delivered the opinion of the This ⅛ ít SUit for the partition Of the Court* *144estate of the late J. Hamilton, instituted by . his widow against his heirs.
may ask of the testator m what manner he wishes to dispose ot his soncd ePsut»s are made with refere:,co to the inventory mentapP a lue of the hire of slaves lent to him by his Sl^him entó of one sent to attend the child as a do-mestie.W. S. Hamilton, a son by a first marriage, complains of the admission of the will to regjsiry alleging the unsoundness of ihe testator’s mind, ana oecause it was not made • i i i m the manner required by law.
yye not think the judge of probates erred j n 1 overruling both these objections.
It is true, the testator had, for several years, suffered from the consequences of an applo-11 attac^’ which terminated in palsy. Yet testimony shews that his mental facul” _ pes were not so affected as to disable him from making a will. The aprincipal part from which the opposite conclusion could be rationally . drawn, is, his running to persons near him for information of the name of some of his children, and his apologizing for this circumstance, by saying they had such long names that by The record shews he had six children, all of whom, but one, bad more than two names, and one of them, five, being called John Walsh Andrew Jackson Hamilton. going over them he had got confused,
On the second ground, it is urged that every word in a will must be dictated by the testator *145and his very expressions taken down. It is next shewn that the amanuensis employed to write the will has deposed that the clause dec-Iaratory of the testator’s sanity was not decía-ted by him, and that with regard to another part of the will, to the question whether he had taken down the very words of the testator, the amanuensis answered, that the testator did not speak word by word what is written, but being asked what disposition he meant to make of his property, answered, in substance, in the manner that is written.
We consider the clause declaratory of the testator’s sanity, as a mere formula, like the vords “In the name of God, Amen,” not essential to the will—mere words of form with which notaries are in the habit of prefacing the declaration of the testator’s intentions.
We are referred to 5 Toulliea, 350, where jt is said, that to dictate, is to pronounce, word by word, what is designed to be written by another. Hence he concludes that a will cannot be made by signs or interrogations.
This able writer does not say what, or whether any variance is fatal. On the contrary, from the examples he puts, we understand that the meaning he intends to convey is,thattheteig* *146tator must express his intention orally, not by signs, but by words; and that these words are uttered spontaneously, and not upon sugges-x u 1 ^ lion. Had the proposition he meant to illustrate been that contended for by the defendant, this able writer would not have referred to so remotean example.
We know that there have been decisions in some courts of France, requiring the utmost precision in the amanuensis; but we are unable to adopt this doctrine in its utmost extent* It is desirable to have, as much as possible, every word taken down from the testator’s mouth; but we cannot adopt the unqualified proposition, that the slightest variation is fatal, as, for example, the substitution of the pronoun which, instead of that. This would destroy almost every will.
The interrogations, which Toullier means to exclude, are the direct or indirect ones, relating to any particular article of property, or any particular person, as the object of the testator’s benevolence: not the interrogatories— What are your intentions? How do you wish to dispose of your property? which arc only notices of the notary or amanuensis being ready to write, and waiting only for the directions of the testator.
*147The court of probates refused to allow the 1 plaintiff any thing on account of certain -, •, „ . , deeds oí trust, marriage settlement, or mortgages executed in North Carolina. She is not an appellant, and her counsel in this court has not prayed for the revision of the judgment in this regard.
The defendant, W. S. Hamilton, claims from the estate certain sums of money alleged to have been received by the deceased, as his guardian. On this part of the case, we think justice demands that it be remanded for further examination, and that this defendant be allowed to procure and introduce further proof; that on record, establishing the guardianship, and rendering it more than probable, that money was, or might have been, received by the deceased in his capacity of guardian; and it would be impossible for us to act on this part of the case, without running the risk of do ing material injustice.
His claim to be considered as a joint por-chaser with his father, of the Hart’s estate, we think was properly disallowed; the record establishing that arrangements were made between them, totally inconsistent with a joint ownership.
*148With equal correctness was the clause for reimbursement of money disbursed on improvements on the part of the estate purchased by this defendant disallowed.
Sales of the estates of deceased persons are made with reference to the inventory and ap-praisement that necessarily precede them. In the present case, the improvements, not having been made by the testator, were considered justly as no part of the estate, and not considered at all in the appraisement. All the immoveable property was purchased by some of the parties to the present suit, who being so to the inventory and appraisement, must be presumed to have acted with full knowledge, and in accordance thereto, and there was no need as to them, of a declaration of the sale of the land being made without reference to the improvements.
This defendant, who was before the sale a creditor, for these improvements, became, by his purchase, the debtor of them, and his demand was thus extinguished by confusion.
We think this defendant is bound to collate the value of the labor of the six or seven slaves which were sent to him by the deceased for the purpose of enabling him, by the use of them, *149and other resources, of raising a sura of money, to be employed in the purchase of slaves for his own use. Had the testator given the ° negroes, or money to purchase them, what was then given would be a proper object of collation.
The case is different with regard to the slave Bristol, who was sent to wait upon the defendant. The bailment was a precarious one; and the comfort the defendant derived from the attendance of this slave on him, is not a proper object of collation. His co-heirs, who remained in the paternal mansion, deriving, likely, an equal advantage from the service of the servants kept there for the comfort of the family.
There is no evidence to support a charge against this defendant for the value of the slaves who ranaway from North Carolina, We think he is chargeable for the fair value of the use, or a rent for the part of the premises he occupied.
It is therefore ordered, adjudged and decreed, that so much of the decree as charges the defendant, W. J. Hamilton, with the hire of the negro Bristol, and the price of negroes Jim and Chloe, be annulled, avoided and reversed; and the claim of the widow and other *150^e*rs against him, be disallowed and rejected; that the case be remanded to the court of probates, with directions to allow a sufficient time to the defendant to introduce proof of his claim against the estate for the balance due by the deceased, as his guardian, and likewise, to receive proof of the alleged surrender of the particular estate on which the estate in remainder of the mother of the defendant depended? in order to ascertain the claim of the deceased to the profit of the estate as a tenant by the courtesy; and in the examination of the evidence to be so produced, to settle the balance, if any, due by the deceased, as guardian to the defendant, and his claim for the rents of the house in New-York; and after this, to proceed to the final partition of the estate, in the manner as it was done before, modified by the re suit of the settlement of the guardian’s estate, and the settlement of the claim for the rents of the aforesaid house, and the opinion of the court in the present decree, the costs to await the final judgment.
Watts and Lobddl for the plaintiff, Smith for the defendants.