Marr v. Marr

• Decision Date: 30 April 1859
• Parties: R. P. MARR et al. v. JOHN MARR et al.
• Court: Tennessee Supreme Court

39 Tenn. 303

R. P. MARR et al.

v.JOHN MARR et al.

Supreme Court of Tennessee.

April Term, 1859.

FROM WEAKLEY.

The venue in this cause was changed from Obion to Weakley county, and a trial had at the October term, 1858, Fitzgerald, J., presiding. Verdict and judgment against the will. The plaintiffs appealed.

I. G. Harris, Freeman, Somers, and Cochran & Enloe, for the plaintiffs, relied upon the following authorities.

Acts of 1784, ch. 10, sec. 5; Crutcher v. Crutcher, 11 Humph. 385; 1 Greenl. on Ev., sec. 200; 3 Yerg. 25;Allen v. Huff, 1 Yerg. 409;Young v. Crowder, 2 Sneed, 156;Tate v. Tate, 11 Humph. 465;1 Swan, 119; 1 Sneed, 1.

M. R. Hill, Ethridge and Gardner, for the defendants.

Caruthers, J., delivered the opinion of the court.

This case is now before us the second time. It is a suit for the probate of the will of G. W. S. Marr, deceased, upon an issue of devisavit vel non in the Circuit Court of Obion. This appeal in error is to reverse a judgment against the validity of the will, upon the new trial granted to the plaintiffs at our last term. We then reversed upon errors of law in the charge of the court, in relation to the effect to be given to a label on the bundle of papers in which it was found, as may be seen from the report of the case in 5th Sneed. And now the error assigned, is supposed to be found in this clause of the charge: “But if you find that he kept it in a manner that satisfies you that it was a paper not cared for, but repudiated by him, or you are otherwise satisfied, than from the manner of keeping, that it was a repudiated paper, and not intended by him to operate or have effect as his will, then you will find for the defendant.”

Again, in reply to a request by the plaintiff's counsel, to charge that “if G. W. L. Marr, the deceased, prepared the paper in dispute, and placed it among his valuable papers before his death, that the law presumes it is his will, unless he revoked it.” The court said, “if the said paper was written by Marr, and placed among his valuable papers in his lifetime, it would be the will of said Marr, unless he afterwards revoked it, or repudiated it, and did not keep it with intent and purpose, that it should operate as his will, as before charged.”

The court rejected an application by the counsel, to instruct the jury that “G. W. L. Marr could not have revoked the paper writing here as his will, if he prepared it and placed it among his valuable papers or effects, unless he did so by a paper writing of the same dignity of the one propounded.”

Much difficulty has been experienced by the courts of this State and those of North Carolina, in the construction of the act of October, 1784, ch. 10, sec. 5, providing for holographic wills, and prescribing the requisites for their validity. Before that, no will for land was good unless it were signed and acknowledged before two subscribing witnesses. This act made an exception in favor of wills of this description. The first requirement is, that “where any will shall be found amongst the valuable papers or effects of any deceased person, or shall have been lodged in the hands of any person for safe-keeping,” etc.

What is meant by valuable papers? No better definition, perhaps, can be given, than that they consist of such as are regarded by the testator as worthy of preservation, and, therefore, in his estimation, of some value. It is not confined to deeds for land or slaves, obligations of money, or certificates of stock. Any others which are kept and considered worthy of being taken care of by the particular person, must be regarded as embraced in that description. This requirement is only intended as an indication on the part of the writer, that it is his intention to preserve and perpetuate the paper in question as a disposition of his property; that he regards it as valuable. This is the only point in the requirements of the statute, about which there was any controversy in this case, all the others having been fully made out.

But the courts have, however, properly held, that even if these requirements all concur, yet the paper may not be valid as a testament. It is to be a “will” thus found; and not every paper so deposited, is, necessarily, to be established, though it may be in proper form, in the handwriting, signed, etc. It is still open to attack on various grounds; such as, that the testator was of unsound mind, operated upon by undue influence, fraud, or duress, or that it was never legally assented to by the deceased as a complete and finished act to any extent. To be “found among his valuable papers,” implies that it must have been placed there by the writer, or with his knowledge and assent, not surreptitiously by some other person, and so deposited with intent and purpose at the time that it should be his will. But when all that is done in conformity to the statute, it is equivalent to a publication; it requires something more than verbal declarations to revoke or defeat it. There must be some act done indicative of a change of purpose, such as the cancellation, destruction, or removal from the place of deposit, or reclamation from the hands of the person with whom it may have been lodged.

Chief Justice Best, in 15 Con. Law, 491, in reference to a witnessed will, said: “It has been insisted that declarations of the testator were admissible in evidence, to show that the will he had executed was not valid, but no case had been cited to support such a position, and we shall not, for the first time, establish a doctrine which would render useless the precautions of making a will, for if such evidence were admissible, some witness would constantly be brought forward to set aside the most solemn instruments. Such a doctrine would be not only in the highest degree inconvenient, but contrary to the first principles of evidence, according to which, the will itself is the best evidence which the nature of the case su...