
    *John Taylor v. Isaac Taylor.
    Where a testator duly executes a will, which he permits to survive him, it will not he revoked by a subsequent will, which he has cancelled, or one not drawn animo testandi.
    
    This was an appeal from the Ordinary of Beaufort district, before whom two testamentary papers were produced, each purporting to be the last will and testament of William Taylor, deceased.
    The defendant was the principal legatee in both wills. But the plaintiff was only a legatee under the first. Other legatees were substituted for him in the second will.
    The first will bore date in 1810, was signed by the testator, and subscribed by two witnesses. It was drawn by Mr. John Riley, one of the witnesses, at the request of the testator, when he was in health, and also at his particular request. It was kept by Mr. Riley, until the testator’s death, which was in 1816. Prom the execution of this will to within a few days of his death, he constantly and repeatedly expressed his satisfaction therewith to Riley and others; but appears industriously to have concealed from the persons to be benefited by it, his having executed a will. He complained of the importunities of his brother, the defendant, about a will, and yet never disclosed to him that a will had been made. The testator died about sunrise, July 16, 1816. Three or four days before his death, he left the house of Mr. Pity, extremely ill, with the hope of reaching home; he was, however, obliged, by bad weather and ill health, to stop at the house of Mr. Lyons, who, on discovering his situation, proposed to him to make a will in favor of the plaintiff, his nephew, and then the defendant, his brother, to both of whom he objected, as he did to all his family. Lyons, who thought he ought to make a will, was not satisfied with this refusal; he persuaded Mr. Bealer, one of the legatees in the last will, and who happened to be at the house, to use his exertions to induce the testator’ to make a will. Bealer did so, and succeeded so far as to induce him to send for *,q„1 a man by the name of Smart, *to write a will. Lyons proposed J to send for a lawyer. The testator said no, he would have only Smart, he was good enough for the purpose. Smart was accordingly sent for, and he soon made his appearance. He proceeded to draw a will. lie read each sentence as he wrote it; the testator objected to this phraseology; did not like any “palavering," as he termed it; said he wished a “ simple will.” After repeated attempts, the testator appeared to be satisfied with the one which he signed, and which was subscribed by two witnesses. This was on Sunday. Before, however, Smart left the house that day, the testator appeared dissatisfied with the will; said it did not contain words limiting the distribution of his estate to a period, “ after his death;” wished another drawn, to which Smart objected, saying that he was obliged to go to Ooosawhatchie on business. On Monday morning. Lyons and Smart, the two subscribing witnesses to this will, went to Ooosawhatchie. On their return, they found that the will executed the day before, had been cancelled by the testator; that he had himself torn his name from the instrument, and understood that he ojected to it, because it did not contain the words, “ after my death.” At that time another will was exhibited, in the handwriting of the defendant, Isaac Taylor. It was precisely the words of the one drawn by Smart, excepting the words “ after my death,” which it contained. This will was read to the testator on Monday evening, once or twice; he was asked if he could execute it. He appeared to assent; he indicated his assent by the nod of the head, but muttered something about male heirs. He was lifted up to sign it; he said he could not, that he was too weak, but he would do so at some other time. Lyons then observed, that in all probability, he would never sign it, as his crisis was fast approaching. When the testator used the words, “male heirs,” Ool. M’Nish, who was present, said, “ I know what he wishes, he wants to make such a will as Graham made,” and proceeded to write such a one. On reading it, however, to the testator, he expressed his dislike *to it; said it had too much “palavering." The testator died early the next morning, without having signed the will. Mr. L Lyons stated, that he never heard the testator express any wish to have a will, but when he sent for Smart, that there were several persons about him on Monday evening, each of whom, in his turn, undertook to suggest to the testator some mode of leaving his estate. This witness, upon being asked whether he thought, from the conduct of the testator, he would have changed his mind, if he had lived a day longer, replied that he did not know what to think. It appears that the testator never divulged to any one at Lyons’, that he had made a will. It appears, that in the will of 1810, the words, “ after my death,” are not to be found.
    The Ordinary admitted to probate the will of 1816, and rejected that of 1810.
    The Circuit Court reversed the decree of the Ordinary, and an appeal from that decision was submitted to this Court, on the following grounds :
    1. Because the will of 1810 was revoked by the will drawn by Smart, although cancelled by the testator.
    2. Because the will drawn by Isaac Taylor, on the 15th July, 1816, was a valid and effectual will, and revolted that of 1810.
    o. Because, if the testamentary paper of 1816, be not good as a will, it is, notwithstanding valid as a codicil.
   The opinion of the Court was_delivered by

HtjseR, J.

As a will is ambulatory, and can have no effect until the death of the testator, it would seem to follow, that the testamentary paper, permitted by a testator to survive him, must be his will; until consummated by death, it is inoperative and ineffectual, and has no legal existence.

A testamentary paper, duly executed, and which is permitted to acquire a legal existence by the testator, will not be destroyed by a paper which does not exist, and whose legal or operative existence was prevented by the voluntary act of the testator himself.

*If two consistent wills be left by a testator, as they have both r*. Rc been consummated by his death, a question would arise as to their *- validity; which is the last will, must be decided; and here the dates are very important. But when only one testamentary paper survives, there can be no such question.

A testamentary paper, purporting to be a devise of lands, and duly executed according to the statute, would not be revoked by a subsequent writing, purporting to be a last will and testament, but which has not the statutary requisites. The last not having the legal requisites of a devise of lands, would not repeal the first, which has the legal requisites.

So a will of chattels having no legal operation before death, if it survive not the testator, cannot repeal one which is permitted to survive. In Goodwright v. Glazier, 4 Burr. P. 2512, the Court ruled, that a former will is not reversed by a subsequent will, which is cancelled ; and in Harwood v. Goodwright, 1 Cowp. 91, Lord Mansfield, in delivering’ the opinion of the Court, says, “ if a testator makes one will and does not destroy it, though he makes another at any time, virtually or expressly revoking the former, if he afterwards destroy the revocation, the first will is still in force and good.” And this ease was, on appeal to the House of Lords, affirmed.

Several cases, decided in the Ecclesiastical Courts of Great Britain, have been cited to show that the rule laid down in Hanoood and Goodwright, has not been universally admitted. In the case of Moore v. Moore, recently decided in the High Court of delegates, a different rule appears to have prevailed. But these Courts are governed by the civil, not the common law; and it appears that the civil law rule is the reverse of that laid down in Harwood and Goodwright.

By the common law the first will is presumed to be restored to its active energy by the cancelling of the second. By the civil law the first is regarded as annihilated by the second ; and it requires other evidence *4861 ^an a destruction of the second to revive the *first. In both .it -* is regarded as a question of intention, and may be controlled by other evidence.

I am best satisfied with the common law rule, and if I were not, I should not feel myself at liberty to violate the Act of the Legislature, which has made of force in this State the common law.

An attempt has been made to distinguish between wills affecting the personalty, and those affecting the realty; I have been able to discover no foundation for this distinction. If it be a question of intention, the evidence which should satisfy the mind as to the realty, ought to be sufficient to satisfy the mind as to the personalty. The' law is more re-gardful of the first than the last, and always requires stronger evidence of title.

It is said, however, that wills affecting the personalty are exclusively within the jurisdiction of the Ecclesiastical Courts of England, and therefore are governed by the civil law rule. But the Court of Ordinary in this State, is not an Ecclesiastical Court; it is established by statute, and is governed by those rules which prevail in the common law Courts, to which, there is a direct appeal given by statute, as is evidenced in this case.

But in this case, the intention of the testator has been manifested by unequivocal circumstances. The jury have found for the plaintiff, on the ground that the will drawn by Smart, as well as the one drawn by Isaac Taylor, were acquiesced in by the testator, to avoid importunity and not animo testandi; and this conclusion was fully authorized by the evidence.

The motion, therefore, must be dismissed.

• It will be understood, however, that the Ordinary is not precluded from the consideration of any other objections to the will of 1810, than such as grew out of the will of 1816. He has decided that the will of 1810 should not be admitted to probate, because the will of 1816 revoked it. In this he was wrong, and if no other objection can be made to the will of 1810, it ought to be admitted to probate; but if other objections exist, which is possible, though the Court know of none, the Ordinary is not precluded by this ^decision from an examination of such objections. Motion is refused. [*48T

Bay, Nott, and Johnson, JJ., concurred.

See oases cited, ante, 279.  