, were never seen by the decedent, or read to him. Cogbill v. Cogbill et al., 2 Hen. & Munf. 467 ; Green v. Skipworth, 1 Phill. S3 ; Wood v. Wood,.l Id. 370; Huntington v. Huntington, 2 Id. 213 ; Sikes v. Snaith, 2 Id. 3S1 ; Lewis v. Lewis, *3 Id. 109 : Allen v. Manning, 2 Addams 490 ; Burrows v. Burrows, 1 Hagg. 109.; Manly v. Lakin, Id. 130; Mas-terman v. Maberly, 2 Id. 235 ; Mitchell v. Mitchell, Id. 74. Here, the testimony establishes that it was the fixed and final determination of the decedent to make all the provisions specified in the paper. He desired Parker to make a memorandum by which his will should be prepared; the memorandum was made under his direction, read over to him, examined by him, and pronounced to be right; he afterwards told Rawlings, that he had given to Parker the heads of his will, and that Parker was to be there with the will on the following day ; and when Parker disappointed him by failing to return on that day, he expressed his concern at the disappointment: shewing throughout, that he considered the memorandum as containing the substance of his will, and dying without ever having intimated the slightest dissatisfaction with the provisions therein made, or any purpose of changing any one of them. It is impossible that finality of intention should be more strongly evidenced than it was in this case. As to the objection that the provisions of the memorandum are obscure and uncertain, — no such objection applies to them, in point of fact: they import a disposition of the decedent’s whole estate among his relatives, in a manner reasonably certain and intelligible. But whether this be so or not, is of no importance in a court of probate, which has only to enquire whether the paper propounded as a will purports to make a disposition of the decedent’s estate, and contains what he intended and considered as the expression of his final volitions on the subject. The objection of obscurity and uncertainty often lies as strongly against papers clearly admissible, and. in fact admitted, to probate, as it possibly can against the paper here propounded. It is further objected, that this paper is fatally defective, because, admitting it to contain final volitions of the decedent *as far as it goes, it does not contain his whole will as to the disposition and management of his property. But, first, the objection is not sustained by the evidence: for it appears that the expression “beds and furniture,” in the memorandum, is the very language which the decedent employed in dictating to Parker ; and as to the omissions, noticed by the counsel for the appellant, of several other matters upon which the decedent, in the conversation with Parker, had expressed his wishes, it may be remarked that the memorandum, after being concluded without mentioning those, matters at all, was examined and approved by the decedent, and therefore the inference is, either that he never intended to include in his will any directions upon those points, or that he abandoned that intention, because he deemed it (as in truth it was) of very little importance. Secondly, admitting that the paper does not contain all the provisions which the decedent intended to make, it by no means follows that it must therefore be rejected. The rule is, that if the will, so far as it goes, imports undisputed bequests, and there is no reason to doubt that the testator intended such bequests at all events, they will not fail because he intended to make additional provisions, but died without executing such intention. This is well settled. Cogbill v. Cogbill et al., 2 Hen & Muuf. 467 ; Musto v. Sutcliffe, 1 Eng. Eccl. Rep. 368 ; Nathan v. Morse, Id. 465; Ingram v. Strong, Id. 260 ; Rockell v. Youde, Id. 381 ; Wood v. Wood, Id. 101. Nor is it any objection to the probate of the paper here, that it imports a disposition of real estate as well as of personal, and is not so executed as to constitute a valid will of lands. It is every day’s experience,1 as indeed it is an elementary proposition of law, that an instrument, clearly insufficient as a will of lands, and yet purporting to dispose of lands, may be established as a good will of personals. Lastly, it is objected that the decedent did not intend this instrument *as his will. It is sufficient to reply, that instructions for a will are never designed to constitute, per se, the will itself : yet the cases already cited establish conclusively, that wherever a decedent has been prevented by the act of God from executing a will in solemn form, for which he has given instructions, those instructions, if reduced to writing before he died, will operate as fully as the will itself could have done. The evidence proves nothing more than the fact (wholly unimportant, under the authority of the cases referred to) that this paper is not the identical instrument which the decedent intended to leave as his will, but that he purposed to execute one more formally drawn up, containing the same provisions, and perhaps a few in addition, of little importance in themselves, and nowise altering or affecting those which appear in the memorandum. What he said to Rawlings on the day of his death seems, indeed, to evince his own belief that the memorandum was not a sufficient expression of his will, — that the law required a more formal instrument; but if he was mistaken in that impression, and had done all that the law required to constitute a valid will of personals, his ignorance that he had done so is surely no ground for rejecting the paper.
   BROOKE, J.

I think it impossible that the notes for a will in this case, though read to the sick man, and pronounced by him to be right, as is proven by Parker the scrivener, were meant by him to contain the will, the final will he intended to make. The notes were no doubt intended as an outline of his will. There are not materials enough in them for a final will. It was not intended to be left conclusively to the scrivener to make more specific disposition of the property than was to be found in the notes. Eor example, would it be intended to be left to him, under the expression “girls to receive more ne-groes,” to decide how many more, and *of what age and sex, each of the girls was to receive; or to explain other obscure clauses in the notes ? I think not. Parker, the witness and scrivener, says, the testator told him he did not wish him to write his will at that time, but desired him to make a memorandum by which his will was thereafter to be prepared. He then proceeded to make the memorandum under the direction of the testator ; then read it to the testator, who looked over it, and said it was right. The scrivener-then went away, promising to return on friday ; evidently that the deceased might again have it in his power to explain his meaning in the very vague and unfinished clauses in the memorandum. The other witness, Rawlings, speaks of his great anxiety that the scrivener should return before he died. He said, if Parker would come and fix his business, he would die satisfied. If he had supposed that the notes contained his whole and final will, and wanted nothing but form, he could not have been so anxious that the scrivener should return, I know that there are cases quoted by counsel from Recles. Rep. the decisions of sir John Nicholl and other judges, that have gone farther than this case. But this court has not adopted those cases, especially the cases .in which the notes were not read over to the deceased, nor the instructions, after being reduced to writing, seen by him. Suppose the scrivener had substantially given form to the notes in pencil, and returned with the draught to the deceased ; it is not possible to believe that he would have executed it as his will, without change in several particulars. In coming to the conclusion that the notes do not contain the will of the testator, I do not put the case on the ground that the notes are too obscure, or that they are too uncertain for a will (because wills regularly proved are often so) but on the ground that the testator, though he said they were right, did not intend that they should, if expanded into form, be the final disposition of his property. *1 cite none of the numerous cases on the construction of wills, for though they are to be resorted to for rules of construction, they furnish no light to guide us to the intention of a testator. Nor do I put the case on the ground that the real and personal estates are so commingled, that as the notes cannot be proved as to the real estate, it would defeat the intention of the deceased if they were admitted to probate as to the personal estate ; (because there are cases in which a will has been admitted to probate as to the personal estate and not as to the real, by which the testator’s whole plan of provision for his family has been defeated ;) but on the ground that the notes were not designed by the deceased to include his final will as to the disposition of his property.

I think the judgment must be reversed.

TUCKER, P.

This case has been argued with very great ability, and the court is much indebted to the diligence of counsel for collating all the cases calculated to throw light upon its difficulties. Among other authorities, we have had an array of all the ecclesiastical decisions ; an advantage which was denied to the court in some of our own cases, decided before the publication of those reports. Yet I apprehend they will be found not to have gone farther than the reported cases in the courts of common law. As long ago as the reign of Henry 8, when the first statute of wills was passed, the most lati-tudinous construction was given to the power of devise. That statute provided that “every person should have power to give, dispose, will, and devise by will in writing, or otherwise by act executed in his lifetime, all his manors, lands” &c. The courts (upon the principle, I presume, of construing liberally a remedial statute) went to very great lengths in establishing imperfect wills. They seem to have considered a literal compliance with the statute sufficient, and if *the substance of the devise was proved satisfactorily, and it was reduced to writing, no matter by whom, provided it was in the testator’s lifetime, they held it good. Accordingly, as long ago as the time of lord Coke, a will was held good where a lawyer took only short notes with a design to reduce it into form, which he afterwards did, but the devisor died before it was read to him. Brown v. Sackville, Dyer 72, note; S. C. Anderson 34. The great mischiefs and frauds to which this loose mode of disposition gave rise, led, in the reign of Charles 2, to the statute of frauds and perjuries, prescribing the formalities and ceremonies in the devise of lands, which still prevail. By a subsequent clause of the same statute it was declared that no nuncupative will should be good, except such as were made and proved according to the requisitions of the statute. This was equivalent to declaring that no will of personals should be valid unless it was in writing, or executed with the solemnities required in the case of nuncupative wills. Now, while the statute of Henry 8, was an enlarging statute, this statute of Charles was a restraining statute, and should have been construed upon opposite principles ; and the rather, as the mischiefs arising from the loose practice under the former constituted the very ground of enacting it. Yet it must be confessed that the courts have gone to the utmost limits of the former decisions, and at this day, in the english ecclesiastical courts, instructions for a will, given with a design that they should be reduced to form, would be held and taken' to be a good will, though never read to or approved by the testator, provided it should appear that he was prevented from completing the will in the form which he designed, by the act of God. I do not think our courts have gone so far, but on the contrary they seem to have rejected notes for a will, though dictated by the dying man, where it did not appear that they had been read over and approved by him. Mason v. *Dunman, 1 Munf. 456. In doing so, they have certainly adhered to the spirit of the statute, though they have departed from english authority. For the object of the statute, in requiring writing, was to prevent the fraud and perjury which may so easily be perpetrated where the wills of testators are left to the slippery memory of witnesses. But how is this effected if the writing is never seen, read or approved ? What is such a will, after all, but a nuncupa-tive will reduced to writing in the testator’s lifetime; a will depending altogether upon the memory and the veracity of one, instead of two or three witnesses ? for with us, one witness has been held sufficient to establish a written will of personalty. How are we assured, except by the oath of one man, that he has not mistaken, even if he has not designedly misrepresented, the decedent’s meaning ? Writing was designed, among other things, to give assurance that the will should not be mistaken ; but this important object is frustrated, if it be deemed unnecessary that the instructions should be read over to the testator. I think, therefore, our courts wisely went back to the statute, instead of following the ecclesiastical courts. Happily the question, since our recent act, has ceased to be of much importance, and fortunately too, even in this case, it is unnecessary to take it up. Ror here the notes or instructions were written according to dictation, and were afterwards read over, examined, and approved by the testator.

The question in this case is of a very different character. It is contended by the appellant that the paper propounded is not a testamentary paper; that it is not a will; that it does not imbody the provisions designed by the testator in reference to his estate; that it was not looked to as so imbodying them, either by the decedent or the scrivener, but that it contained hints only, designed by the scrivener for his own direction, leaving much that was essential in the testator’s directions to *be filled up from memory. On the other hand it is contended that the paper itself is the true last will of the decedent, and as such was properly admitted to'probate.

In order to sustain this memorandum as the decedent’s will, it is not necessary that he should have designed the identical paper to be his will. Where the transaction takes place in extremis, the instructions for a will may be taken to be the will itself, however plainly it may appear that' the design was to draw out the notes into form, and to execute such draught as the last will and testament. Ror if the decedent’s will be final, settled, and completely declared by the instructions, the failure to complete his design of executing a more formal draught will in general not be important. But the paper propounded must be, first, his final determination at the time, as to the disposition of his estate. If his mind was not ttjen made up, the instrument cannot be his will ; for we cannot conceive of the exercise of will, where a party has not made up his mind. 2dly, it must also be complete, that is to say, it must contain the whole will of the testator ; subject however to this modification, that if a particular bequest stands altogether independent, it may be sustained, although other intended bequests have not been reduced to writing before the testator expired. As where he directs a slave to be given to A. and another to B. they being strangers to his blood, and the bequest to A. is reduced to writing, but the testator dies before that to B. can be so, the former will be good though the latter is void. But this can only be where what is not reduced to writing is not complicated with what is, for if it be, then the whole is void. As if the bequest be of a slave to A. upon condition, there, if the bequest be written, but the testator die before the condition is reduced to writing, the whole is void. Butler v. Baker, 3 Co. Rep. 31. So (I conceive) if, in contemplation of a distribution by *will of his estate among his children, the decedent directs so many slaves to be given to his eldest son, and so many to his second son, &c. and the first bequest is reduced to writing, and he dies before the others are or can be written down, the whole is void ; because all the bequests are so linked together that they cannot be separated without violence to the decedent’s intention ; for if the bequest to the eldest is held valid, he will have his full portion by the will, and will then be entitled to a full share of the estate undisposed of, as distrib-utee. The whole of the bequests thus complicated constitute, therefore, an integer; they must all be reduced to writing, or all will be void. And so too, I conceive, if land be devised to an only son, and slaves to the value of the land to an only daughter, the two bequests must go together. They must be regarded as a unit. Ror if that to the daughter is effectual, while that to the son fails, the daughter will not only have the slaves bequeathed, but half the land also, against the express wishes of the testator. It is true that if he execute such a will, and the execution be defective as to the realty, but good for personal estate, there is no remedy ; but where the paper to be set up as a will has in fact never been executed as such, and was not indeed designed identically to be the will; where it is proposed to set it up merely with the purpose of effectuating the intentions of the decedent, the impossibility of effectuating the whole, and the certainty of defeating his real wishes by setting up a part, is a conclusive objection to giving validity to that part. 3dly, it may safely be affirmed, I think, that if, when the deceased gives instructions for his will, which are written down, he declares that it shall not be his will until it is reduced to form and duly executed by him, the instructions themselves could not be propounded as a will. The case would be analogous to that of a nuncupative will, which is not good as such, if the testator at the *time declares that it shall not be his will unless reduced to writing. 7 Bac. Abr. 307. 4thly, if this be so, then it seems to follow that if a decedent give instructions for a will of lands, as well as personalty, and direct it to be reduced to form in order that he may execute it, it ought to be presumed that he did not design -the instructions to be his will, since they could not operate to effectuate his whole will: and Sthly, it would seem clear that where a decedent gives instructions in writing for a will of lands and personalty, the provisions of which are so complicated with each other that a part cannot be carried into effect without violence to the general design, it must be presumed he intends that the instructions themselves shall not be his will. Eor it is reasonable to suppose he would prefer that the whole should fail, rather than that the great purpose of his will should be defeated, and a gross inequality established among those for whom he intended equal benefit.

The application of these principles to the case at bar will inevitably lead to a decision against the will. For the circumstances of the case tend strongly to prove that the brief pencil notes taken by Parker, though made out from the conversation he had just held with the testator, and read over and approved by him, were intended to be qualified and rendered intelligible by the aid of Parker’s memory of that conversation — that they were not final instructions for a will, but short memorandums to draw the will by, assisted by the developments of intention just before communicated to Parker, and that if he had returned with the will written substantially in accordance with the notes, and with no other change than in the form of the paper, it would not have been executed by a rational testator.

Again, this paper, not being executed as a will of lands, is not the final determination of the testator’s mind respecting his estate. It is clear from the paper *itself that he designed to pass his lands, and it is therefore clear that the drawing out the will at length, and the due execution of the draught directed to be made, was not merely form, but it was substance. It was an act which he designed in order to render that will complete, which without it was incomplete. The realty and personalty throughout are so blended and linked together, that you cannot tear them apart without the grossest violation of the testator’s intention. Thus, all the estate real and personal is loaned to mrs. Rochelle during life. Then it is provided that Mary Prances and Martha pliza shall be educated and clothed. This of course is a charge upon the widow, as the whole estate is given to her. Now, the testator might very well have intended this charge upon his wife in respect of her enjoying both the lands and personalty, though it may be a very unreasonable burden, and one of which he did not dream, if she gets the slaves alone. So again, it is clear he had it at heart to keep the plantation and hands together : yet if this wfill is established, Ihe hands go to the wife during widowhood, and the land to the heirs. So again, the whole estate, in one event, is to go to his brothers’ children ; the boys to take the land, and the girls to have as many more slaves in their shares as would be equal to the value of the land. But establish this will, and the girls get the slaves to the value of the land, and. if the brothers’ children are the heirs of the testator, they will get half the land also. Can this be said to be the testator’s will ? Is it not plain that under the pretext of effectuating his will, we are called on to violate his every intention ? Is it not plain that we are invited to set up a paper as his will, which he did not design as such, which was in truth incapable of declaring his will, (since, for want of due execution, it cannot be read as to the realty,) and which he intended should be substituted by an instrument so drawn out and executed as *to effectuate all his intentions ? The very cases which have been cited shew, that where the effectuating what has been reduced to writing would conflict with the general scheme and plan of disposition, and be incompatible with the general intent, it cannot be regarded as the testator’s will. “ The rule,” says sir John Nicholl, “which I take to operate in every unfinished paper is this : Can the court infer, that by pronouncing for it, it will carry into effect what it collects, from all the circumstances of the case, to have been the deceased’s wish ? In that event it will be its duty to pronounce for it ; but surely not, if it sees reason to believe that by so doing, it will defeat or counteract, instead of giving effect to that wish.” Montefiore v. Montefiore, 2 Eng. Eccl. Rep. 343. And again, In the goods of Herne, 3 Id. 95, he says : “The presumption of law in every unfinished paper is, that the deceased never did intend it to take effect in its unfinished form; and that presumption is always held to be strengthened, when the paper, as in the present instance, purports to dispose not only of personal, but also of real property, as to which it clearly must be insufficient.” In such case indeed the presumption may be rebutted by testimony of the recognition of the paper as his will, notwithstanding its incapacity to pass lands ; but without such evidence, the presumption against it must prevail. Por “the presumption of law is against every testamentary paper not actually executed by the testator, and so executed as it is to be inferred, on the face of the paper, that the testator meant to execute it.” 2 Eng. Eccl. Rep. 342. And this presumption, we see, is strengthened where it purports to dispose of real estate. Now in the present case the presumption, instead of being repelled, is strongly sustained. The whole testimony proves that the paper in question was never designed by testator or scrivener to be the will itself. *It is distinctly declared to have been a mere memorandum by which the will was to be written ; and the testator said of it, that he had given to Parker the heads of his will for the purpose of writing his will, and that Parker was to be there on friday with his will. As his disease advanced and he felt his end approaching, his anxiety for the arrival of Parker became extreme ; he stated that he was surprised he had not come ; that if he would come and fix his business, he would die perfectly satisfied. He added, indeed, that his will was not all the business he wanted with him, but that he must go and leave it all, for that he should not live till night. I am perfectly satisfied from this testimony, that the testator looked to the execution of the will he had directed Parker to draw, as necessary to prevent his dying intestate, and that the memorandum was not in that form in which he purposed “that his will should be, as an operative testamentary paper.” See Jameson v. Cooke, 3 Eng. Eccl. Rep. 38. To me indeed it appears perfectly clear that a memorandum for a will purporting to dispose of real and personal estate, so blended as to b‘e incapable of separation without thwarting the general intention, never can be considered as a good will, in the absence of execution or express recognition of it as such. Eor it is conceded that the paper propounded must contain the fixed and final determination of the deceased, and that the paper, as admitted, must effectuate and not thwart his wishes. But that can never be where the devises of realty and personalty are blen’ded together, and so dependent on each other, that the effectuation as to the personalty, and the failure of the will as to the realty, must altogether defeat the objects of the testator. Such is the case here ; and I am therefore clearly of opinion to reverse the sentence, and to refuse the probate to the memorandum, even as a will of personalty.

*The other judges concurring, judgment reversed. And this court proceeding &c. is of opinion that the said paper writing is not the true last will and testament of the said William E. Rochelle deceased. Therefore, motion of defendant to admit the same to record overruled, with costs in circuit court.  