
    Guthrie and Wife vs. Owen.
    1 A wilting offered for probate as a last will and testament may be established though it be not executed, and income instances, though it be imperfect; but such want of execution and such imperfection, mustnot result from an abandonment or change of purpose, but from'the act of God which defeats the completion of it.
    2.’The presumption of law is against the testamentary validity of every paper offered for probate, which is unexecuted or imperfecV
    3. A paper writing offered for probate as testamentary, may be set up as a will of personal estate and rejected as a will of real estate»
    4. Where the willis imperfect, it must appear horn the face thereof, that tho establishment of it as far as it goes, is so far the entire will of the deceased, and that so far it does not thwart or defeat the wishes of the deceased, but carries them into effect.
    At the November term, 1838, of the county court of Williamson County, James 0. Owen produced an instrument of writing in open court, and offered it for probate, as the last will and testament of Samuel Owen, who died some short time previous thereto, in the county of Williamson, in which he resided at the time of his death. This will nominated J. C. Ow.en, who was the brother of the deceased, as executor. Dadly GíÉhrie and his wife Delila Guthrie (who was a niece of the deceased) appeared at the same time and contested the validity of the alledged will, and tendered an issue of devisavit vel non, and gave the security required by law, for the prosecution of the suit. 1836, ch. 18, sec. 2. The county court thereupon, ordered the cause to be certified to the circuit court, for the purpose of making up the issue, as required by the act of 1836, Gh. 5, sec. 9.
    At the November term of the circuit court, 1838, an entry was made on record, as follows:
    “Whereas, on the 5th day of November, 1838, James 0. Owen offered for probate, in the county court of Williamson, a paper writing, purporting to be the last will and testament of Samuel Owen, deceased, and D. Guthrie and wife appeared there in said court, and contested the validity of said will, which fact, together with said original paper writing, has been certified by the clerk of the county court' into the circuit court. And, thereupon, the said James C. Owen, now here, offers said paper writing for probate, and avers that it is the last will and testament of Samuel Owen, deceased, and that he is ready to verify the same. And the said -Dudley Guthrie and wife Delila, come and defend the wrong and injury, and aver that said paper in writing is not the last will and testament of Samuel Owen, deceased, and pray that this may be enquired of by the country, and the plaintiff doth the like.”
    This cause was submitted to a jury of Williamson county, at the March term, 1840, Samuel Anderson, judge, presiding.
    It appeared that Samuel Owen resided in the county of Williamson, and in the full possession of his mental faculties at his death. He had no children, and was possessed of personal estate of the value of $3000, exclusive of some debts due him; lands in Davidson county, of the value of $1500or $1600, besides some others of unknown value, The nearest of kin to the deceased, are James C. Owen, his brother, Narcissa Owen, the daughter of a deceased brother, Mrs. Guthrie, a sister, and three nephews by the name of Beasly, who were the children of Mrs. Guthrie by a former husband. It appeared that Owen was displeased with the marriage of his sister to Guthrie, and therefore expressed an unwillingness that she should have any portion of his estate. At the time of his death, and for some time previous thereto, he resided at the house of his brother, James C. Owen. Being impressed with the belief that he was about to die, he sent for Ferdinand Moore for the purpose of having his will prepared. Moore arrived at the house of James C. Owen late in the evening, and commenced writing the will at nine of the clock, under the direction of the deceased, and prosecuted it till the hour of eleven o’clock. The deceased could not write, having lost the use of his hands from palsy, and could not speak, having lost, also, the use of his tongue some two year’s before his death: he, therefore, through the means of a dictionary communicated his ideas to the draughtsman of the wilj, which were written down, read to the deceased, sentence by sentence, and to which the deceased signified his assent by nodding. At eleven he became tired and sick, and desired that Moore should cease to write until the next day. The will is as follows, so far as assented to:
    “I, Samuel Owen, do make and publish this my last will and testament, hereby revoking and making void all other wills by me at any time made.' First. I direct that my just debts be paid, as soon after my death as possible, out of any monies I may die possessed of, or may come into the hands of my executor. Secondly. I give and bequeath to my brother James C. Owen, my boy Stephen, my carriage, my gold watch, my young gray horse by Sir William, also one thousand, dollars of Turnpike stock, to wit, twenty shares in the Harpeth Turnpike. Thirdly. I give and be--queath to my niece Narcissa Robert Owen my bed, my sorrel filly by Pacific, also one thousand dollars of Turnpike stock, to wit, twenty shares in the Harpeth Turnpike. It is also my will, that James C. Owen hold the above named items as agent for the above-named Narcissa R. Owen, and use it as agent for her benefit, and! in the event of her decease, without issue, it is my will that the said James C. Owen shall have said property. Fourthly. I give to my brother James C. Owen, for the benefit of my three nephews, Burnett H. Beasley, Charles C. Beasley and Felix 0. Beasley, and I hereby constitute and appoint him agent, to hold, to- use and disburse for their (the said Beasleys) benefit, the following items, to wit, .one thousand dollars in Turnpike stock, to wit, twenty shares in the Harpeth Turnpike. Fifthly. I will and bequeath my executor sell my .land, lying.on Mill creek, also my negro man Tom, also my land in. Warren and Cannon counties, to wit, my .interest in these lands. I will to be sold also, all other property, of whatsoever description, of which I may die possessed of, and the proceeds' of which, together with the monies in my possession at the time .of my decease, also the money due to me by bonds or accounts, when collected, to be appropriated as above bequeathed, if any surplus should remain in the hands of- my executor. My desire is, •that Tom should select himself a home, and be sold privately for’ a moderate price. Sixthly. I leave in the hands of my executor, of the money due me and to be raised as above directed, one hundred dollai’s for .erecting tombs, and fifty dollars for fencing graveyard-” (I do .hereby nominate and appoint James.C. Owen my , executor. In testimony whereof, I do, to this my last will, set my hand and seal, this 20th October, 1838.- Signed, sealed and published in our presence, and we have subscribed our names hereto, this 20th day of, October, 1838. Ferdinand Moore. Everett Owen.)
    Hp signified his desire that James C. Owen should be executor, ■and haying manifested his satisfaction at the provisions of the will .to,Moore, and also to E, Owen, they retired. Decedent, had no ■'turnpike stock.
    Moore and Owen left the place and did not- return till about sun-dpwn on the next evening. On their return, they found him top.- • much debilitated in, body and mind to make any further, addition to? t]ie.wilL Moore then retired tp an adjoining room and added to, it a clause, appointing James C. Owen executor, in conformity •with the expressed desire of testator, and also added the attestation clause. The testator was insensible at the time of the addition of the two last clauses, and died shortly afterwards. Moore and E. Owen then signed the will as subscribing witnesses. These are the leading facts exhibited to the jury. The court charged the jury, among other things not excepted to, as follows: It is objected to this will, that it had not been finished by the testator, nor signed. The law as to that was, when a man commences a will, and does not finish it, or if the will is complete in every other respect, but is not signed by the testator, the legal intendment or presumption is, he had abandoned the will, and therefore the paper in this unfinished state, was not his will; but this presumption, like all other legal presumptions, might be repelled and rebutted by proof. The presumption would be repelled by proving the testator had suddenly died before he had time to complete the will: or it would be repelled by proof, showing the testator could not write himself, but had to rely upon another to write for him and to sign his name, and the person he had thus engaged to write his will stopped before it was finished to go off to attend to some business of his own, with the understanding he was to return in a reasonable time to complete the will, inasmuch as the testator could not control the writer of the will. But in such cases, the jury should be satisfied that the will, as far as it had been finished, was the final fixed purpose and resolution of the testator. If the proof showed the finishing of the will had been put off for the testator to reflect and deliberate upon, that view pre-supposes he had not come to a final resolution, and it would not, therefore, be his will.
    The court further charged, there were some cases where an unfinished will could not be set up as far as the testator had went, and there were cases where it might be set up as far as he had went as to personal property; and the only principle the court could assume as furnishing a test when a will could be set up in part, and when it could not as regards personal property, was this: If a testator gives one or more legacies by his will, and is prevented from completing said will by death, sudden sickness or insanity, if it appeared from the evidence, the testator had expressed his full purpose and intent with regard to the legacies given, the will might be set up as far as it went; but if it appeared, either from the face of the will or other proof, he had not expressed his full mind and intent with regard to the legacies given, in that case the will could not be set up as far as it went. In applying this principle to the will in question, the jury would look to the legacies given in this will, to James C. Owen, Nárcissa R. Owen, and the Beasleys, and if there was any thing in the face of the will, or in the proof in the case, showing that the testator intended to impose any condition, or burthen either or all of those legacies with the payment of a portion of his debts, or charge them with any other burthen, then it would follow, as he had not expressed hisjwhole mind upon those legacies they should not be established as his will thus far: but if no condition, qualification or burthen was intended, but the testator had expressed his full mind and purpose as to those legacies, they might be set up as his will, as to the personalty, although he had not completed his whole will, unless the same was invalid for, some other cause.
    Another question raised in argument is, that as the real and personal property is directed to be sold to raise the money-legacies and the will is not good to pass the real estate, or to authorise its sale, the legacies themselves could not be set up as the will of the testator. Upon this question, the court chai’ged the jury, if the will gave a legacy, and the same clause giving the legacy charged it upon real estate, or charged it on real and personal estate both, and did not specify the portion to be raised from each fund, and the legacy to be raised, was limited to the fund provided, it might be in such case, the legacy could not take effect unless the will was made with the solemnity required to pass, real estate. But the legacies in this will were given generally in different items: in one item he directs the real and personal estate to be sold- as the modus of payment; in such case I understand the legacy is a charge upon the estate, and if it cannot be raised ou.t of one of the funds pointed,out as the modus of payment, it may be made out of other funds of the estate, or in other words, it may be raised entirely out of the personalty; the law in such case prefers the legatee to the heir or distributee.
    The court also charged the jury, this will was not good to pass the real estate, or to authorise the sale, inasmuch as it had not been finished and signed by the testator, and attested by two witnesses in his presence and at his request, and if they believed the concluding clause in the will, appointing an executor, had been written when he was insensible, or if sensible, if it was written out of his presence, and not shown to and approved by him, or if written after his death, it would be void, although the writer might have been directed verbally at the commencement of the will to appoint the same person executor, and if they found in favor of the will, they ought to except so much as directs a sale of the real estate and this concluding clause.
    After the court concluded the charge to the jury, the defendant’s counsel asked the court to charge, that when a will- is made of both real and personal estate, and it is not good as to realty, it will not be set up as to the personalty, if it is not on its face a perfect and finished will of personal estate.
    The court said it could not assent to the proposition as stated; it might be set up or established as a will of personal estate only, though made for both real and personal; although it be not good for realty, and although upon its face it is not a perfect and finished will of personal estate. ' It depended upon other circumstances whether such a will could be set up as to the personal estate, which the court thought had been already sufficiently explained in its charge already delivered.
    ' The jury returned a verdict, in which they declared that the paper writing offered for probate as the last will and testament of Samuel Owen, deceased, was so far as said instrument purported to dispose of his personal estate, the last will and testament of the decedent; but that so far as said paper writing, purported to devise the real estate of the said Owen, it was not his last will and testament. They also found that the clause in said paper, appointing James C. Owen his executor, and the attestation clause were not the will of the decedent.
    The counsel for the defendant moved the court for a new trial. This motion was overruled and judgment rendered on the finding of the jury, establishing the paper as the will of the deceased as to his personal estate, and that so far 'the paper should be certified to the county court of Williamson as the will of the deceased, and that the defendants should pay the costs of the suit.
    From this judgment the defendants appealed in error to the supreme court.
    
      Alexander, for plaintiffs in error.
    If a further act is contemplated to be done by testator, the will is void. 4th Wend. Rep. 170:’ 2 Eel. Rep. 60: 4th Eel. Rep. 109. The charge of the court makes the delay of Ferdinand Moore to finish the wíU, equivalent to a prevention from doing so by the act of God, which doctrine is not sanctioned by law. It must be shown by proof there was no change of intention in the interval, and there is no such proof here. Johnson vs. Johnson, 1st Eel. Rep. 159: Devereaux vs. Bullock, 1st Eel. Rep. 35, 40. If the testator dies while the instrument is in progress, it will not be established as far as it goes, unless the court can infer, that by pronouncing for it they will carry into effect what, from all the circumstances of the case, was the desire of the deceased. Roberts on Wills, I5l to 154, inclusive: Shepherd’s Touchstone, 407: Toller, 2, 3: Montefiore vs. Monte-fiore, 2d Eel. Rep. 340, 343, There is no case where the instructions to write a will were unfinished, that the paper has been established as a will. Devereaux vs. Bullock, 1st Eel. Rep. 35, 40. The decisions in England in force in New York at the adoption of the common law by their constitution, 1775, govern that State, and not subsequent English decisions. 4th Wend. Rep. 170. The English rule, that a will devising real and personal property, not attested, was good for the personalty, established by the case of Cobbald vs. Bass, 4th Ves. Rep. 201, have been changed in England. In Walker vs. Walker, 1st Mer. Rep. 503, the counsel for the will admit a change of that rule of law, 508-9; cases cited against the will, 512, 512, overruling Cobbald vs. Bass. So 1st Paige, 347, 375-6-7-8, 382: Matthews vs. Warner, 4th Ves. Rep. 186 to 193, change of intention presumed, 197-8: Chancellor’s opinion, 208-9, 210: same will disallowed, 5th Ves. Rep. 23. This doctrine will apply at any rate to an instrument which is not a complete and finished will, to pass property. 3d Paige Rep. 378.
    As to an instrument purporting to devise both real and personal property which are so blended together therein, that one cannot pass without the other, so as to effectuate the intention of the testator, the best rule in this country, is that adopted in the case of Sturdevant vs, Goodrich, 3d Yer. Rep, 96, that an equal disposition should be made of a man’s property among his next of kin.
    
      Marshall, Foster and Ewing, for defendant,
    cited following authorities: 1st Wms. on Ex’rs, 50, 54: Cogbill vs. Cogbill, 2d Hen. &Mun. 514: Montefiore vs. Montefiore, 2 Eel. R. 341-2: John-sonvs. Johnson, l Eel. R, 159: ibid. 465": 1 Eel. R. 32,34: 1 Eel. R, 31: 1 Eel. R. 481: Peek’s R. 301: Wms. on Ex’rs, 15,
    
      
      jD. Campbell, for plaintiffs in error.
    The error that exists in the charge of the court below, is conceived to consist in a failure properly to discriminate betwéen that which is merely an unfinished testamentary paper, and that which is an imperfect one. Though the paper propounded as the last will of Samuel Owen, be an unfinished and incomplete instrument, yet it is no doubt true, it may be set up as his will, if it perfectly expresses his intention as to the disposition which he desires to be made of his estate after his death, and is, therefore, a complete and perfect will. An unfinished or incomplete will may be defined to be a paper which is not clothed with all the legal and formal requisites of a will, but which clearly expresses the final.and fixed intention of the testator as to the disposition of his property. An imperfect will, is a paper which however complete it may be in all other respects, does not express the full and whole intention of the testator, as to the disposition of his property. 1st Williams on Ex’rs, 50: Montefiore vs. Montefiore, 2d Ad. 357. The reason of this distinction between these two classes of instruments will be at once perceived* if we reflect for a moment upon the nature of last wills and- testaments. What then is a will? It is the intention of the testator as to the disposition which shall be made of his estate after his death, clothed in the necessary legal forms; two things only then need concur in an instrument to constitute it a valid will; that it contain the fixed and final intention of the maker, and have the necessary forms. Try the paper whose validity is in contest by this rule. Does it express the intention of the testator as to the disposal of his property? The papec itself answers that question. It provides that his real qnd personal estate shall be sold and its proceeds appropriated to the payment of' the sev.eral money legacies bequeathed by it, but his intention in respect to this disposition and appropriation of his real estate cannot be effected, because the paper is unattested by two witnesses, which the law requires to make it valid to pass land; the land does not, , therefore, pass by it; but if it be set up as to his personal estate, the whole of that estate must either be consumed by those legacies or they must fail. Now it is beyond doubt that neither of these things were intended to be effected by that paper. What would have been the reply of Owen if he had been asked on the evening before his death, whether he intended that his real OState should descend to his heirs at law, and his personal estate go entirely to the money-legatees? It would doubtless have been, that such was not his design, but that his real estate should be appro-' priated to the discharge of those legacies. The court below, however, have discovered another and a different intention for him. As there is a rule of construction sometimes acted upon in courts, which would authorise in a proper case, perhaps, the payment of the legacies entirely out of the personal estate,- that court has held the will valid as to those -legacies. . This is not to find what was the will of the testator as to the disposal of his property, but to make a will for him. He says, “my will is, that my real estate shall be appropriated to the discharge of those legacies.” No, says the court, they cannot be paid out of that fund, for the want of the necessary legal formality in the execution of the paper, but then they shall be paid wholly out of his personal estate.
    This case may be regarded in another aspect. If the intention of the testator constitutes one of the chief requisites of a will, where must that intention or the evidence of it be looked for? In the terms of the paper? or, in a rule of construction, acted upon in the courts of equity, of which he had, when he prepared the paper, not the slightest idea? Whether a paper be the will of a particular individual, certainly depends upon whether he so intended it to be. But the rule adopted in this case makes it rest upon the fact, whether the ingenuity of the courts can discover any mode of construction by which they can give effect to the instrument, howeverdif-ferent that effect may be from the one the testator , designed it to have. This is certainly too dangerous and arbitrary a power to entrust any judicial tribunal with. If established, the wills of individuals will not be such dispositions of their property as they intended to make, but such as the courts see fit to make for them. The rule,as to imperfect papers is thus stated by Sir John Nichol, in his judgment in the before cited case of Montefiore vs. Montefiore> 2d Ad. 342: “It must be clearly made to appear upon a just view of all the circumstances of the case, that the deceased had come to a final resolution in respect to it, as far as it goes; so that by establishing it even in its imperfect state, the court will give effect to, and not thwart or defeat the testator’s real wishes and intentions, in respect to the property which it purports to bequeath, in order to entitle such a paper to probate, in any case, in my judgment.” Let us try the alledged will of Owen by this test. Will the court give effect to the real understanding and intentions of Owen in respect to the estate bequeathed by this paper, by setting it up as his will as to the personalty alone ? This question is answered by the charge of the court below, that the paper is not valid to pass the*real estate which was designed by the testator to constitute part of the fund to discharge his legacies. It is no answer to this question, to say such a construction may be given the paper as will render the legacies effectual, by paying them wholly out of another fund, since that very proposition contains the admission, that such was not the intention of the testator; it therefore thwarts and defeats his real wishes and intentions. If, therefore, Sir John Nichol has laid down the law correctly, this paper cannot be established as the will of Owen; and that he has laid down the law correctly is apparent from the authorities. Thus Williams says, “where there is a mere want of execution in a paper which is complete in other respects, the court will presume the testator’s intentions to be expressed in such paper on its being satisfactorily shown, that the non-execution did not arise from abandonment of those intentions so expressed; but where a paper is incomplete in the body of it, the court must be perfectly satisfied by proof: First. That the deceased had finally decided to make the disposition of his property expressed in the imperfect paper. Secondly. That he never abandoned that intention, and was only prevented by the act of God from proceeding to the completion of his will.” Surely the case where the paper propounded as a will, fails to make the disposition of his property expressed in it, from its being so imperfect as not to pass the whole of that property, falls within the rule thus stated by Williams, and cannot be set up in part. Griffin vs. Griffin, 4 Yes. 197: Sanford vs. Vaugn, 1st Phil. 48: Devereaux vs. Bullock, ibid. 60: 3d ibid. 104: 3d ibid. 504: Forbes vs. Gordon, 3d ibid. 614: 1st Adams, 129: ibid. 52: 1st Ad. 399: Jameson vs. Cook, 1st Hag. 82: 1st ibid, 140: ibid. 661: ibid. 485, 551, 643 : 2d ibid. 249. Indeed, the very reason assigned by the judge below, as the ground on which the will should be sustained, is the precise reason why it cannot be. The court said, if it appeared that the testator had expressed his final and fixed purpose and intent with regard to the legacies given, then the will could be set up as far as it had gone. Now that position is decisive against the validity of the will. It cannot be denied, that th e full purpose and intent of Owen was, that the legacies given should be paid out of the land as well as the personal estate. How does a paper, imperfect in this way, differ from one in which the imperfection is in the bequest itself. Here the object of testator is, that the whole paper shall constitute his will, and pass both his real and personal estate as a fund to discharge his legacies. There was no intent to bequeath the personal estate alone. It is doubtless true that the testator expressed his full purpose and intent, as to the persons who should take legacies, and as to the amount of those legacies. But then it is just as true that this was not his whole intent. It is beyond question, that there was a further purpose and intent, and that was, that those legacies should not be paid out of his personal estate alone, but that they should be discharged out of his whole estate, real and personal. This is like the devise of an estate upon condition, and falls within the principle laid down in Shepherd’s Touchstone: “But if a man bid the notary write a devise of his land to J. S. upon condition, and the notary write a devise to J. S., but the testator dieth before he can write the condition, in this case the whole devise is voidp. 408. Here then was a condition in the mind of the testator, that his real estate should pass by his will, to aid in discharge of the legacies. The payment of the legacies is dependent, in his contemplation, upon his will passing the land. The case of Roose vs. Mousdale, 1st Ad. 3d Eel. Rep. 48, sustains the position, that such a paper as this cannot be established as a will. There the court go upon the principle, that where the testator regarded a paper as a finished and complete will, and meant it to operate as such, it may be established, though it be unfinished. The corollarv from that principle is, that if the facts show he did not regard it as a perfect instrument, it cannot be established, or though it be perfect on its face as to the disposition of his estate, yet, if it can only be set up in part, and thus becomes imperfect, it cannot be his will. Maslerman vs. Maberly, 2 Hag. 235: 4th Eel. 103. Here the disposition of the personal estate did not depend upon the devise of the realty. The same remark is applicable to all the other cases before cited, in which there were bequests of personalty and devises of realty, though, indeed, in a greater portion of those cases the papers propounded, contained bequests of personal estate alone. It is an entire misapprehension of the ground on which the validity of this paper is resisted to assume, as the counsel on the part of the defendant do, that resort is had to the construction of it, to show it cannot be set up. The state of the instrument at the time the testator ceased to work on it, and last saw it, is resorted to as evidénce, and conclusive evi
      
      dence, that he had no intention it should operate upon his personal estate alone, but that he regarded the whole paper as his will, and if it cannot be given effect to as a whole, his intention is “thwarted and defeated? and not rendered elective. The doctrine of construction as to legacies was resorted to by the Judge to escape from this dilemma; the counsel of Guthrie and wife made no allusion to that doctrine. The question upon which they asked the charge of the court, as will be seen from the last passage in his charge, was a wholly different and distinct one. There certainly cannot be a doubt entertained, that the state of the instrument, as it leaves the consideration of the testator, is a subject of contemplation as evidence to ascertain what was his intention. The case of Cartwright vs. Cartwright, is clear to show, that the state of the instrument may be looked to, to ascertain whether it be the will of the testator. There the proof was clear that the testatrix had been in a state of mental derangement, both prior and subsequent to the execution of the will, and the question was, whether the will was executed in a lucid interval, and the court decided from the face of the will alone, as it made a sensible disposition of her property, that it was a valid will; a sensible act being clear and full evidence of sanity in the testatrix.
   Reese, J.

delivered the opinion of the court.

Samuel Owen, in his last illness, and the day before his death, caused one of his neighbors to be sent for, with the purpose of having his last will prepared. He had for some years been unable to speak, but could readily communicate his thoughts by signs to the family, and also to them, and to others, by indicating words in a dictionary. He was in the full possession of his mental faculties. To the draughtsman of the paper propounded as his will, he indicated his wishes in the manner above stated, by pointing to the leading and important words in a dictionary. When the clauses were written in this manner, they were separately read to him, and he assented to each, and when they were all written he read the entire instrument as far as prepared, himself, and assented to the whole, and this comprised the entire instrument propounded as his will, except the appointment of an executor, and the attestation clause. The process of preparing the instrument was tedious and exhausting, the draughtsman not in good health, and at 10 or 11 o’clock at night, having completed the instrument to the point stated, the further progress in it was suspended. ^ Business required' the draughtsman to leave early in the morning, but he promised the deceased to return in the evening to finish the matter; he did then return, but Samuel Owen was then out of his mind, and incapable of .transacting business, and shortly after died. In the course of drawing up the paper, the draughtsman had learned from the deceased, that he wished James C. Owen to be his executor, and he, therefore, added the clause appointing him to that office, and the attestation-clause. The paper propounded as the will of Samuel Owen, is as follows ;

“I, Samuel Owen, do make and publish this my last will and testament, hereby revoking and making void all other wills by me at any time made. First. I direct that my just debts be paid, as soon after, my death as possible, out of any monies I may die possessed of, or may come into the hands of my executor. Secondly. I give and bequeath to my brother James C. Owen, my boy Stephen, my carriage, my gold watch, my young gray'horse by Sir William, also one thousand dollars of Turnpike stock, to wit, twenty shares in the Harpeth Turnpike. Thirdly.. I give and bequeath to my niece Narcissa Robert Owen my bed, my sorrel filly by Pacific, also one thousand dollars of Turnpike stock, to wit, twenty shares in the Harpeth Turnpike. It is also my will, that James C. Owen hold the above named items as agent for the above named Narcissa R. Owen, and use it as agent for her benefit, and in the event of her decease, without issue, it is my will that the said James C. Owen shall have said property. Fourthly. I give to my brother James 0. Owen, for the benefit of my three nephews, Burnett H. Beasley, Charles C. Beasley and Felix O. Beasley, and I hereby constitute and appoint him agent, to hold, to use and disburse for their (the said Beasleys) benefit, the following items, to wit, one thousand dollars in Turnpike stock, to wit, twenty shaz'es in the Harpeth Turnpike. Fifthly. I will and bequeath my executor sell my land, lying on Mill creek, also my negro man Tom, also my land in Warren and Cannon counties, to wit, my interest in these lands. I will to be sold also, all other property, of whatsoever description, of which I may die possessed of, and the proceeds of which, together with the, monies in my possession at the time of my decease, also the money due to me by bonds or accounts, when collected, to be appropriated as above bequeathed. If any surplus should remain in the hands of my executor — My desire is, that Tom should select himself a home, and be sold privately for a moderate price. Sixthly. I leave in the hands of my executor, of the money due me and to be raised as above directed, one hundred dollars for erecting tombs, and fifty dollars for fencing grave yard.” (I do hereby nominate and appoint James O. Owen my executor. In testimony whereof, I do, to this my last will, set my hand and seal, this 20th October, 1838. Signed, sealed and published in our presence, and we have subscribed our names hereto, this 20th day of October, 1838. Ferdinand Moore. Everett Owen.)

The above paper, except as to the latter portion of it, enclosed in brackets, containing the appointment of an executor, and an attestation-clause, and except, also, as to the real estate, was found by the jury in the circuit court, to be the last will and testament of Samuel Owen. Guthrie and wife, by their counsel, moved for a new trial, which being refused, they have prosecuted their writ of error to this court.

The correctness of the charge of the court, set forth in the record, has been but slightly questioned in the argument here, except in one particular, which we shall hereafter indicate. The argument of counsel has turned mainly upon the facts and circumstances attending the drawing up of the paper propounded, upon the state in which it was left, and the bequests contained in it. The instrument is unexecuted, and so far merely as relates to the appointment of an executor, and a clause of attestation, it is imperfect. It has not been controverted, that a paper unexecuted, and, in some instances, an imperfect paper may be set up as a testament, where the want of execution, or its being imperfect has been produced, not by abandonment, or change of purpose, on the part of testator, but by the act of God, that is, by extreme illness, mental alienation, sudden death, &c., if the paper, as far as it goes, express the will of the deceased, continuing to the time of his death, and if upon the face of the instrument it can be seen, that the legacies given to the objects of testator’s bounty, and the benefits conferred, would not, if the will had been finished, have been burthen-ed with charges in favor of others: in short, if it express his whole will ssfar as it goes.

The paper before us, was prepared slowly and with great deliberation, and under circumstances which made it more than ordinarily the work of testator himself. It was nearly finished; it probably comprised in its scope, all the objects of testator’s bounty, and the frame of the instrument, the nature of the bequests, and the powers conferred in order to raise the money to pay the legacies, make it manifest, that if any thing had been added, it would not have been in the nature of a deduction from the legacies, or a charge or burthen upon them. The manner in which the will was made, the deliberation and sanction of it, as a whole, the circumstances which suspended its progress to a full completion, and the brief interval which elapsed before testator became unable to complete it, repel the notion of any change of purpose, and warranted the jury in arriving at the conclusion, that it contained his will to the time of his death. We think this instrument is sustained by the principles so distinctly announced by Sir John Nichol, in the case of Montefiore vs. Montefiore, 2d Eng. Ecl. Rep. 342, a case on which the circuit court in its charge to the jury, and the counsel on both sides, seem to have much relied. The learned and able judge in that case, observes, “that the legal principles, as to testamentary papers of every description, vary much as to the stage of maturity, at which those papers have arrived. The presumption of law, indeed, is against every testamentary paper not actually executed by the testator. But if the paper be complete in all other respects, that presumption is slight and feeble, and one comparatively easily repelled. But where a paper is unfinished, as well as unexecuted, (especially where it is just began, and contains only a few clauses or bequests,) not only must its being unfinished and unexecuted be accounted for, but it must also be proved (for the court will not presume it) to express the testator’s intentions, in order to repel the legal presumption against its validity. It must be clearly made to appear, upon a just view of all the facts and circumstances of the case, that the deceased had come to a final resolution respecting it as far as it goes, so that, by establishing it, even in such its imperfect state, the court will give effect to, and not thwart or defeat, the testator’s real wishes and intentions, in respect to the property which it purports to bequeath, in order to entitle such a paper to probate, in any case, in my opinion.” In the many cases referred to, or existing on this subject, there is, perhaps, none which contains language or announces a principle subjecting papers of this description to a severer test, when propounded for probate. Yet, the case before us, is so made out, we think as to abide that test. The chief argument, however, against the validity of the instrument upon the record, offered to us here, attempts to seek its support in the principle stated, that the court must see to it, that in establishing such unfinished paper, they give effect to, not thwart and defeat the real wishes, and purposes of the deceased. For it is said, his will was, that his land should be sold and you cannot, therefore, give effect to the entire wish of the testator. But this is a mistaken view of the matter. The real wishes and purposes of the deceased, referred to by Sir John Nichol, relate to the objects of testator’s bounty, who, if the will had been finished, might have been brought forward to participate in some •measure in the bequests given to those named. If the real as well as the personal estate be given to the same objects of the testator’s bounty, or the real estate be directed to be sold to pay legacies to them, and the paper is not so finished and so executed as to pass real estate, you cannot be said to thwart and defeat the real wishes of the testator, if you give to the objects of his bounty, all you can, the personal estate. To refuse to do that, because you cannot give effect to his entire wishes in their behalf, nor make his bounty so ample, as he intended, would be to thwart and defeat, not to give effect to the sense and meaning of Sir John Nichol. If, indeed, in an unexecuted instrument, personal property be given to A, and real to B, and from sudden death, the testator cannot finish the instrument so that the land cannot pass, it might be doubtful, whether in such a case, if the will were set up, as to the personal property, the real wishes of the testator, if he could have foreseen such a state of things, would not be defeated thereby. But here the land is to be sold to pay the money-legacies, for it is in proof, that the testator had not Turnpike stock, and, therefore, meant the money-legacies to be so invested. What the court says, in its charge to the jury, on the subject of the course of a court of chancery, where .a charge is made on both real and personal property, that the latter must be first sold and exhausted before the former can be called in aid, is admitted by the counsel of plaintiffs to be correct, but is alledged to have been misplaced and irrelevant, and calculated to mislead the jury. We do not perceive the ground on which the plaintiffs in error, can complain of that part of the charge, nor how, if it were held to be irrelevant, it could have misled the jury.

Upon the whole, we think, there is nothing which on grounds of Jaw or fact, ought to disturb the verdict and judgment which have been rendered in the case, and we, therefore, affirm them.  