tation to a will is required, or where olograph wills are allowed.12

6. It is perhaps true, as said by Lord Hardwicke,13 that “there is nothing which requires so little solemnity as the making of a

12 1 Jarman on Wills, 114 and notes. The following abstract of the English cases upon the rule applicable to wills of personalty under the statute of frauds, may be useful: Instructions for a will may, by the ecclesiastical law, be as operative as a will itself (Heberfield v. Browning, 4 Ves. 200, in n.; 1 Wms. Exrs.51–57, 86, 89, 4th ed.), although if a paper be superscribed "heads of a will," or "plan of a will," the inference would be from this, that it was intended that a more formal will should be drawn out, 1 Phillim. 350. See Hocker v. Hocker, 4 Gratt. 277: yet in a case where such an instrument was dated and signed, and indorsed," intended will,” and alterations in it afterwards made in a formal manner, and the deceased declared, upon being taken ill," that he had written over the heads of his will, and signed it; that it would do very well;" the paper was established as a will. (Bone v. Spear, 1 Phillim. 345; see Popple v. Cunison, 1 Add. 377; Barwick v. Mullings, 2 Hagg. 225; Lillie v. Lillie, 3 Hagg. 184.) We have stated many of these cases more in detail in other portions of the work, as illustrative of other points, where they arise. See Hattat v. Hattat, 4 Hagg. 211; post, pl. 14. It is not always easy to choose between a repetition and too many references backwards, and forwards.

In another case, Torre v. Castle, 1 Curt. 303, the question was, whether a document was entitled to probate as a part of the testamentary disposition of Lord Scarborough: It was all in the handwriting of the deceased, and was subscribed by him, and dated 11th of Oct., 1834. At the commencement it was described to be, "head of instructions to my solicitor, J. Lee, to add to my will the codicil following." It went on to state what the contents of the codicil were to be. There were initials for several of the legatees, with the words, &c., &c., in many parts of it. But it concluded in these words, "This is my last will and testament, Scarborough," and was indorsed, "Memm. to J. Lee Will Oct. 11, 1834." Sir H. Jenner Fust pronounced for the validity of this paper, and decreed probate thereof, being satisfied by parol evidence, and the circumstances of the case, that the deceased intended the paper to have full operation, in case any thing should happen to him before he had an opportunity of going, or before it was convenient for him to go to Mr. Lee, for the purpose of having a more formal instrument prepared. And on appeal to the Privy Council, the

13 Ross v. Ewer, 3 Atk. 156.

will of personal estate, according to the ecclesiastical laws of this realm, for there is scarcely any paper writing which they will not admit as such." And all writers upon the subject agree, that before the late English statute,14 almost any form of instrument, or memorandum, might operate as a testamentary disposition of personal estate, if only made with a view to have it operate upon property rights after the decease of the maker.15

Judicial Committee affirmed this decision. Castle v. Torre, 2 Moore, P. C. C. 133. But it should be remarked, that the paper, in this case, was not regarded as amounting to an actual testamentary disposition, and entitled to probate, proprio vigore, but as instructions fixed and final, containing the settled intentions of the writer, up to the last moment of his life, and only prevented from being formally carried into execution, by his own sudden death. 2 Moore, P. C. C. 175.

It should be observed, that in these cases, where the character of the paper is upon the face of it equivocal, the case is open to the admission of parol evidence of the testator's intention, as to whether he meant the instrument as memoranda for a future disposition, or to execute it. Mathews v. Warner, 4 Vesey, 186; 5 Vesey, 23; Mitchell v. Mitchell, 2 Hagg. 74; Coppin v. Dillon, 4 Hagg. 361 ; Salmon v. Hays, 4 Hagg. 382; Torre v. Castle, 2 Moore, P. C. C. 154.

There are many American cases where wills of personalty have been maintained upon grounds similar to those above stated. In Watts v. The Public Administrator, 4 Wend. 168; s. c. 1 Paige Ch. 347, where a testamentary paper was found in an iron chest, among the valuable papers of the deceased, without being signed by the testator or by witnesses, but there being an attestation clause, and the will appearing to be made by the testator, with his name at the beginning, the court of errors reversed the decree of the Chancellor, and held the will valid as to the personal estate. The reason of the case, and the law, would seem to be with the Court of Chancery; but being one of those hard cases, which make so much bad law, it is not wonderful to find the court of last resort, especially when it is numerous, yielding to the pressure of strong equitable considerations. The following cases, in South Carolina, embrace the same principle: Witherspoon v. Witherspoon, 2 McCord, 520; McGee v. McCants, 1 id. 522; Milledge v. Lamar, 4 Dessaus. 623. In the former of these cases, Johnson, J., said: There were numberless cases, in which papers wanting the signature of the testator, have been admitted to probate; but always on proof of extrinsic circumstances, to show the animum testandi.

7. And similar laxity of construction has prevailed in many of the American states, under similar statutes. As where the payee of a promissory note, made a special indorsement to the effect that, if he were not living at the time of its payment, he ordered the contents paid to a person named, and died before the note was paid, the indorsement was held to be of a testamentary character, and entitled to probate as a will.16 But papers of a similar character, depending upon contingency, which had not clearly transpired, have been denied the testamentary character. And a deed, which in terms was not to operate until after the decease of the grantor, has been held testamentary, and as such admitted to probate.18 And there have been cases where a will, defectively executed as a will of real and personal estate, has been admitted to probate as a testamentary disposition of personal estate.19 But the presumption is always against an imperfect paper operating as testamentary, even where the law of the state requires no particular formalities in the disposition of personalty: And where the paper, on its face, is equivocal, it must clearly appear that it was intended by the maker to operate as a disposition of his estate after death.20

8. But the English ecclesiastical courts have held that it is not requisite, in order to have a paper operate as testamentary, that the maker should have so intended, in all cases, since if the paper contains a disposition of property of the maker, to become, or to be, operative after the death of the maker, but was not intended by him to operate as a will, but as a settlement, or a deed of gift, or a bond, if it cannot, for any reason, operate in

16 Hunt v. Hunt, 4 N. H. 434. But such an indorsement could not operate as a donatio mortis causa. See post, Vol. II.

17 Wagner v. M'Donald, 2 Har. & J. 346; Todd's Will, 2 Watts & S. 145.

18 Gage v. Gage, 12 N. H. 371; Ingram v. Porter, 4 McCord, 198; Milledge v. Lamar, 4 Dessaus. 617.

19 Guthrie v. Owen, 2 Humph. 202.

20 1 Wms. Exrs. 91, 92, and cases cited.

that form, the courts have sometimes allowed it to operate as

testamentary.21

9. But it is not to be inferred from this, that a paper which was not intended to have any operation, as a paper drawn up in the form of a will, but not in seriousness and earnest, animo testandi, or as merely preliminary to the settling of a will, can have any operation.22

"Bartholomew v. Henley, 3 Phillim. 318. See also, Masterman v, Maberly, 2 Hagg. 247; post, n. 41.

"Nichols v. Nichols, 2 Phillim. 180; Trevelyan v. Trevelyan, 1 Phillim. 153; Swinb. pt. 1, § 3, pl. 23, 24, 25. The words of this early writer are here very significant. That whatever a man may say, as to his present purpose, in regard to the future disposition of his estate, is no will, "unless it be proved that the testator, at the time when the words were spoken, had animum testandi, that is to say, a mind or purpose then and thereby to make his testament or last will." "So when the testator doth only foretell," or "much less when as any man rashly, boastingly, or jestingly affirmeth, that he will make this man his executor, when he hath no meaning at all, neither at that time or at any other time, to make him executor. For without meaning, or consent of mind, the testament is altogether without life, and is no more a testament than a painted lion is a lion."

...

It may be useful to remember, that where the paper offered for probate bears upon its face the form and character of a will, the presumption of law will be in its favor, and will thus impose upon those who contest the probate, the burden of showing that it was not in fact executed animo testandi. And on the other hand, where the paper is not apparently designed for a will, those who claim to have it operate as such will assume the burden of showing that it was so executed that it can fairly be allowed to have such an operation. 3 Hagg. 221; Griffin v. Ferrard, 1 Curteis, 100; Coventry v. Williams, 3 Curt. 790, 791; post,

n. 27.

Since writing the foregoing, strangely enough, the decision of Sir J. P. Wilde, of the Court of Probate, in England, in Lester v. Smith, 10 Jur. N. s. 107 (1864), has reached us, and we there find, what we regard as a full confirmation of the preceding suggestions. The case is of so much interest upon the question, and so generally inaccessible to the profession here, that we shall give the summing up to the jury, and the opinion of the learned judge, at length, as being the most valuable commentary we could give.

Sir J. P. Wilde, in summing up, said: "The facts of the case lie in a very

10. It is not uncommon in the ecclesiastical courts to admit numerous papers to probate, as constituting, in the whole, the

small compass, but the question is of great importance; for if, after the death of a testator, a person who had been present at the execution of a will, solemnly signed and attested, can set aside that will, by swearing that the deceased, who executed it, meant it to have no operation, but to be a mere piece of waste paper, all wills will be deprived of much of that sanctity and security which now attaches to them. The simple question for you to answer is, whether you are satisfied that the codicil was intended by the deceased to be a mere piece of waste paper, nothing but a sham. I must tell you the presumption is, that it was intended to be an effective instrument, and it is the duty of those who contend otherwise to establish that proposition very clearly."

The jury found that the deceased did not sign the paper with the intention it should have a testamentary operation. Dec. 22. Tristam, on behalf of the executors, moved for probate of the will only.

Sir J. P. Wilde: "This is a most remarkable case, and one which, since the trial, has given me some anxiety. The question raised is, whether a certain codicil is or is not entitled to be admitted to probate. It is regularly executed by the testator, but evidence was given at the trial that the testator never intended it seriously to operate as a testamentary document. It was proved before the jury that the testator wished one of his family to give up a house, which she then occupied, and that to force her to do so, He made pretence of revoking, by codicil, a bequest which he had made by will in favor of the daughter-in-law of this woman, and that the paper in question was made with that sole object; that the testator sent his attorney instructions to prepare it with that intention, and informed him before it was drawn that he never wished it to operate at all. Further that the attorney pointed out the folly of executing such an instrument, and would have nothing to do with its execution. It was, however, executed in the presence of the testator's brother, to whom it was then given by the testator, with express directions that he was not to part with it; and that it was in no event to operate, or to revoke the bequest made in his will, but to be used only in the manner above described.

"Similar declarations were made by the testator at the moment of its execution. A codicil thus duly executed in point of form, and attested by two witnesses, has been directly impeached by parol testimony. It bears all the appearance, on the face of it, of a regular testamentary act; but on the evidence, it has been found by the jury not to have been intended as such by the testator. The momentous consequences of permitting parol evidence thus to outweigh the sanction of a solemn act are obvious. It has a tendency