#### BRYANT BENNEET, EX’R &c. vs. ELIZABETH SHERROD.

June 1843

When a will is found among a deceased person’s papers, immediately after his death, in a mutilated condition, the presuption of law is, that the act of tilation was done by him in his lifetime, and for the purpose of revocation.

The same presumption arises, where the repository of the will was equally accessible to a stranger and to the deceased in the lifetime of the latter.

But no such presumption arises, but rather the contrary is to be inferred, when the will is not found mutilated until two days after the death of the testattor — when in the meantime it has been under the control or in the custody of one interested to defeat it, and who refused, when it was first demanded, to produce it, and did not then allege that the will was mutilated.

Appeal from the Superior Court of Law of Martin county, at Spring Term, 1843, his Honor Judge Manly presiding.

This was an issue to try whether a certain instrument of writing, propounded by tne plaintiff, was the last will and testament of John Sherrod, deceased. It was proved that' the writing had been once executed with all the formalites necessary to constitute it a will of real and personal estate, and placed in the custody of JBryan Bennett, the present plaintiff, and the person nominated therein as executor — that some time afterwards tire deceased became dissatisfied with the will, in respect to the provision made therein for his sister, and desired to add to the bequest to her another slave and a small sum of money — that he also desired to make his son a co-executor with the plaintiff or to substitute him as sole executor — and that, for the purpose of making these alterations, he procured his will from the plaintiff and carried it back to his own house. It was further proved that, on the day after the decease of the said John Sherrod, application *304was made, in behalf of the plaintiff, to the widow, the present defendant,, for the will, to which she replied, that there was one there, blit it was not her husband’s will nor was it her will j that, at any rate, if it was his, it was not hers, and she would not stand to it — that she then went into an adjoining chamber and consulted with a female acquaintance* whether she would give up the will — and that after a while she took the key of the drawer where the paper was and put it into her bosom. The papers of the deceased were examined, the day after the first application, by the plaintiff and one of the subscribing witnesses to the will and others, when the instrument in question was found in the drawer with the names of the testator and subscribing witnesses cut out. In other respects if was identical with the paper, which had been executed as above stated. It was in evidence, that the deceased had declared, if he should die without a will, he wanted his sister to have the slave he intended to give her and one hundred dollars — that he also declared, after the making of the will, that he intended to make a will.

The Judge instructed the jury to inquire, first, whether this instrument had ever been executed with the formalities necessary to constitute it the will of John Sherrod. Upon this point they were informed what were the requisite solemnities for making a valid will of real estate, and directed to respond in the affirmative or negative, accordingly as they •were satisfied by the testimony that these requisites had or had not been complied with. The paper writing being once duly executed and published as a will, the jury were next instructed, it would remain good as a will, until it was revoked in some of the modes required by law. To this end it was necessary there should be a paper writing in a certain form, of which in this case there was no evidence ; or else a destruction, obliteration or cancelling of the will by the testator; or by some one in his presence, and in pursuance of his directions. If the jury, upon a consideration of the evidence, came to the conclusion, that the cutting out of the signatures from this paper was done by the testator Sherrod, orby any one in his presence and by his directions, they should return a verdict that it tvas not his will. If, however, they *305came to an opposite conclusion, then it was immaterial when it was done or by whom ; it would be their duty to find it the last will and testament of the deceased. The court, in conclusion, remarked to the jury, that it could hardly be necessary, after what had been already said, to inform them that the conversations of the supposed testator, as to his satisfaction of the will- — his desire and intention to alter his will — and the like, were laid before them, not as proof amounting in themselves to a revocation, but as tending to throw light upon the enquiry, whether the mutilation described was done by the deceased or by any one for him and in his presence.

The counsel for the defendant asked the court to instruct the jury, if they believed the instrument of writing was found in the possession of the deceased in a mutilated state, that there was a presumption of law that the mutilation was the act of the deceased, subject to be rebutted by the parties propounding the will. The conrt declined giving this instruction.

There waa a verdict establishing the will, and from the judgment thereon the defendant appealed.

No counsel for the plaintiff.

Badger for the defendant.

Daniel, .1.

The authorities cited by the counsel for the appellant shew, that, where a will has been duly executed a nd left with the testator, if it be mutilated in his lifetime while in his possession, or upon his death if it be found among his repositories, cancelled or defaced, in such cases, in' the absence of other proof, the testator is presumed to have done the act; and the law further presumes, that he did it animo revocandi. And if the repository of the will was at the same time accessible to the testator and another person and the mutilation was done in the lifetime of the testator, the law would presume it was done by the testator. He *306had a right to do it, and a fraud will not be presumed in the other person. All the rules above stated, we think, may be taken for good law, but it seems to us that they are not apposite to the case now before us. There is no evidence in the cause, that the will was found mutilated in the lifetime of the testator, or found mutilated among his papers immediately on his death. It was on the day after his death that application was made to his widow for the will. She, who is the party defendant in this issue, acknowledged that the will or paper was there, but refused then to deliver it. She then locked the drawer, where the paper was, and put the key in her bosom. There is no evidence that the will was, at that time, mutilated, for her declarations then,made do not prove that fact, but rather import the contrary. On the second day after the testator’s death, and after the widow had every opportunity of mutilating the paper, with which she was dissatisfied, the will was found by the plaintiff in the drawer in its present state. It seems to us, so far from its being the duty of the judge to charge the jury, that the law presumed this mutilation to have been the act of the testator, that it would have been erroneous if he had so charged. We are of opinion that the judgment must be affirmed.

Per Curiam. Judgment affirmed.