— From the course pursued in -this cause, in the Court below, this Court is now to determine, whether, from the facts in evidence, the paper offered for probate, is the last will and testament of Sarah Couch.
To the validity of a will of personal property, it is only necessary that it be made by, or according to the directions of the deceased and be in writing. It is not necessary that it be witnessed, or written, or signed, by the testator; if drawn up according to his directions, and approved by him, it may operate as a valid will. [2 Blackstone Com. 501; 1 Roberts on Wills, 148; Lovelass on Wills, 316, and cases cited.]
The will in this case is written, and was drawn up according to the directions of the testatrix, as is shown by the proof of several witnesses. The disposition which she made of the property, was such as she had repeatedly declared for several years previously, she intended to make, and which she put in execution as soon as she discovered that her recovery was doubtful. On the evening before her death, she told the object of her bounty, that she was about to die, and that she intended to leave him all she had.
On- the succeeding day, when the Doctor by declining to-give her any more medicine, and from the lamentations of her friends, finding out her true situation, she wished the Doctor to do the writing for her, and finding he had left, or was unwilling, directed another person to be sent for. When he came, she declared her intention, and when the will was written, approved it, and no doubt we think can be entertained, that it was a valid testamentary disposition.
If it were necessary to sustain the will, we should be inclined to think, that the proof establishes, that it was executed by her; but whether she made her mark to the paper, or not, it is equally operative, as a testament of personal properly; and it appear that personal properly alone, was intended to bo given. The cases are numerous, where instruction's, or heads for a testament, have been established as a last will, upon proof, that the intention to die testate existed, and the .party had been prevented by accident, or surprised by death, from executing it, in a more formal manner. The .case of Huntington v. Huntington, 2 Phillimore, 213, decided by Sir John Nichols, is a .strong case in point.
*524The testator being taken ill, went to see his solicitor, and dictated to him his will, which the latter wrote down, and read over to him, and which he approved, and directed him to take home and make a fair copy, and bring early the next morning, for him to execute. On the next morning he was suddenly attacked by a fit, and rendered incapable of executing it, and so continued until he died.
This was established as his will, notwithstanding there was then in existence a previously executed written will, attested by three witnesses. The learned judge considered the case as free from all difficulty, or room for doubt. [See also Dickinson v. Dickinson, Ib. 173, and Nichols v. Nichols, Id. 180 ; Cogbill v. Cogbill, 2 H. & M. 467; Walker v. Walker, 1 Merivale, 503.]
In this caso, leaving out of view the execution, or attempt to execute, the instrument, it is certain that the deceased did not intend to die intestate, and that the will was drawn up pursuant to her directions and approved by her; and if by the near approach of death, or by want of physical ability, she was unable to execute it, it is, notwithstanding, valid as a testament.
It is equally as clear from the proof, that she was of disposing mind and memory. One witness speaks of the deceased laboring under a delusion, two clays previous to her death, which was probably owing toan exacerbation of fever; be this as it may, it is evident, from the testimony of all the witnesses, that she was generally sane, and especially on the day of her death. The attending physician, whose testimony is much more to be relied on, than that of the ignorant persons around her, testifies expressly to her mental capacity, although greatly debilitated. The will itself being made in conformity to a fixed determination, eutertained and expressed for years, is the strongest proof of her capacity. Even in the case of confirmed lunacy, a will drawn up by a lunatic, was held of itself, to afford proof of a lucid interval, from the internal evidence afforded by the fitness of its dispositions, and its being made in conformity with an intention expressed, previous to the insanity. [See the case of Cartwright v. Cartwright, 1 Phillimore, 90, and the cases collected by Stock on non compos mentis, 52.]
*525Upon every view which we have been able to take of the case, we think the paper was correctly admitted to probate, as the last will of the deceased, and the judgment of the Court below is therefere affirmed.