Deakins v. Hollis ( 1835 )

Archer, Judge,

delivered the opinion of the court.

The probate of the will mentioned in the petition is resisted by the defendant, who produced a paper purporting to be the will of John Hollis, bearing date, according to the proof, subsequent to the will of which probate was offered. This last instrument makes the debts a charge upon the lands, and directs that his slaves shall not be sold out of the State.

These dispositions do in our judgment render the instrument subject to the same proof as is demanded for a will: and it cannot be considered merely as a revocation, although it undoubtedly operates as such.

If proof had been exhibited that William W. Webster, and Francis Hollis, had been the next of kin to the deceased, and so entitled to his estate, we should be entirely satisfied that they were both rendered competent by the adduction of their deed to James Hollis, so far as the will may affect the real estate. For whatever maybe the effect of the word “ Dedi” as importing a warranty, in relation to which we intimate no opinion, we are entirely satisfied that in this conveyance, which only purports to pass the rights of the parties, and not the land itself, to give to the term the signification and legal efficacy contended for, would contradict the clear intention of the parties, as it is to be collected from the description of the thing conveyed, and from the whole structure of the instrument.

But there exists no evidence which disqualifies either of these witnesses from attesting the will, either as to the real or personal estate. It is proved that the one is the brother-in-law of the testator, and the other the sister, but we have no evidence before us to shew that he left no children, which evidence should have been adduced, before the more remote kindred could be disqualified.

The proof then of these two witnesses, we think suffi■cient to admit the will to probate, at all events as a will of personal property.

They prove all the requisites to the attestation of a will even of real estate; that the will was executed by the testator in their presence, and that they signed it in his presence as witnesses, and that it was executed, and attested in the same manner before, and by the other witnesses.

The reception of proof as to the mistake in the date of the will, does not, as we apprehend, at all interfere with any established principle. The date is no part of the will of the testator, and if it had no date, or a wrong date, as it appears to have, the real time of its execution, might be proven. The same rule exists as regards all other instruments of writing, and we can perceive no reason why a will, in this respect, should be placed on different grounds from other deeds.

DECREE OF THE ORPHANS* COURT AFFIRMED.