Richmond.
Hocker v. Hocker & als.
(Absent Allen, J.)
1848. January Term.
A paper writing, though in the handwriting of the deceased and signed by him, held not to be a testamentary paper.
Adam Hocker died suddenly on the 4th of February 1847. He was an old man, uneducated, but of good understanding.
At the March term of the County Court of Buckingham, his son, Robert K. Hocker, offered for probat a paper purporting to be the will of Adam Hocker deceased, duly executed and attested, and bearing date on the 26th of February 1836. George Hocker, John Hocker and Patterson and wife opposed the admission of this paper to probat, and propounded for probat another paper bearing date the 18th of January 1847.
The County Court rejected the first mentioned paper, and admitted to probat that of the 18th of January 1847: and thereupon Robert K. Hocker appealed to the Circuit Court. At the April term of the Circuit Court, Robert K. Hocker offered for probat the will of February 1836, the execution of which by Adam Hocker was proved by one of the attesting witnesses, and the handwriting of the other attesting witness who was dead, *278was proved. The other parties then offered for probat the paper of January 1847. which was proved to be wholly in the handwriting of Adam Hoclcer deceased, and is, after correcting the spelling, as follows:
Directions how I want my will wrote : The two girls that I left my daughter Margaret Patterson, have value at 600 dollars; the two girls that I left E. Glover, have I value at 600 dollars; the woman 3 children that I left my son, Robert K. Hocker, have I value at 1000 dollars; the land that I left my son, William Hocker, have I value at 3000 dollars, that I they all ready got; the negroes that I have in-possession it — my wish that they shall be valued, and make their choice which of the legatees they will go to live with ; the mill and land attached to it, let it be sold to the highest bidder; the house that I live in. let it be sold to the highest bidder; the household and kitchen furniture, let it be sold to the highest bidder; the stock, together with the farming utensils, also be sold to the highest bidder.
Signed,
A. Hocker.
January 18th, 1847.
By the will of February 1836, the testator gave to his son George, his mill and land adjoining it, which he valued at 14,000 dollars ; and he required George to pay to his other children 11,000 dollars; and it appeared that for some time previous to the death of Adam Hocker, this property was not worth more than 8000 dollars.
It appeared that both the above papers were in the same desk at the time of the death of Adam Hocker, though they were not found together. It appeared too that he had purposed for years to alter his-will, and that he said to several persons that he wished them to write a will for him. At the December Court 1846 he requested a Mr. Holman to come to his house and write a will for him, stating to him that he had a will that had *279been written some ten or twelve years, but that owing to the change in the value of property since the time when that will was written, he wished to change it. And he stated that the provisions of his will would be completely altered; and when Holman came up to his house he would furnish him with instructions how to write it.
William Hocker a son of Adam Hocker, released his interest, and was examined as a witness. He stated that he was at his father’s house between the 1st of November and the middle of December 1846, when his father stated to him that a contract between himself and his son George about the sale of the mill, had failed; that if he had succeeded in having that contract closed, he intended immediately to have got Mr. Shaw to write his will. He then asked witness if Mr. Lewis who had been a neighbour of his, and a man of property, did not write his own will, and was told that he did. He then asked if there was any difficulty about Mr. Lewis' will. Witness told him there was some little objection made to it by Mr. Thomas. He then said he would write his will, but that he was out of the habit of writing, he did not spell well, nor dictate well, but that he wanted each one of his children to get an equal share of his estate. He would therefore leave a paper and charge each one of his children with what they had had, and leave the balance to be sold and equally divided among his children by that paper; each one accounting for what he was charged with; by which paper he said he wanted all his children to be governed. He then stated the sums with which he would charge several of his children, some of which were remembered by the witness, and were not materially variant from the sums charged to them in the paper of January 1847.
The Circuit Court reversed the order of the County Court, rejecting the paper of the 26th of February 1836, and admitted that paper to probat. And the Court also *280admitted to probat the paper of the 18th of January 1847 as a codicil to the will of February 1836. To this opinion of the Court admitting the last mentioned paper to probat Robert K. Hocker excepted, and applied to this Court for a supersedeas, which was granted.
The Attorney General for the appellant, and Cooke for the appellees, submitted the case.
Baldwin, J.
delivered the opinion of the Court.
The Court is of opinion that there is no error in so much of the judgment, sentence and order of the said Circuit Court as reverses with costs the sentence and order of the County Court; nor in so much of said sentence and order of the Circuit Court as rejects the paper writing propounded by the appellees as and for the last will and testament of Adam Hocker deceased, dated the 18th of January 1847, and establishes and admits to pro-bat as and for the last will and testament of said Adam Hocker deceased, the paper writing propounded by the appellant, dated the 26th of February 1836: but that so much of the said sentence and order of the said Circuit Court as establishes and admits to probat the said paper writing of the 18th of January 1847, as and for a codicil to the said last will and testament of the 26th of February 1836, is erroneous: It is therefore considered that so much of the said judgment, sentence and order of the Circuit Court as is above declared to be erroneous, be reversed and annulled, and that the residue thereof be affirmed, with costs to appellant here. And this Court proceeding to pronounce and render such sentence and order as the said Circuit Court ought to have made and rendered, instead of so much of its said sentence and order as is above declared to be erroneous, doth further order that the said paper writing of the 18th of January 1847 be wholly rejected.-