
    Bates v. Holman, Executor of Bates.
    April, 1809.
    Wills — Revocation—Codicil—Case at Bar. — A testator made a will, in due form of law, to which he afterwards subjoined a codicil: he then made a second will, and annexed a postscript to it, by which he “revoked all former wills,” and signed the postscript; the second will was cancelled by cutting his name out from the body of it, but leaving the postscript with his name subjoined to it. This paper was carefully preserved by the testator, as also his first will; both of which were found after his death; held that the postscript to the second will was a substantive revocation of the first will, and that the cancelling of the second will did not necessarily cancel the postscript also, so as to set up the first, as the will of the testator.
    Same — Same—Parol Evidence. — Parol evidence is admissible in such cases, to shew the situation oi the testator, and quo animo, the cancellation was made.
    Charles Fleming Bates, attorney at law, at that time an unmarried man, on the 16th of November, 1799, made the following will: “It is the earnest request of C. F. Bates, that George Holman (his most particular friend) will take upon himself the burden of the execution of this instrument, which is intended for the last will and testament *of the subscriber, and that he will hold all the property of which the subscriber may die possessed, and not otherwise disposed of, in trust for the benefit of the family of Thomas F. Bates, and principally for the benefit of Caroline M. Bates, and under her own free and particular control, so long as she continues the wife or widow of the said Thomas F. Bates ; and if she should marry again, and be in need of any thing, then to such proportion as the said trustee in his judgment shall think right, not exceeding one-third of the estate of the subscriber; and at the death or marriage of the said Caroline, the unappropriated remnant, if any, to — equally among the children of Thomas F. Bates, except that Isaac, my slave, shall be free, at all events, at twenty-one years of age; and my slave Charlotte shall also be free at eighteen years of age. And if George Holman carry this into effect, he shall use his discretion as to the mode of making the estate command the greatest value, and shall have ten per centum for his trouble. In testimony whereof I, Charles F. Bates, have hereunto affixed my name and seal, at Belmont, this sixteenth day of November, one thousand seven hundred and ninety-nine.
    (seal.) “Ch. F. Bates.”
    On the 23d of September, 1801, he annexed a codicil to the above will, in the following words:
    “Codicil.
    “I wish the balance of the purchase money of Belmont to be raised by my said executor, as soon as possible, from the debts due me, and a title made to my said executor, as trustee, in like manner as of the personal estate: and, as to Isaac and Charlotte, I revoke to, preceding part of my will, but not as to any thing else. “September 23d, 1801.
    (seal.) “Ch. F. Bates.”
    On the 2d of September, 1803, he made another will, as follows:
    *"‘The last will and testament of Ch. F. Bates, written with' his own hand, at Richmond, the second day, of September, 1803.”
    “My most ardent wish is to render" my mother happy and easy during life; also my father, and all his children, as long as they or any of them continue in his family, remain single, or, in the discretion of my executor, shall need assistance; for effecting which purpose, I appoint- my executor trustee of all my estate, both real and personal, to manage at his discretion, in such manner as he think best; but not to be at liberty to sell my real property, or any part thereof. I desire all debts which appear due by my books to be paid, and no others, unless proved by law. After the death of my father and mother, and the arrival to age of twenty-one years of my brother Edward, which ever shall happen last, I desire the whole of my estate not otherwise particular**#***se¿,  t0 g0 to my brothers and *##**##(  equal proportions, and if any be dead, to the proper heirs of the deceased, I desire that Edward Bates be schooled at my expense, and brought up at the discretion of my father, on my estate. I give my two sisters, Anna and Caroline Matilda, one hundred dollars each, to be paid as soon as my executor shall be able to pay it, without injury to my creditors. If my sister Margaret shall be single at my death, .or married to a man worth less than three thousand dollars, I give her one hundred dollars, to be paid as soon as possible.
    “I have a daughter called Clemensa, at Walter Keeble’s, in Cumberland, I declare her to be free to every right and privilege which she can enjoy by the laws of Virginia. I most particularly direct, that she be educated in the best manner that ladies are educated in Virginia. I give' *her my lot in the town of Carters-ville, and three hundred dollars, to be - laid out at interest, renewed yearly, and paid when she marry or come of age. I appoint George Holman my sole executor, and I trust he will not refuse to act.
    “I revoke all other wills heretofore made by me.
    “C.-E. Bates.”
    [Here the testator’s name was cut out, nearly in the shape of a coffin, leaving some parts of the letters visible.]
    These two wills, and the codicil to the first, were proven to have been wholly in the hand-writing of the testator.
    The first will and codicil was folded up in the form of a letter, sealed with three seals, and addressed to “Caroline M. Bates,” which was the name of the testator’s mother, with whom it was deposited.
    The second will was folded up. and indorsed “C. E. Bates’s will,” and was laid away smoothly in a small box, with other papers, and curious pieces of coin, and deposited in a trunk.
    Both the superscription on the first will, and the indorsement on the second, was written by the testator.
    The first will was written on a sheet of letter paper, and the whole of it is contained on the first page, except the words “trouble. In testimony whereof I, Ch. F. Bates, have hereunto affixed my name and seal, at Belmont, this sixteenth day of November,” &c. After which follows the codicil, as above inserted, which does not occupy the whole of the second page.
    The second or cancelled will was written on half a sheet of letter paper, folded so as to form four pages of equal size. The will occupies the whole of the first and second pages, and concludes so near the bottom of the second page that there is not more than room enough to write the name of the testator, and the postscript; which last appears to be written with rather a smaller hand, and with the lines closer together, than the body of'the will. The will and the ^postscript seem to be written with the same pen and ink. In cutting out the name of the testator, the letters and words which occupied the places in the original on the opposite side of the paper, now marked with stars, were also cut out.
    The first will, with the codicil annexed, was offered for probate in the District Court of Richmond, by George Holman, the executor therein named; which was opposed by Mary Heath Bates, widow of the testator, who produced the second will with the postscript, as a revocation of the first. The District Court established the first as the will of Charles E. Bates, from which judgment an appeal was taken, by the widow, to this Court.
    In addition to the testimony arising - from the face of the papers, a variety of parol evidence was introduced, in the Court of Appeals.
    It was admitted that Charles E. Bates was married on the 28th of May, 1806, and died on the 30th of May, 1808.
    Edward Bolling, a witness, proved, that about three or four weeks before the death of the testator, he was in his company, and the conversation turned on the subject of wills. Mr. Bates said it was inexcusable for a man not to keep a will by him, particularly a man in his situation; that he was determined not to be without one manjr days; 'that no business should prevent it; and that he had rather die intestate, than not write his will himself. In answer to interrogatories, the witness further stated, that this conversation took place at Mr. Bates’s own house and that Mr. Bates had had a child born during his marriage with the present appellant, but that he had been informed it was born dead.
    William Gray, another witness, was at the house of the. testator about twelve or fifteen days before his death ; he was then in good health, and requested the witness to walk with him to the family burying-ground, observing, at the same time, that he wished to consult him as to the best mode of inclosing it. While at the graveyard, a conversation ensued, as to the usual ceremony at the burial of the dead ; when the testator observed, that he was pleased *with the masonic, and wished to be buried in that way. The witness asked him whether, if he should be the longest liver, he should take notice of what he had said, and cause him to be buried with those ceremonies. He replied no; it was unnecessary, as he intended to leave instructions to that effect in his will.
    Being interrogated, the witness said, that the testator did not say whether he had a will by him or not; that his child was born in his life-time, but it was always understood to have been born dead; that the cancelled will was found in a little box, in a trunk, carefully laid away with other papers, in which box there were also several curious pieces of coin, of gold, silver and copper; but there was no other circumstance inducing an opinion that it was carefully laid away, except that it was smoothly placed in the situation above mentioned; that the testator was one of the most precise and methodical men in the world; that, during the early part of his illness, the witness believed him to have been in a situation to have dictated a will, though not to have written it himself; but in the latter part of his illness he did not believe him to have been capable, being sometimes deranged, and talking rather wild; that the testator expressed no wish, in the hearing of the witness, to make a will, during his illness, in the early part of which he did not appear to be very sick, but was so af-terwards; that the witness had been called on, in his neighbourhood, to -write one will, and that very eminent counsel resided about ten or twelve miles from the testator; but that he had heard the testator say, that he preferred writing his own will; that the trunk, in which the cancelled will was found, was such as is usually kept in a house, being larger than a travelling trunk; that the witness had no reason to suppose the testator apprehended immediate death, in the early part of his sickness, as he did not appear to be very ill; and, that during the whole of his illness, he never said any thing, in the presence of the testator, about his having a will, or his wishing to make one.
    ^'Winifred Heath, another witness, was at Mr. Bates’s, during his last illness, and heard him express a wish that he had a good will; at other times, he said he wished some person could make him a good will. In a conversation between the witness, and the mother of the testator, about his illness, Mrs. Bates said, she wondered if Charles had a will, to which the witness replied, she had heard him say that he wished he had a will. His mother observed, that he used to keep a will by him, before he was married; that he had made one and given it to her to keep, and that, afterwards, he took it from her, but whether he returned it or not, she could not tell. He then made another will, and g'ave it to his mother; and after his marriage, as she told the witness, (to the best of the witness’s recollection,) he asked her for it, and took it and cut his name.out. At another time, her son Charles said, mother, are you sure you gave up that will? and she answered, yes 1 Mrs. Bates, then pausing, turned to her daughter Sally, and said, Sally, are you sure that I gave up that will? and she answered, yes, mother, you did.
    On being cross-examined, the witness said, that the above conversation passed during the last illness of the testator, who was sick for eight days only; that he was, at that time, extremely ill, and not in his senses; that he was a very affectionate son, but the witness had never heard him say any thing about making a provision for his mother; that he was often delirious, but not so when he made the observations about his will, which was about the middle part of his illness; that the day after the death of the testator, a conversation took place between Mrs. Bates, the mother, and Mrs. Bates, the widow, when old Mrs. Bates asked her son’s widow what she intended to do? whether she intended to administer on the estate? To which she replied, that she did not know, but would consult her friends. Old Mrs. Bates said, that she wished Charles had made a will; and her daughter-in-law said, that the law provided, and she would have her’s during her life, and after she was dead she would not want it. Old Mrs. Bates said, it would have *been more satisfaction to have had it, to do as she pleased with it; that old Mrs. Bates was with her son the greater part of his illness, and bore his death with great fortitude; and that his death was not apprehended till about two days before he died; that Mr. Bates’s child was born about six or seven weeks before his death, and was born dead.
    William Miller, another witness, was present when the first will was found. It was found by Miss Matilda Bates, in a part of the house occupied by her mother, old Mrs. Bates, and brought into the room open, where she and the witness were. On Miss Matilda’s handing it to her mother, she asked what it was? and was told it was a will. She then asked her daughter what she handed it to her for; and, looking upon it, let it drop from her eyes. The witness did not know by whom the seals of the will were broken, but they were so when the paper was handed by Miss Matilda to her mother; that old Mrs. Bates appeared to be much affected when she saw the will, and seemed as if she would faint, and one of her daughters stepped up to her and fanned her; but the witness could not tell whether this appearance was the effect of surprise, of satisfaction, or of grief. This will was found after administration had been granted on the estate, and after the other will, with the name cut out, had been discovered.
    William Clarkson, another witness, proved that the child Olemensa appeared to be an object of the testator’s affection; that he put it with the witness to board, on'the last day of October, 1805, and it was then living at the house of the witness; that the testator furnished it with clothes, and reg-ularljT paid its board; that when he brought the child to the witness’s house, he told him that her father’s name was George Alexander Stevens Trueheart; that she was then about four years old, and when she was eight he intended to send her to Bethlehem College, in Pennsylvania, till her education should be as complete as any lady’s in *the country, and that afterwards he would make her fortune at least five hundred pounds.
    Frederick Woodson, was a near relation of the testator’s, and had had repeated conversations with him on the subject of his wills, until a short time before his death. In the spring of the year preceding his death, he was at the house of the witness, and speaking of his wills, he observed, that he had a will, which he wrote many years ago, but that he did not like it, and would make another in a very short time; that he was at the house of the witness monthly, or oftener, having usually lodged there while attending an adjacent Court, in which he practised the law; and that the latter conversation was shortly before his death. He told the witness, that he did not approve of the will he had, and, in making another, he meant to make his mother independent, in some degree; he meant to give her something at her own disposal, but did not tell the witness what it was. This was one among several conversations had with the witness about that time, and arose from his finding fault of the testator’s conduct with respect to his mother; in not taking that care of her which he ought to have done, as the witness had been informed. It was a kind of admonition or reprimand from the witness, which he often repeated.
    In answer to interrogatories, the witness said, that he understood from the testator, that his. second will was can-celled, and that his first will was then in existence, and in the keeping of his mother, but that he did not like it; that one reason for his disapproving of the will, was, that it did not sufficiently provide for his mother; the other was, that the property was in some measure incumbered, which the witness understood, from hearing the will read, was the control given over it to the executor; that when he heard that Charles F. Bates had died intestate, he supposed the will had been destroyed; and never had any conversation with any of the family about it, till after it had been found; that he was induced to give the reprimand to his relation, from having heard, that, of late years, and since his marriage, *he had not treated his mother well; that he understood, from the testator, that his second will was destroyed, but not in what particular way; that he was informed of this, before the conversations last had on that subject; and that he understood him, that his first will was in force, and in the keeping of his mother.
    Darner Bradshaw stated, that, in May, 1805, when Thomas F. Bates, father of the testator, died, the witness was in company with the testator, who informed him that he had made a will, taking care of his mother. He repeated the same declaration, in the month óf ífebruary or March, before he died. What led to the' last conversation was some difference which had taken place in the testator’s family; when he told the witness how much he was disturbed; and that he had made a will, and taken care of his mother; and that all the people in the world should not prevent it.
    Charles Hopkins had lived in the family of Mr. Bates as late as the December preceding his death. In consequence of the will of the witness’s father, the conversation turned on the subject of wills. Mr. Bates told the witness that he had, for a number of years, always kept a will by him and he always condemned it in others not to keep a will by them. The witness had had other conversations with him to the same effect; and understood him as having then a will by him.
    Christopher Anthony, the last witness introduced, had had a conversation with Mr. Bates on the subject of his will, but could state nothing as to the time with certainty. Mr. Bates mentioned to the witness that he had always kept a will by him, and told him whom he had 'ippointed his executor, w.ho was Major Holman, named in the will produced.
    On being interrogated, he said, that nothing else material passed betw'een him and Mr. Bates, on the subject, except that he said he should not die intestate. The witness had *been acquainted with Mr. Bates for about seven years, and thinks this conversation took place about the time of his marriage, whether before or after, the witness could not say.
    This cause was very elaborately argued, in November, 1808, by George K. Taylor and Hay, for the appellant, and by Call, Wirt and Randolph, for the appellee; and again in April, 1809, by the same counsel for the respective parties, with the addition of Wickham, for the appellant. To notice the whole ground taken by counsel, in argument, in commenting on the evidence, and animadverting on the situation of the testator and his connexions, from which an inference might be drawn whether he meant to leave a will, or to die intestate, would of itself form materials for a volume. It must suffice briefly to mention the leading points of law, relied on by both parties, with the authorities cited to support them.
    For the appellant, and in support of an intestacy, it was contended, 1st. that the postscript annexed, to the second will was, of itself, a substantive revocation, in' writing, of the first will, within the meaning of the act of Assembly, which requires nothing more than a written declaration, as one of the modes of revoking a will, and that the care with which C. F. Bates preserved this paper, it being deposited among his most curious coins, when he could as easily have destroyed the whole paper, as cut his name out of a part, was conclusive proof that he meant it to operate as a revocation of his first will.
    2. Admitting the second will to have been wholly revoked, still, although it might be true, in general, that the cancelling of a second will would set up the first, yet the rule did not apply where the second will contained a clause of revocation, and that parol testimony, of the intention to revoke, was inadmissible. On the part of the appellant the following authorities were relied on: Powell on Devises, 549, 551; *Gowp. 53, in Burtonshaw v. Gilbert; Toller’s Daw of Executors, 18; Doug. 39, in Brady v. Cubitt; 3 Call, 334, Yerby v. Yerby; 2 East, 530; Kenebel v. Scraft'on and others; 4 Ves. jun. 448; 5 Term Rep. 50; Doe, ex dem. Lancashire v. Lancashire; Toiler, 19; 1 Bos. & Pull. 577; Good title, ex dem. Holford et al. v. Otway; 1 Saund. 277a, note; 3 Ves. jun. 650; 5 Ves. jun. 664; 3 Atk. 798; 3 Com. Dig. 9; 7 Bac. Abr. 755; Gwil. edit. Powell on Devises, 449, 535, 666; 2 Johnson’s N. Y. Rep. 31, Jackson, ex dem. Coe and others, v. Kniffen ; Roberts on Stat Frauds, 465; 3 Atk. 552.
    For the appellee, and in favour of the first will, it' was insisted, 1st. That the second will and postscript annexed, was one entire instrument, made at the same time with the will itself; was usually inserted in all wills as a mere matter of form; and that, by cancelling the second will, the first was set up of course. 2. That it made no difference whether the second will had a clause of revocation or not, the opinion of Powell to the contrary notwithstanding, which was not supported by the authorities cited by him; and that the preservation of the second will, by the testator, was probably the mere effect of singularity; for if he had really intended to revoke the second will, he, being a lawyer, would have done it by some act less equivocal than by a postscript, consisting of nine words only, annexed to a cancelled will; and that parol evidence was clearly admissible, to shew the intention to revoke. The authorities relied on by the appellee’s counsel, were the following: 4 Burr. 2512, Goodright, ex dem. Glazier v. Glazier, as expressly in point; Doug. 40, per Buller, J., in Burton-shaw v. Gilbert, 2B1. Com. 449, 1 P. Wms. 343; Onions v. Tyrer, Loft. 575, in Har-wood v. Goodright, 1 Ves. 187; Willet v. Sandford, 2 Ves. 243; Fuller v. Hooper; Roberts on Stat. Frauds, 38; 6 Cruise’s Digest, (Riley’s edit.) 80, 85.
    
      
      Tlie principal case Is cited in foot-notes to Glasscock v. Smither. 1 Call 479; Yerby v. Yerby, 3 Call 334. See monographic note on "Wills.”
    
    
      
       The letters wanting- are “ly aispo.” They were cancelled, by cutting out the name of the tes--tator on the opposite side of the will. — Note in Original Edition.
    
    
      
       The words “sisters in,” are supposed to have been originally inserted, but cut out, by the same act which produced the obliteration above mentioned. — Note in Original Edition.
    
    
      
       Rev. Code, v. 1, c. 92, s. 8, p. 160.
    
   JUDGE TUCKER

delivered the following opinion, on the first argument.

*This case has been very ably and elaborately argued by the counsel on both sides. A great deal has been said upon the evidence, and not a few remarks have been thrown out on the conduct of the parties. The testimony in my opinion may well be reconciled: all the witnesses appear to be persons of clear understandings and respectable characters: they all speak of conversations with the testator at different times, and in different places, and all those conversations (except the few words which one of the witnesses heard him say during his last illness, expressing a wish that he had a good will, or that he had somebody to write a good will for him) happened while he was in perfect health, and in the prime of life; although, as it turned out, he was within a few weeks of his grave. There is nothing in the testimony, or in the evidence, as X conceive, to impeach the conduct or character of any of the parties; a circumstance which I mention for the sake of those who may have been hurt by the sarcasms and insinuations which were more than once indulged in the argument of the cause; and which evidently have had the effect of wounding the feelings of respectable persons, without advancing (at least in my opinion) the cause of their clients respectively. I

The counsel have also favoured us with a discussion of the whole doctrine, concerning implied revocations, and republications of last wills and testaments, and I am happy to make them my acknowledgments for it. I have turned to the numerous cases and elementary treatises they have cited, and have endeavoured to draw from them all the information which may enable me, as well on future occasions as the present, to form a correct judgment on that important subject. Many of these cases turn upon particular points in the jurisprudence of England, which no longer exist in this country. It may therefore be doubted how far that particular class of cases, which are founded upon the strict words of the statute of wills in England, may be applicable to similar cases in this country, since our last statute of wills has been in force; by which a provision materially different from the English statute has been introduced.

Another numerous class of cases, arising *out of the different expressions used in the penning of the 5th and 6th section of the statute of frauds and perjuries, 29 Car. II, concerning the execution of wills of land, and the revocation of them, as noticed by Mr. Douglass, at the end of Right v. Price, Doug. 232, and by Mr. Powell, in his Treatise on Devises, vol. 2, p. 249, 2d Lond. edit, and by Mr. Roberts on Frauds, p. 460 to 465, I think are not likely to be considered as leading cases in this country; since the 4th section of our statute requires a revocation of a will of lands to be executed in the same manner as a devise thereof. And this Court have already in the case of Glascock v. Smithers and Hunt, 1 Call, 479, given to the 7th section, which relates to revocation of a will of chattels, such an exposition as will probably stand in no need of any comment, support, or contradiction from foreign authority. The only class of implied revocations, which can in any manner be applied to this case is, that where the revocation has been made Dy some declaration in writing, neither changing the estate of the testator in the lands, or other property, nor executed animo revocandi, as in the case of Beard v. Beard, 3 Atk. 72, in which Lord Hardwicke held a will of personal estate to be revoked by a void deed made to the testator’s wife.

So where a testator devised lands to his sister in fee, and afterwards by indenture let the same lands to her for sixty years, to commence after his death. This was held to be a revocation in toto, and not pro tanto only. Coke v. Bullock, 2 Cro. 49, cited Powell on Devises, vol. 2, 227. So an agreement for a partition of lands, hold as parceners, has been established against a conveyance and against a devise, ratifying and confirming that conveyance, although such agreement was executed in the presence of two witnesses only: the Lord Chancellor declaring the devise to be revoked by that agreement. 5 Ves. jun. 648, Knollys v. Alcock. The last case is perhaps referable to that class, in which, it has been held, that the least change or alteration, in the nature of the estate, though not in the testator’s interest or property therein, has been construed to operate as a revocation.

*If Courts have been thus favourable to the doctrine of implied revocations, can any good reason be assigned, why they should set their faces against express revocations, made according to the very terms and directions of the statute? For, it is admitted that if the first will of Mr. Bates be revoked, it is by virtue of an express revocation in writing, wholly written by himself, and signed by himself, or not at all. 'What then are the facts, as to this naked point?

Charles F. Bates made his will in 1799, to which he added a codicil about two years after. In September, 1803, he made another will, differing very considerably from the first. To this will he subscribed his name. Afterwards, as is evident from the paper itself, upon the same paper, and somewhat below his name, he added these words, on one side of the paper, like the postscript to a letter: “I revoke all other wills heretofore made by me:” to which he again subscribed his name, which still remains uncancelled and unobliterated.

This second will, with the declaration in writing thereto added, is found after his death, in a small box, with other papers, and some money and coins, carefully put away and deposited in a large trunk, in his house. He had with great. apparent care cut out his name first subscribed to the will, thereby cancelling that to all intents and purposes. But for what reason, or from what motives, he left the declaration of an intention to revoke all former wills, standing unobliterated, and his name still remaining thereto, we are not told, nor is there one title of evidence, which relates to that particular fact. The declaration itself is as perfect at this moment, as it was the moment he had written and subscribed his name to it. No man can deny that at that time he intended this declaration to operate as a revocation of his first will. No man can say that it does not now appear in as palpable and intelligible a manner as it did then. There is no evidence of what passed in the testator’s mind when he cut out his name in one place, and left it standing in another, but the paper itself. That, and that only, must speak his intention. If it had happened, that in his last illness he *had directed this paper to be brought to him, had declared himself dissatisfied with its contents, generally, and had .desired any friend who was present to tear it to pieces, or throw it into the fire, and that friend, instead of doing so had said, “itwill be sufficient to cut out your name,” and had done so, in the testator’s presence; I admit that such parol evidence as this would have been proper to explain that which might need explanation; as where a testator should throw the ink, instead of the sand, upon his will, through mistake: but in the present case we have no testimony whatsoever that bears upon this particular fact. I therefore reject the whole of it on both sides, as having no relation whatsoever to that point, upon which the cause, in my opinion depends. I consider this declaration, then, wholly written, and separately signed by Mr. Bates, as an express statutory revocation of all former wills made by him, utterly independent of, and unconnected with, his second will; and by the maker left in full force, at the time of can-celling that second will, and remaining in full force at the time of his death.

But an objection was taken to the want of a date to it. Although the preceding paper is void, as a will, being cancelled, it furnishes a direct evidence as to the date of this instrument, that it was posterior, not only to the first will, but that the execution of it, at least, was posterior to the second will. It bears date September, 1803. Suppose this act of revocation had been written on the back of a letter bearing the same date, or having a postmark of the same date; would a Court shut their eyes against such evidence, though there were no date to the instrument itself? I conceive not. A Jury, upon an issue of devisavit vel non, would most certainly find the revocation as made at or after the date of the letter, or the postmark; and I think this Court may do the same, without sending the parties to a Jury.

Upon these grounds I am of opinion that the judgment of the District Court, admitting the first will to record, ought to be totally reversed.

* JUDGE ROANE

was of a different opinion, and gave his reasons at large, for affirming the judgment of the District Court.

JUDGE FLEMING

concurred with JUDGE TUCKER, and was for reversing the judgment of the District Court.

But a rehearing being asked for by the counsel for the appellant, on the ground of novelty and difficulty in the case, it was granted by the Court. On which motion, JUDGE TUCKER delivered the following opinion:

JUDGE TUCKER. I am not surprised at the present motion, and still less am I disposed to take offence at it. It is very natural for parties litigant to believe their own cause just; still more so where they had a judgment in their favour; and most of all, perhaps, where there has been a division in the opinions of the members of the last tribunal to which they can appeal. All these considerations have, no doubt, had their weight in bringing forward a motion for a rehearing of this cause, decided not without great deliberation by all the members of this Court, and by none with more than by myself. I have given that opinion which my best judgment and consideration have enabled me to pronounce, and so thoroughly satisfied am I with that opinion, that nothing which I have heard in opposition to it has hitherto 'shaken it, in the smallest degree, nor would any apprehension of the censure of the bar, or the wise and good in this, or any future age, induce me to grant the motion. To that tribunal, and to a still higher, whenever called before it, I trust whatever may be the errors of my understanding, I shall exhibit a heart immaculate (in my public conduct) as an angel of light. No consideration of that kind either hath, or will ever have, any weight with me. The only circumstance which induces me to grant the motion is the present constitution of this Court; the possible operation of law upon that constitution, whenever the Court, as at present organized, is full; and the absence of a ^highly respected member of it, who may possibly, at the next term, be able to aid us with his counsel. And should it fortunately so happen, that he should be then well enough to assist our deliberations, although no change of opinion should take place among any of the members now present, his opinion will either confirm the judgment which has been already rendered, or affirm that of the District Court. In either event, I shall be perfectly satisfied, neither feeling any bias towards any of the parties, to all of whom I am a perfect stranger, nor that pride of opinion which cannot brook a decision against it.

I shall only add, that I hope the whole report of this case, so far as it has proceeded, will be published among the proceedings of the present term. For, it is by no means my wish to shrink from censure, if the opinion I have delivered shall be found to merit it.

JUDGE ROANE verbally declared that as he had differed in opinion with the other Judges, he wished to be excused from giving an opinion on the motion for a rehearing ; but would refer the question to the decision of the other members of the Court.

XJUDGE EEEMJNG expressed his willingness to hear the cause re-argued.

After the re-argument at April term, 1809, the Judges again delivered their opinions.

JUDGE TUCKER. In the argument of the cause at the present term, it has been insisted on the part of the appellees, that if the Court feel any difficulty upon the fact of revocation, they ought to remand the cause to the inferior Court, with direction to impanel a Jury to try an issue of revo-cavit vel non, to be made up between the parties.

To this it has been answered by the counsel for the appellants, that the probate of wills was, in England, a matter of ecclesiastical cognisance, and the proceedings therein originally derived from the civil law, and not from the common law. That in these Courts the trial has always been per testes, and not by a Jury, to which they were perfect strangers. That our statutory provisions and regulations for a century past are conformable to the proceedings in those Courts; vide E. V. 1711, c. 2, 1748, c. 3, 1785, c. 61, 1794, c. 92. That the provision contained in the 11th sect, of the last mentioned act presupposes the will, whose validity is contested, to have been proved and admitted to record, in the same manner : and that the same is confirmed by sect. 12, which provides, “that on all trials by a Jury to be had according to the provisions of the preceding section,” the certificate of the oath of the witnesses at the time of the first pro bate, shall be admitted as evidence, &c. These reasons are perfectly convincing to my mind, that a County or other Court, (though it may also have common law jurisdiction,) when sitting as a Court of Probate, must proceed according to the ancient and invariable course of the civil law; and cannot avail themselves of their common law jurisdiction, in common law cases, to pursue or to direct any other course whatsoever. For it is the cause, not jurisdiction of the Court, which marks out the course of proceedings; and it would be no less a violation of the principles. of jurisprudence, *for the Court to refer the execution of a will, or of a declaration in writing, purporting to be a revocation of the same, to the decision of a Jury, instead of deciding it themselves, than it would be for the Court, sitting as a Court of common law to undertake to try an issue on a matter of fact, joined between the parties. Nor do I conceive this Court could mistake its own powers more in directing such a course of proceeding as just mentioned, to be had in a common law case, than by directing a Jury to be impanelled, as proposed, in the present case.

With respect to the merits; I have reviewed the evidence, have deliberated on the arguments of counsel, and revised and considered the opinion I formerly gave. And finding no reason to' change it, in any respect, I can only repeat, that I am of opinion, as formerly, that t’he judgment of the District Court be reversed, &c.

JUDGE ROANE. On the 16th of November, 1799, Charles F. Bates executed, at Belmont, the will now in question. This will makes ample provision for his mother, and his father’s family. The whole body of the will, except the word “trouble,” is written on the first side of a sheet of letter paper, and in a fair and regular hand; whereas the concluding sentence, “In testimony whereof, I, Charles F. Bates, have set my hand and seal, at Belmont, this 16th of Nov. 1799,” is written in a more running and less correct hand. From this circumstance I infer, that the will had been previously and deliberately prepared by him, and was subsequently executed, at the time and place above mentioned. On the 23d of September, 180J., he executed a codicil respecting the purchase-money and title of Belmont, and, revoking his will, as to two negroes directed to be mami-mitted, but not as to any thing else. This codicil, like the will, is also dated (under the name, and above the sig-natura of the testator) “23d September, 1801.” This codicil is sealed by the testator. It is also headed by him thus; “Codicil;” whence I infer that, when the testator intended to make a codicil he would denominate it one. It *makes material alterations in the will; and so comes properly within the definition of a codicil. It bears date near two years after the will, and, like the will, appears to have been written at leisure, and with a steady hand. It follows at a reasonable distance from the will on the same side of a sheet of paper, where there was ample room to insert it; whereas the postscript in question is with difficulty foisted in, at the bottom of the quarter part of a sheet of letter paper; a place scarcely adequate to contain a sentence omitted through mistake, to be inserted in the will, which it immediately follows, and certainly not spacious enough to have been selected by any person, however niggardly in his temper or disposition, (of which, in relation to the testator, there is no evidence whatsoever,) for the insertion of a codicil, or a subsequent and independent declaration revoking the will in question.

This will and codicil shew a firm and steady purpose, in the testator, existing for a gréat length of time, to provide for his mother and his father’s family; a purpose which was never renounced by him up to the time of his death, as is abundantly proved by the testimony: they shew also, another circumstance, very important in this case; and that is, that, when a codicil was executed at a time subsequent to the date of the will,, the testator thought it necessary to annex the proper date to that codicil; the omission to do which, in relation to the postscript in question, seems conclusive to shew, according to the testator’s own ideas on the subject, that that postscript was written at the same time with the will. This will and codicil, providing amply for the mother and familj*, as aforesaid, was folded up in the form of a letter, sealed with three seals, and indorsed, in the manner of directing a letter, “Caroline M. Bates.”

The cancelled will in question is folded up and indorsed by the testator, “C. F. Bates’s will.” It is not indorsed C. F. Bates’s will and codicil: whence the idea would seem to be repelled, of its being more than one instrument. The same inference also seems to result, from heading and ^commencing the instrument thus: “This last will.of Charles F. Bates, written with his own hand, at Richmond, the 2d day of September, 1802:” and there is no other date to it than the above; there is none at the end of either the will or the postscript. I infer, from these circumstances, both the testator’s own idea that this writing all formed but one instrument; —his “last will and testament,” and that the date prefixed as above, ran through, and applied to both writings. It is a very reasonable and natural construction that a writing, without a date, immediately following one which is dated, will be taken to be written at the same time; especially if, from the contents of the last writing, it is evident it was meant to supply some defect or omission in the former: if, as in this case, the instrument only contains the mere formal and drag-net words of revocation used in almost all wills whatsoever; in that case one date is amply sufficient; for the writings are in fact, but one instrument. When to these circumstances, and especially the inference arising from the omission of a date to this postscript, or writing, (whereas one is annexed to the codicil to the established will as before mentioned,) we add the undoubted facts arising from inspection that the ink, appearance of the writing, and, even of the nib of the pen, seem precisely similar in the cancelled will and in the postscript; and that the smallness of the writing in the latter (which smallness also, is inconsistent with the idea of its being a distinct and substantive act of revocation) is accounted for by the want of room upon the paper, I am well satisfied that they were both written'at the same time: and, indeed, what is the postscript but a writing necessarily to be construed as a part of the will itself, it being nothing more than the formal declaration generally contained in all wills, and only put in after the signature of the main body of the will, because the testator had forgotten or omitted to insert it therein. It was added only through abundant caution by the testator. It is here to be remarked, that while the testator is proved to have spoken of a first and second will, he never spoke of a second codicil, *Or of any distinct revoking instrument. Thus, it is proved by Mr. Woodson, that the testator gave him to understand that his second will “was entirely destroyed,” and that his first will “was in force, and in the keeping of his mother.” This declaration of the testator is entirely inconsistent with the idea that the postscript did not fall together with the will; or that it was a subsisting and independent act of revocation. This postscript was not a codicil, because it neither adds to, nor diminishes from, the will to which it appertains, which forms the definition of a codicil; and because it is not headed “a codicil,” nor indorsed “a codicil,” nor ever mentioned or considered as a codicil bjr the testator: nor is it a distinct and substantial act of revocation; because an instrument of that character would have been more lengthy, particular, and explicit; it would not have been crowded in at the very bottom of the page, and in a small hand-writing; it would not have contained only the very sentence (and in the very words) which is usually added, and that only through abundant caution, at the end of a will before the signature of the testator. Being,’ therefore, neither a codicil nor a distinct act of revocation, and yet being something, it is undoubtedly a part of the will itself, omitted to be written therein, and afterwards written and resigned by the testator at the same time: the words “other” and “heretofore,” nec-cessarily attach it to the will which it immediately follows, and fix its writing and signing to have been at the same time with that of the body of the will. This postscript was therefore written at the same time with the second will; but, at any rate, it was written before the cutting out of the name of the testator from it. I infer this, incontestibly, not only from the foregoing circumstances, but because in using the term “other wills,” it recognises this cancelled will as a subsisting will at the time, which it was not after the name was cut away; the postscript was therefore added (at any rate) previous to this act of cancelling, if it was not (as I have no doubt it was) coeval with the will itself, and written with the same pen.

*As to the cutting away the name to the will, and leaving that to the postscript, I will not say, but that, in the absence of all testimony, or in the event of a preponderance of testimony, that circumstance might be considered as amounting to a revocation pro tanto only; the consequence of which would be, that the postscript would be left in force. But there is a good deal of testimony in this case, in opposition to that idea, the effect of which must be considered; such testimony being entirely admissible and proper, as I shall presently attempt to shew.

If this postscript had been contained in the body of the will, and there had been only one signature, it is evident that the cancelling the last will would clear the way for the first, which would consequently be established. The doctrine in the case of Glazier v. Doe, 4 Burr. 2512, is in point on this subject. It is true that that report of the case does not say, expressly, that the last will had a clause of revocation in it; but, in the case of Goodright v. Harwood, 3 Wils. 508, one of the counsel said that it had ; and this was not denied by the Court or opposing counsel. This also was the case in Burtenshaw v. Gilbert; and it was only the circumstance of the first will being can-celled, (and not on account of the existence of this clause of revocation,) that the will in that case was deemed to have no effect. As to such a clause of revocation, it also is liable to be revoked; and, being revoked, before the death of the testator, is as if it had never existed. In the sense and substance of the transaction, is there any difference between such a clause contained in the body of the will, and in a postscript, written at the same time, and considered by the testator as forming a part thereof; as forming, in fact, with the body of the will, but one instrument? A codicil “is reputed for part and parcel of a testament;” Swinb. 15, and will generally stand or fall therewith. This is equally the case, at least of different paragraphs of the same will, and this consideration, which could not have been unknown to the testator, (a lawyer,) will have its due weight, when we are considering quo animo the name was cut away in *ihe case in question: at the same time I readily admit that a codicil, or even one paragraph of a will, may be retained, while the will, or the residue of the will, as the case may be. may be revoked or cancelled. I consider this postscript, therefore, as not an independent declaratory act of revocation, (for no such declaratory act was ever, since the creation of the world, written in so few words on so small a space of paper, in the mere formal words of a common clause of revocation, or, in short, couched in the terms of an unsealed, undated, and paltry postscript,) but as predicated on the will then made, and a part thereof, and liable to stand or fall by that will’s being cancelled or suffered to take effect. There is no evidence (but to the contrary) that the testator meant to die intestate: but even considered as an independent declaratory act, written prior to the act of cancellation, it was still liable to revocation by that or any other competent act, and the question is, whether, even considered in that point of view, it was not revoked by the act of cancelling we are now considering.

As touching the question of revocation, there is no doubt but that parol evidence is admissible. It is admissible as well to shew that a complete defacing of the instrument, was not intended as a revocation, as that an act short of cancelling, defacing, burning, or obliterating, was so intended: the result, in both cases, will be governed by the intention, and not merely by the act itself. The case of the ink thrown upon a will by mistake, and which, although it obliterates and defaces, does not cancel it, is an instance of the first kind ; and the case of Mole v. Thomas, where the will being neither torn through nor burned, but both having been intended, was held to be revoked, is an instance of the latter. So any other equivocal act; equivocal as to a total or a partial revocation, is subject to be explained by similar testimony. Revocavit vel non is similar to the question of devi-savit vel non, and is a question of fact for the consideration of the Jury,

As this question respecting the admissibility of parol evidence in cases like the present, is very important, and, *in my view of the testimony in this cause, repels the presumption of revocation beyond a possibility of doubt, I will go into it -rather more at large.

In the case of Brady v. Cubitt, Bord Mansfield laid it down, that the presumption of revocation was liable to be rebutted by “every kind of evidence:” and Buller, J., said that implied revocations must depend on the circumstances at the time of the testator’s death; which circumstances, I presume, cannot be known without a resort to parol testimony.

In Wilcox v. Rootes, this Court, sitting as a Court of Probate, not only went into the whole question of implied revocation, and decided that the will was revoked by a subsequent marriage and birth of a child; (which ground of revocation could only have been proved by parol evidence;) but relied on evidence stated in the record, shewing that the testator, the night before his death, expressed a desire to make provision for the devisee ; whence was inferred the testator’s opinion and belief, that the will was not subsisting, but revoked. In that case, by way of exception from the general doctrine that marriage and the birth of a child operated as a revocation of the will, the appellee had shewn in evidence, that he was a rec-ognised natural child of the testator; and the parol evidence last mentioned was intended to do away any result arising from such ground of exception; so that there was a parol evidence, on both sides, and such evidence was commented and relied on bj' the Court. In the opinion of the Court, as delivered by the President, it is relied on in favour of the revocation, that the testator did not, after the birth of the child, “republish his will, or signify an intention that it should be established, or have any force or effect after that period,’’ but that his mind was inclined otherwise, as appeared from the testimony. If, in that case, (like the case before us,) after the supposed act ot revocation had taken place, the testator had signified an intention that the will should still operate or have effect, if he had acknowledged it as a subsisting will, the marriage and birth of a child notwithstanding, undoubtedly a different decision *would have been given by the Court. This case, however, is conclusive, both to shew that the Court of Probate can go into the whole question of implied revocation, and, in doing so, is at liberty to repel or support the presumption of revocation by parol evidence.

In the case of Warner v. Matthews, evidence was received, in opposition to the probate of a will, that a subsequent unfinished will was made by the testator; of many declarations of the testator shewing that he was not satisfied with the will before the Court; shewing the insanity of the principal legatee in that will; and that, since it was made, that legatee had also become very opulent, whence it was argued that the testator could not mean that will to stand: all this 'testimony was received and relied on without objection.

In Cogbill v. Cogbill, it seemed admitted by the counsel on both sides, that paiol evidence was admissible in cases like the present, and such evidence was considered and relied on by the Judges.

In Temple & Taylor v. Temple, the declarations of the testator, before his understanding became impaired, as to the manner in which he meant to dispose of his estate, and corresponding with the actual dispositions in the will, were relied on by one of the Judges to support the will, and overrule objections to the competency of the testator to make a testament.

In the case of Yerby v. Yerby, a man having children by a former marriage, devised his whole property to them; he after-wards married, and had children, and died without altering his will: on the question whether the will was revoked or not, it was proved by a witness (inter alia) “that the testator, in his last illness, refused to alter his will when proposed to him, saying he wished some alterations to be made in his will, and that, when he got well, he would make them.” The Judges, in delivering their opinions, all quoted and relied on parol testimony. The first Judge who gave his opinion said, that the will so far from being considered by the testator as revoked, as being no will, was considered as a subsisting will, but one which *he intended to alter; (this is precisely the case of the will in question —see Woodson’s deposition;) that this was proved by Abner Dobyns; that a reference to a will as a subsisting one rebuts the presumption of revocation; and that an intention to revoke a will, and, much less, an intention to alter one, will not revoke it; and relied on the circumstances, (proved in the cause,) in support of the will, that the testator declared that his first children should not be injured by his second marriage, and'that he intended the land he lived on, even after the birth of his last child, for the sons of the first marriage: another and ulterior ground was taken by this Judge on general principles; but the other Judges were silent on it; namely, that the will being in favour of children the subsequent marriage, and birth of children, did not import a revocation of it.

JUDGE Fleming

said, that presumptive revocations may be rebutted by expressions in a will, or by circumstances; and that in the present case th^re -was abundant evidence that the testator, when about to marry, declared it should not injure his first children, and that, even after the birth of a son by the last wife, he was. heard to say he did not mean to give him any land, but to give him an education and send him to sea, and that these circumstances repelled the idea of revocation, even upon the principles of the English law.

JUDGE CARRINGTON

said, that presumption may be rebutted by circumstances, and that here the testator spoke of a desire to alter his will, not to revoke it; added to which, the testator had said he did not mean to give his second children any thing, but to educate and send them to sea; and that these circumstances destroyed the idea of revocation.

JUDGE LYONS

concurred in the opinion, and the will was established.

I will dismiss this case of Yerb3* v. Yerby for the present; merely saying that it is full up to the case before us, in the *very point, and must overthrow the idea of revocation entirely, unless the witnesses, and particularly Mr. Wood-son, a man of the highest respectability, and whose manner of giving testimony (in the view of this Court) did him hpnour, shall be adjudged by us to be perjured.

I trust I have proved, by this detail, beyond the possibility of a doubt, that parol evidence of facts or circumstances; that declarations of the testator after the making of the will, and even before it, and up to-the time of his death; nay, even, in the emphatical language of Lord Mansfield, that “every kind of evidence” is admissible upon the question of revocation. The only desideratum is, whether the testator considered it as a subsisting will, or a revoked will at the time of his death. It is not material, if the former, that it was not a will entirely to his mind. The case of Yerby v. Yerby proves this expressly ; as also the case of Cogbill v. Cogbill, in which this Court established a codicil pro tanto, although the testator wanted to add something else thereto, which he did not live to effect: we established it as his codicil, as the Court did the will of Yerby, although neither of them were entirely to the mind of the testator, but he wished to alter them in both instances.

In pursuance of these principles, if, in the case before us it were proved, that the testator declared at the time of cutting away his name, that he meant thereby to revoke both the will and the postscript; and, in pursuance thereof, had cut out his name in the manner he has done; can any man hesitate to say, that the whole would not have been thereby revoked? In such case, an act which, standing singly, might be considered equivocal, as to the extent of the cancellation, would be explained and rendered certain, as to the intention of the testator, and consequently as to the effect of the act, by the testimony’ of his declaration at the time. In the case actually before us, in the absence of declarations made by him at the time, his intention at that period, in executing that act, may as well be established by his posterior declarations and admissions. These may be resorted to *either to shew that this cancelling was intended at the time to extend to the postscript, as well as the will, or that, at a subsequent time, this act was recog-nised and adopted by him in that enlarged and extended sense; that he, at such future time, considered the established will as a subsisting, and not a revoked one.

The foregoing cases abundantly shew, therefore, that it is not the mere act of cancelling itself, which determines the question: the cancelling or the revoking act only shews the intent of the testator to revoke or cancel; and where it is equivocal, its effect may be explained, narrowed, enlarged, or done away by the production of other testimony.

Having thus endeavoured to pave the way’, therefore, I will briefly consider the testimony before us. Hr. Woodson tells us that, in the February or March before the testator died, he was two or three times at his house, when the subject of both his wills was mentioned; that the testator informed him “that he had a will, which he wrote many years ago, but did not like it and would make another in a very short time, and that this conversation was a little before the death of the testator;” that the testator was not satisfied with this will, as being less favourable to his mother than he intended. This evidence shews the testator’s admission of a subsisting will; one indeed which he intended to alter, but which was still a will until it should be revoked or altered. (See Yerby v. Yerby, 3 Call, 384.) This admission repels the idea of the existence in force of the postscript In question; or, rather, admits that it was cancelled, as well as the body of the will: for, if it were still in force, as an independent act of revocation, the will of 1799 was destroyed, and was not a subsisting will; as the testator is proved to have considered it. This admission explains therefore the extent of the act, supposed to be equivocal, of cutting away his name from the cancelled will. In answer to a question, this witness also said, that he understood from the testator that “the second will was cancelled and the first will then in existence, and in the keeping of his mother, but that he did not like it.” In ^answer to another question, he said, the “testator spoke of having made a subsequent will and having cancelled it; and that the first will was in force, and in the keeping of his mother.” Nothing is said, any where, of the idea of any person, that there ever were more than two wills, or that there was any distinct declaratory and revoking act or instrument; — that discovery was reserved for the ingenuity of the appellant’s counsel; and, when the testator, long after the cancellation in question, considers the first will as in force, (which he could not have so considered if the postscript was a distinct existing act of revocation,) is not this conclusive to shew his idea that the cancellation was intended to extend, and, therefore, did extend to the postscript as well as to the will? This witness, Mr. Woodson, had frequent conversations with the testator on the subject; received from him similar answers at various times, nearly up to the period of his death; and the character and manner of giving evidence of this witness are entitled to the greatest attention. Mr. Bradshaw corroborates this testimony by saying that, in March, 1808, the testator told him, “he had a will, and that nothing should prevent him from taking care of his mother.” — Mr. Hopkins also confirms it, by saying that, in December, 1807, he understood from the testator, that he had a will; and for a number of years had kept a will by him.

This testimony, therefore, of several corroborating witnesses, and relating to different times and conversations, shews the uniform sense of the testator, long after the act of cancellation in question ; that the will now established by the judgment of the District Court was a subsisting will; and there is no witness to prove, that any other idea was ever held by him: it consequently determines the extent of the testator’s intention in relation to the act of cancellation, as coming from his own mouth, and when he stood entirely indifferent to declare the truth; and, with me, is equally conclusive with testimony going to establish his declared intentions as at the time of executing the act.

*This testimony, therefore, like the declaration proved, in Yerby’s case, to have been made by the testator in his last illness, that he had a will which however he intended to alter, thereby admitting that the will was not revoked by the second marriage ; or, on the other hand, like the admission by the testator in the case of Wilcox v. Rootes, saying, on the night before his death, that he had a desire to make some provision for the devisee, that the will formerly made in his favour was revoked, or did not exist; this testimony, as in those cases, proves beyond a doubt, that the testator, long after the act of cancellation, admitted, by these expressions, that the first will was not revoked, but was still subsisting, and consequently that the act •of cancelling- had extended to the whole writing.

Is there on the other hand, any testimony which weighs down this testimony; or, rather, which may not be reconciled with it ? — or is there any testimony adequate to shew that, subsequent to the testator’s acknowledgment of the will as a subsisting will, as aforesaid, he did any act to destroy or revoke it? The latter is not pretended : — let us briefly examine the former.

The testimony of Miss Heath is, that the testator wished he had “a good willand that he often repeated the idea. This is entirely consistent with the foregoing testimony ; viz. that the testator had a will, but was not satisfied with it: it was such a one as perhaps, he did not esteem a good will as he intended to alter it; but yet it is a legal will until revoked or altered. Mr. Gray’s testimony only shews that the testator meant to alter his will, by leaving instructions therein touching the manner of his burial. As to the testimony of Mr. Bolling, it is, that the testator three or four weeks previous to his death, said “that it was .inexcusable for a man not to keep a will by him ; particularly a man in his situation ; that he was determined* not to be without one many days ; and that no business should prevent it.”

This testimony is susceptible of the same answer, viz. that he had no will by him that was entirely to his mind ; *and that many days should not elapse before he would have one of this character. The appellant have not proved that the testator ever declared that he had no will by him; whereas, on the other hand, it is proved that he often declared, that he had •one, and that one a will in force, and in possession of his mother; one, however, I admit, with which he was not perfectly satisfied, as not being sufficiently favourable to his mother, and which he intended to alter. My deduction from all this respectable testimony is, that all the witnesses have sworn to the truth ; but that the testimony last mentioned must be taken under the restriction just stated.

We must take it under this restriction ; impute perjury to the very respectable witnesses for the appellees who have sworn, affirmatively, to the testator’s recognition of the will in question as a subsisting will; or the declaration of Mr. Bolling, (the only witness for the appellant, whose testimony is not easily so to be reconciled,) must stand justified by some posterior will, or declaratory act of revocation ; posterior, I mean, to the point of time to which the testimony of Woodson and the other witnesses relates.

No such will or act is pretended ; but, if any such testamentary paper does in fact exist, and should ever hereafter appear, it will take place of the will now established : at present, such a testamentary paper is entirely in nubibus, and therefore, no injury can arise from giving the preference to the testimony going to establish the will in question.

The appellee in this case having entirely succeeded in proving recognitions of the established will by the testator, nearly up to the time of his death, it would have been incumbent on the appellant, in order to rebut the same and justify Bolling’s testimony, taken in an absolute and unqualified sense, to shew that the postscript in question (or some other revoking act) was written after the period of such acknowledgments. This he has not done, and cannot do : — on the contrary, it is established entirely to my satisfaction, that that postscript was written at. the *same time with the will, as aforesaid, or, at any rate, prior to the act of cancelling in question.

As to the conversations of old Mrs. Bates respecting the wills, as detailed by Miss Heath, I put them out of the question.

The declaration of old Mrs. Bates, that her son asked her if she had given up the will, was merely hearsay from old Mrs. Bates : it is not (as some seeming indistinctness in Miss Heath’s deposition might seem, at first, to indicate) an inquiry which the witness heard the testator make of his mother : it is therefore not to be considered as evidence in the cause. If, however, these declarations are to be relied on ; while, on the one hand, this inquiry could not go further than to import, at most, some dissatisfaction on the part of the testator, with his will, which consequently he wished to alter, the declaration must be taken altogether, and then another part of it goes to fix the period of time when the act of cutting out the name took place ; that is, at or about the time of her son’s marriage ; and they consequently carry back that act far beyond the time of the various acknowledgments of the testator, respecting the existence of his first will, as proved by the testimony. As to the uncertainty of this lady, whether the first will had been returned to her, or not, it is unimportant; but, it is proved that the testator, in March, 1808, acknowledged it to be in her custody. ■ With respect to the emotions created in the breast of the old lady, bv the production of the will in question, they are equally honourable to her character and feeling's as a mother, and to the filial duty and affection always manifested towards her by her son. It is entirely within the compass and character of human nature, that the hearts of those who, being duly prepared, can bear the shocks of adversity with fortitude, should be moved and melted with the sudden presentation of scenes involving the most dear and tender recollections. The circumstance now so much commented on by the appellant’s counsel, can only be viewed in an aspect to do honour to the character of the respectable parties implicated : as to its having been caused by any ^improper or dishonourable conduct on the part of this lady, there is not the least pretence for such an idea.

Great stress has been laid on the circumstance of this cancelled will being found in a box contained in a trunk with other papers ; whence it is inferred that the postscript is a preserved and not a cancelled paper. That circumstance, standing singly, would prove nothing, as many men are in the habit of preserving every paper they ever had in their lives ; and, as the appellant’s counsel have succeeded in proving the testator to have been one of the most precise and particular men in the world, this habit may be well imputed to him. But the circumstance does not stand single ; or, if it does, it is at most but equivocal and also liable to be explained by testimony. This equivocal circumstance, (to say the most,) going- to shew that the postscript continued in force, is outweighed by the testator’s repeated admissions, as aforesaid, that it was notin force; or, what amounts to the same thing, that the first will was in the force and in the keeping of his mother. The circumstance, as it often happens in relation to circumstances, is outweighed by positive proof.

But, on the other hand, keeping all the testimony out of the question, and arguing •from this circumstance only, how does it happen that the testator (the most precise and particular man in the world) should leave the validity of a revoking act to rest upon the doubts, (to say the least,) resulting from its being contained in a paper cut through and cancelled, and to stake the effect of such an important instrument upon eight formal words, to be found in almost every will whatsoever ; and that this state of things should have been continued by him for two years after the cancellation? Was paper scarce with him, a lawyer in very extensive practice ? was he indolent ? or did he not possess leisure or talents to write a less exceptionable instrument ? Neither of these will be pretended.

As to the will in question, it is in proof that the testator meant to provide further for his mother. It is her misfortune that he did not live to do it: but the will, being admitted to be in force, although he intended to alter it, must ^operate as far as it goes. As to Clemensa, it is, perhaps, her misfortune that the testator died intestate: I say, perhaps, for circumstances might have happened to change his opinion on that subject, tier’s is, at most, the common case of a party’s failing to provide by will for those who have strong claims upon him. All that we have to decide, is, whether the testator has made a will or not ; not whether it is such as he ought to have made, or whether it extends the whole length of his intentions on the subject.

I have thus stated to you, sir, some of the grounds of my present opinion. I have taken up this case as it were a new case ; as if it had never, until now, been before this Court. I have forgotten, or, at least, endeavoured to forget, that I ever before .gave an opinion upon it. That magnanimity which has often induced this Court to rehear its decisions, and give up its former errors, would be but illy maintained by proceeding upon a ny other idea : it would be violated and degraded, were any Judge not to consider himself as free as the winds of heaven to make up his opinion de novo.

I have heard every thing which has been said on this second argument, with patient and calm attention. I have relinquished, ■perhaps, some of the ideas I expressed on the former occasion, and others have shed new lights upon my mind. If my opinion is not changed as to the great result of this cause, it is because I can never be brought to agree that two and two do not make four.

I have formed my opinion in this case from an anxious attention to every atom of testimony in the cause, and from an inspection and consideration of the identical writings in question, under all their appearances and circumstances. These, down to the fortieth part of a hair, are important in my estimation: but perhaps, they cannot all be presented, in the reports, precisely as they have appeared to us. Upon the facts and documents proved and exhibited in the cause, I cannot have a scintilla of doubt, but that the testator died leaving as his last will the paper which has been established as such by the judgment of the District Court.

*The other Judges are, however, upon the testimony, of a different opinion ! Those Judges being also of opinion, that this is not even a case of so much doubt, upon the testimony, as to make the intervention of a Jury desirable ! — I have not made up my mind upon a question of law of the greatest importance, which a contrary view of facts, on their part, would have presented for decision : namely, whether this Court has power, in a case like the present, to direct an issue of revocavit vel non.

I beg to be understood as giving no opinion on this important question ; but I shall not conceal that my impressions are always in favour of the maxim “ad questiones facti respondent juratores in favour of the ordinary and constitutional mode for the ascertainment of facts; nor can I readily discern the utility of devoting the precious time of this high tribunal, entrusted with the consideration and ascertainment of principles of law and equity, to subjects to which the genius of our constitution and laws admit, that Juries are better adapted; of exhausting the precious time of this Court in watching the countenances of the witnesses who depose before it, and in determining, for example, whether this or that particular witness is the most deserving of credit.'

I conclude, sir, by giving it as my opinion that the judgment of the District Court, establishing the will of the 16th of November, 1799, is correct and ought to be affirmed.

JUDGE DEEMING. This being a case of much expectation and solicitude, as to the parties interested ; and differing from a worthy Judge, for whose opinions I have the highest respect, I must take more time than usual in stating the grounds of my opinion, and shall necessarily occupy a considerable portion of the ground taken on a former occasion.

With respect to directing an issue, on the suggestion of the appellee’s counsel, at the late argument of the cause ; that proposition has been, to my mind, sufficiently answered by the worthy Judge who first delivered his opinion ; and *with whom, on this point, I fully concur, so far as it respects expediency in the present case, as I want no verdict of a Jury to ascertain a fact, that to me appears as plain as the meridian sun. But as to the power of the Court to direct an issue, I give no opinion at present; not having considered it with sufficient attention.

With respect to the merits of the case : the important question before the Court is, whether the writing admitted to record by the District Court of Richmond,- as the last will and testament of Charles Fleming Bates, was, at the time of his death, truly his last will, or whether it was not absolutely revoked by the testator in his life-time. In deciding which, I shall first consider the case, as it appears from the written evidence, alone ; and then on the written and oral testimony taken together ; and it will not be amiss to take a short retrospective view of the situation and circumstances of the testator, and of his connections, at different periods, from the date of the writing in controversy, at the time of his death.

At the former period he lived in the house of an indulgent father, who had paid particular attention to his education and morals, and who was, unfortunately, in declining circumstances.

The testator was then a bachelor, and had lately commenced the practice of the law ; and being a man of respectable talents, of great' diligence and economy, had a well grounded prospect of improving his fortune. Being thus circumstanced, he, on the 16th day of November, 1799, made the will now in controversy ; the whole of which is in his own hand-writing ; at which time both his parents, and several brothers and sisters were living; and prompted, I conceive, as well by paternal affection, as by gratitude for the care and indulgence of his parents, they appear to have been the first and principal objects of his solicitude and bounty. And in the latter part of his will he directs his slave Isaac to be free at twenty-one, and Charlotte at eighteen years of age ; and lastly, gave his trustee ten per cent, on the profits of his estate, for his trouble.

*This will (as appears from evidence) was sealed up, directed to his mother, and delivered to her for safe keeping; and nearly two years thereafter, the testator having for a large sum of money purchased the mansion and plantation where his father dwelt, (called Belmont,) he received the will from his mother, broke the seal, and added a codicil, in the following words, to wit, “I wish the balance of the purchase-money of Belmont to be raised by my said executor, as soon as possible, from the debts due me, and a title made to my said executor, as trustee, in like manner as the personal estate; and as to Isaac and Charlotte, I revoke the proceeding part of my will, but not to any thing else.

(seal.) Signed “Ch. F. Bates.

“Sept. 23d, 1801.”

After adding this codicil, he resealed the will, and returned it to his mother; and having made pecuniary engagements, perhaps beyond what he formerly contemplated, he found it expedient to retract the benevolence he once intended towards his slaves, Isaac and Charlotte ; and to make ample provisions for discharging those engagements, and fulfilling the former purpose of his will.

About two years thereafter, his circumstances having been considerably changed, and having formed an imprudent (though not uncommon) temporary connection; on the 2d day of September, 1803, he thought proper to make a new will, (which, without a special clause for the purpose, would, at his death, have virtually revoked the former,) in the first clause of which he declared his .most ardent wish to render his mother happy and easy during life ; also his father, and ail his children, as long as they, or any of them, continue in his family, remain single, or, in the discretion of his executor, should need assistance. And after a further disposition of his estate, on the death of his father and mother, he recognized the fruit of his unhappy amour, called her his daughter Clemensa, declared her to be free, gave particular directions respecting her education, and made a handsome permanent provision for her, manifesting thereby *a laudable instance of natural affection, and making the best atonement in his power, for his former indiscretion. And lastly, he appointed the same executor and trustee, as in his former will.

On the 26th day May, 1805, died Thos. F. Bates, father of the testator, who, on the 28th day of May, 1806, married Miss Miller, the appellant in this cause, which wrought so important a change in his family and affairs, that neither of the wills seemed at all adapted to his then situation and circumstances ; he therefore carefully cancelled the latter, by cutting out the signature of his name at the bottom of it, and let remain a little to the left of the signature cut out, the following words, to wit, “I revoke all other wills heretofore made by me,” signed “C. F. Bates,” all in his own hand-writing ; which will, so cancelled, with the clause of revocation remaining, he carefully preserved, and kept by him till the day of his death. The important question hence arises, whether this writing was a revocation of the will now in controversy ; and if so, 2dly, whether the will thus revoked, has since been SO' republished and acknowledged, by the testator, as to give it validity.

In considering this question I have not had reference to the English authorities, as few of them apply to the case before us, but am governed by our act of Assembly, concerning wills, passed December 13th, 1792.

By the third section of that act, the will before us was revocable, either by the testator’s destroying, cancelling, or obliterating the same, or causing it to be done in his presence, or by a subsequent will, codicil, or declaration in writing, made as aforesaid ; that is, either written wholly by himself, or attested by two or more credible witnesses, subscribing their names in his presence: the clause of revocation, or declaration in writing above mentioned, having been written wholly by the testator himself, and signed with his name, is precisely and fully within the provision of the act of Assembly ; and, to my mind, amounts to an absolute revocation of all former wills by him made. But it was contended by the appellee’s counsel, that the clause of revocation, *as they style it, was a substantive part of the will of September, 1803, and when that will was cancelled by the testator, the clause, consisting of only “nine little words.” was cancelled also ; but I am constrained to view the subject in a very different light; and those nine little words are very explicit, and with the attendant circumstances, appear to me to shew the quo animo, and to evince the testator’s mind, as clearly as if he had written a volume on the subject. Can it be, for a moment, believed, that when he was cancelling the will of .September, 1803, as being illy adapted to the then situation of his family' and affairs, that he could have entertained the most distant idea that the will of 1799, which was much more so, (inasmuch as he had then married a young wife,) should be thereby revived ? I have a thorough conviction that it would not; for, had that been his intention, with how much more ease, and less trouble, could he have torn the will in pieces, or thrown it into the fire ; but instead of doing either, he cancelled the will, by carefully cutting the signature of his name from the body of it, leaving the declaration of revoking all other wills by him before made, with his name thereto, standing within half an inch of the name so •carefully cut from the body of the will. We find this cancelled will, then, and the revoking declaration, with the signature of his name annexed, deposited with the most precious treasures of his cabinet. And why was it thus carefully preserved ? As a standing testimonial that he then had no will in ■existence; and as an irrefragable proof, to my mind, that that was the real intention of the testator, is the circumstance of the will of 1799, being then in the custody of his mother, in the County of Goochland ; which, •on cancelling the will of 1803, would have been revived and in force, without some such written declaration of the testator.

But it is contended by the appellee’s counsel, as before noticed, that the will of 1803, with the revoking declaration annexed, is •one and the same instrument; and that •cutting- out the name of the testator from the body of the will, destroyed the whole, notwithstanding his signature remained *to the declaration, “that being a mere marginal note.” It is sometimes customary, where wills consist of several sheets of paper, for the testator to sign his name to each separate sheet ; but I believe, that in the whole catalogue and history of wills, there cannot be produced a single instance, where a man, acquainted with law, and versed in the technical terms of the science, ever put a •double signature to such a will as that of 1803, now before us, and consisting of less than half a sheet of paper, for the mere purpose of authenticating and giving validity to the same. And it appears to me, from a view of the paper itself, and the attendant •circumstances, that the declaration of revoking all other wills, was written and signed by the testator, at the time he cancelled the will, and by him carefully preserved, for the sole purpose of revoking the will now in controversy, which was then in the custody of his mother, in the county of Goochland; and it is highly probable, that, as the will of 1803 was made in the city of Richmond, where the testator then spent the greater part of his time, in the exercise of his profession, it was there cancelled also : but that seems a circumstance not very material. As it appears to me, that whether the declaration of revoking was written at the time of cancel-ling the will, or at the day of executing it, and carefully preserved by the testator, it amounts to the same thing, and is to have the same effect.

We are now to consider the second point, whether the will, thus revoked, has since been so republished, and acknowledged by the testator, as to give it validity.

In doing which, we must recur to a variety -of oral testimony, which is admitted to be sometimes proper, for the purpose of explaining the intention of a testator, and not by me, denied to be so, in the case now before the Court.

All the witnesses examined on the occasion appear to be persons of respectability, and of fair characters; and therefore, I give credence to the whole of their testimony as to facts ; and shall only consider what effect it ought (taken collectively) to have on the cause. I begin with the testimony in favour of the -will now in controversy ; and first*with that of Frederick Woodson, of whose integrity and candour I have not the smallest doubt.

Major Woodson states, that in February, or March, preceding the death of Mr. Bates, which happened on the 30th of May, 1808, the subject of both his wills was - mentioned, when Bates informed him he had a will, which he wrote many years ago ; but that he did not like it, and would make another in a short time. He told the deponent he did not approve of the will he had, but, in making another, he meant to make his mother independent in some degree : he meant to give her something at her own disposal. The conversation arose from the deponent (who was his uncle) finding fault with his conduct respecting his mother, in not' taking that care of her which he ought, as he had been informed, and was a kind of admonition, or reprimand from the witness. The testator spoke of his second will, as having been cancelled, and said that the first will was then in existence, and in the keeping of his mother, but that he did not like it.

The witness, on being interrogated by one of the Judges, said, he understood the testator’s dislike to the will (meaning the will now in question) was two-fold ; first, that it did not provide sufficient for his mother; and secondly, that he understood the property was somewhat incumbered, which the witness from hearing the will read, understood was the control given over it to Mr. Holman, the executor. This to me appears a strange inference indeed ; for the principal clause in the will is, “that his executor and trustee, George Holman, hold all the property of which the testator might die possessed, and not otherwise disposed of, in trust, for the benefit of Caroline M. Bates, (his mother.) and under her free and particular control, so long as she continues the wife, or widow, of the said Thomas F. Bates; and if she should marry again, and be in need of any thing, then to such proportion as the said trustee in his judgment shall think right, not exceeding one-third of the estate of the testator.” And this was thought by the witness, (and as he supposes, by the testator,) an inadequate '^provision for his mother, at a time when the testator had formed the most tender and important connection known in society ; and then had a young wife, in the seventh or eighth month of her pregnancy, with the prospect of a numerous progeny before him ; besides the moral, as well as natural obligations he was under, to make ample provision for his illegitimate daughter, already recognised and emancipated, and for whose welfare and happiness he had shewn very great anxiety and solicitude. To me it is inconceivable that any rational man, with the common feelings of humanity, thus circumstanced, could suffer such a will to exist for a single moment: but we have already seen that it had been deliberately and solemnly revoked. Let us proceed with the evidence.

Earner Bradshaw, says “that on the 26th day of May, 1806, C. F. Bates informed him he had made a will, taking' care of his mother ; and the latter end of February, or March, meeting him in the field, he again told the witness he should take care of his mother; that it should not be all the»people in the world should prevent his taking care of her : said he had a will, and should take care of his mother at all events.”

Such a resolution was laudable, and worthy of a dutiful son, to an amiable and indulgent mother : but there were others who had still stronger claims on his justice, care, and attention, to wit, a wife, with the prospect of a growing family of children : for we are told in holy writ, (and it is one of the first laws of Moses,) that “a man shall leave his father and mother, and cleave to his wife; and they shall be one flesh.” And more especially was he bound by the ties, both of natural affection and of moral rectitude, to make ample provision for the unfortunate offspring of his juvenile indiscretion, and for whose welfare and happiness he had (as before noticed) shewn the greatest and most laudable solicitude; neither of whom (as wife or child) were in existence at the time of making the will in question, nor for several years thereafter ; and consequently could not have been contemplated by the testator. The consequences under the then *existing circumstances, could not be so distressing to the former branch of his family, because the issue of the marriage happened to be still-born ; and the law makes ample provision for the widow : but far different is the case respecting his natural daughter, who, together with her future offspring, the law has doomed to perpetual slavery, to her nearest blood relations, unless, emancipated by their clemency; and so great was Mr. Bates’s affection for her, that he put her to board (at a liberal price, which he punctually paid) in the house of Mr. William Clarkson, a respectable farmer in the county of Gooch-land, whom he told that (as soon as she should arrive at a proper age) he would send her to the town of Bethlehem, in Pennsylvania, where there is, perhaps, the best seminary for female education, in the United States.

These circumstances are noticed to refute the suggestion of one of the appellee’s counsel, “that Mr. Bates wished to conceal the existence of his unfortunate daughter;” and to shew the improbability — nay, the moral impossibility, that a man endued with common reason, and possessing the common feelings of humanity, could ever have contemplated the re-establishment of the will now before the Court, which he had so solemnly revoked upon the birth of his unfortunate child. And if it was expedient and proper to revoke it on the first remarkable change in his family, in the year 1803, how much more so was it, that it should remain revoked, after his intermarriage with the appellant, in the year 1806.

To proceed with the evidence.

Charles Hopkins says, that he lived with Mr. Bates, and continued with him as late as December, 1807 ; and heard Mr. Bates say, that, for a number of years past he had always kept a will by him ; and condemned it in others not to keep wills by them.

Christopher Anthony says, that in conversation with Mr. Bates, (but can say nothing as to the time, with certainty,) the latter mentioned that he always kept a will by him ; *and told him he had appointed Major Holman his executor. He thinks the conversation happened about the time of his marriage; but whether before or after he cannot say.

This seems to be the substance of all the evidence adduced in support of the will; and the one spoken of in Anthony’s deposition was, most probably, that of September, 1803 ; but be that as it may, this evidence, without any adverse testimony to weaken the force of it, does not, in,my conception, amount to the re-establishment of the will in question, which had been so solemnly, and deliberately, revoked by the testator. And when we come to consider the evidence of Edward Bolling, William Clarkson, William Gray, Winifred Heath and William Miller, all speaking of circumstances at later periods than those mentioned by the other witnesses, which it seems unnecessary to recapitulate ; the latter, in my apprehension, greatly preponderates, and shews it to have been the opinion of the whole family, even of Mrs. Bates the elder, herself, (who had for a long time had this will in her keeping, but had told her son, on his particular inquiry, that she had given it up to him,) that Mr. Bates had died intestate. And such was her surprise, when this will was accidentally found by her daughter about two months after his death, that she was extremely affected, and with great difficulty kept from fainting. And had Mr. Bates, in his last illness, when he was shewing great anxiety and wishing for some person to write him a will, or (according to Miss Heath) a good will, it is to be presumed that had he supposed the one before us in existence, and wished it to be revived, and established as his will, he would so have expressed himself. And it is much to be lamented, that he was, by the hand of providence, prevented from making a suitable provision for the two worthy objects of his filial and paternal regard and affection ; and for whose welfare and happiness he had uniformly shewn the most laudable solicitude ; and were "I to decide this case agreeably with my own private wishes, it would be to affirm the judgment of the District Court; but after the most mature reconsideration of the subject, I am thoroughly convinced that my former *opinion was correct, that the paper before the court is not the will of Charles F. Bates : and therefore the judgment of the District Court is erroneous, and ought to be reversed—

Which was the opinion of a majority of the Court. 
      
       It would Rave afforded the reporters real pleasure to comply with the request of the respectable Judge, could they have done It consistently with what they conceive to be a paramount duty to the public. To give a faithful detail of the decisions of the Court, is what they have professed, and what they have scrupulously en deavoured to perform. In doing this, their work has exceeded the limits originally contemplated. Were they to give a journal of cases agitated butnotdecided.it would only add to the mass of matter, without increasing the stock of public information. Besides, when the judges have agreed to reconsider a case, it would seem that their opinions on the first decision should be considered as if they never had existed, and cannot, with propriety, without their own request, or in the event of the second opinion agreeing with the ñrst, be published: for, to publish the whole proceedings in a cause, where a rehearing has been granted, would seem to bind down the Judges to abide by opinions which they had agreed to reconsider. We have deemed it proper thus to excuse ourselves for not publishing the whole report of the case, as it appeared at the October term, 1808. Another and very substantial apology would be, that considering the whole proceedings at October term as liable to be reviewed, and varied, by a subsequent decision, we did not take such notes of what fell from the Judges, as would enable us to report those proceedings with accuracy. — Note in Original Jfldition.
     
      
       Cowp. 54.
     
      
       1. Bl. Rep. 1043.
     
      
       Powell on Devises, 634; 3 Wils. 508.
     
      
       Dong. 49.
     
      
       1 Wash.
     
      
       Vesey.
     
      
       2 Hen. &Munf. 467.
     
      
       1 Hen. & Munf. 478.
     
      
       3 Call, 334.
     