
    James H. White vs. Jonathan Helmes.
    A free neg-ro is an incompetent witness in any case where the rights of white persons are1 concerned.
    R is not necessary to a will of personal property that it should have two witnesses ; nor any, indeed, so the hand wirting. of the testator can be proved, (a.)
    St is not necessary to constitute a paper a will, that the animo lestandi should appear on the face of the paper.
    Will. Caveat.
    
    Jl HE testimony in the case was as follows :
    
      Henry Verner was first sworn, and on being questioned ns to his knowledge of the instrument offered for probate, deposed as follows: That Daniel Leger twice sent for him on the morning of the third of April by two servants; that he hastened to the residence of the deceased, and found him very sick; that after the usual salutations, Leger requested him to draw some writings for him; that be-iievmg Leger wanted his will written, he observed that he did not know the form of one, but that he would write down what he (Leger) wanted written ; that he then wrote the following lines, word for word as directed by •said Leger:
    “ I give to Jonathan. Helmes all my lands' and negroes, tools, house/told furniture, hogs and rice and bacon ; to James White, I give all my cattle.”
    April ,3, 1820. Daniel Leger.
    
    líe then read the instrument to Leger ; Leger then too?; it, and being raised up in his bed, signed it. He said that himself and Leger were not intimate, and seldom saw each other more than twice or thrice a year. He resided about a mile from Leger, and knew him well by sight. He believed him to be of sound and disposing mind, memory and understanding at the time he signed the instrument. When he asked Leger why he did not give his property to his relations, he replied, “ that he had not been well treated by them; that Mr. Helmes was a good man, arid that he wished him to have his property.” Verner was again questioned as to the sanity of the testator, and replied, that he believed Leger to be as rational as himself at the time he signed the instrument; and during his conversation on the subject of the disposition of his property, that as often as twice he heard Leger say White should not have his property. On cross-examination, Verner said, Leger never told him he had sent for him ; that there were none but negroes at LegeVs when he arrived at his house ; that he dated the instrument when he went home, the same day it was written ; that the h and d interlined were made at the same timé, as a correction of the spelling. He staid with Leger one hour, and that the only conversation had with him during that hour, was that already stated ; that he believed him to be in his right mind from the reasons already stated and none others; that from themanner in which Leger spoke and his looks, he did not believe he would die; that he sat in his bed and took s drink of water just before he left him, but thát he drank it ■ With pain, Mr. White said he was no relation, and deceased had other relations besides White's children. It was three or four months previous to the death of Leger, when he said, 4‘ White should not have any' of his property.” This wit* ness further said, that after Leger had signed the paper, he returned it to him ; that while he was dozing in sleep, he heard him say “ where are my negroes, they are all scatteredthat during his stay with Leger, his pulse was irregular and his hands cold ; that there were but two ne-groes with Leger, and that two of those were sent as messengers ; that though Leger said, when dozing, “ where are my negroes, they are all scattered,” he believed him, on being awaked, tobe as rational as he ever had been.
    Dr. John Wragg was nest sworn for the plaintiff, and deposed, “that he was at Leger's on the 2nd of April, at 12 o’clock; that his disease was epidemic ; that his lungs Wereso much effused as to render respiration very difficult. He remained with him half an hour or more, and had no doubt his disease would terminate fatally. Both Leger and White were anxious he should return the next day. He told them he would do so; but that it was more to gratify his patient and friend, than from any hope of his being able to relieve him. It was raining, and Leger situated between two doors, his hands as cold as though he had an ague, and servants fanning him occasionally to erfable him to breath. -He saw no evidence of delirium,, his Stay being only half an hour; but that he believed him to be too near the article of death, to make a legal will; and that from a consideration that Leger would die, he did not visit him on the 3rd. until he had visited other patients on Pee Dee. On his arrival, he found Leger a corpse.
    
      fames Britt, against the caveat, said he was well acquainted with Daniel Leger ; that about a month previous to his death, he heard him say he would leave his property to fonalhan Efelmes. That Leger and Helmes were very intimate, and frequently visited each other.
    
      , Charles Hopkins said, that ¡n a conversation with .Leger at his house in the last winter, oh the subject of the disposition of his property, Leger said he would give his property to a person little expected, and that he would not give it to James White, by whom he said he had been ill treated. On cross-examination, he said Leger was a tram apt to change his mind. He never said he would give his property to Helmes, nor did he say he would give it to James White's children.
    
      Christopher Watts said that in June, 1819, Leger said to hint, that neither James White nor any of his, should ever have any of his property. In January last, he repeated the same words. Leger frequently spoke of Helmes as a friend.
    
      Thomas Britt said, that Leger, about two months previous to his death, told him he would leave his property to Jonathan Helmes. ,
    
      Thomas Blunt said, that Leger and Helmes were intimate- and frequently in company with each other.
    
      ■> Francis Heartly said, that he had seen Leger write, and that his name on the instrument now offered for probate was his own proper signature ; that sometimes he spoke well of White and at other times very differently; that he spoke well of White shortly after his first marriage, but that latterly when .conversing about White, he invariably gave him a bad character. Leger and White were remarkably intimate and friendly.
    
      Amos Heartly said,'that about two years since, Leger told him, he did not wish James White to have any of his property; that he would sooner give it to a stranger than to James White. On cross-examination, Heartly said, Leger was apt to change his mind.
    - Moses Bourne said, that early in March last, he was at -Leger's house, and that at dinner, after some conversation relative to Mr. White, Leger said, White should not have any of his property or any thing to do with it.
    
      Burrell Bird, against the will, said, that he was at Dan-r*l Leger's house on the 2nd of April, between the hours of 11 and 12 o’clock, and that he remained till 1 or 2 o’clock; that Leger appeared to be in great pain and agony; that Dr. Wragg arrived during his stay with Leger. He believed Leger to be in too much pain to make a will; that from the misery and restlessness in which he was, he did not believe him to be in his right mind ; that when Mr. Palmer asked him, if he had disposed of his property, he replied, “no!” and muttered some other words in atone of voice too indistinct to be understood.
    
      Ccley Kales said, that in the fall of 1819, after the death of Mrs. White (the first wife of While,) she heard Leger say, that if he died before he married, White's children should have his property.
    The counsel for White here brought forward a free negro to give testimony, to whom the court objected, on the ground that such testimony would be without precedent and against the policy of the state.
    
      James White was then sworn, and said, that on the evening of the second of April, he left Leger and visited him again in the morning of the following day about 10 o’clock, at which time Mr. Vernier was with him; that a short time after his arrival, Mr. Verner left the house, and that Leger appeared to be out of his senses at intervals on the night of the 2nd of April. On the morning of the 3rd, he found him much worse, and that Leger asked him to feel his pulse and say, if he was not much better ; that he told him he was, but at the same time thought differently. Leger said to him, he knew he should die, and requested him to have his body decently interred ; that from the incoherent expressions of Leger on the third, (after the will was drawn) he was certain Leger was not in his right mind. He was speaking of fishing and hunting, &c. White was the father of the next of kin to the deceased.
    This was an appeal from the ordinary of Georgetown district.
    In addition to the testimony offered before him, Sarah Pauls was sworn, who stated, that she knew the deceased, and heard him say, when he died,- he meant to leave his property to his sister’s children. She heard him say so only once, and could not tell when or where. She had forgotten that. She took no account of it. On her cross-* examination, she stated she believed'it was just before his sisters death.
    The appellants then introduced a negro woman, Eliza Salines, admitted to have been born and bred free. She was rejected, as incompetent.
    The case then went to the jury, and it was contended on the part of the appellant,
    1st. That the deceased was not of sound and disposing mind.
    2nd. That two witnesses were necessary to prove the will.-
    The jury found the paper to be the last will and testa* mept of Daniel Leger.
    
    A motion was now made for a new trial on the grounds;
    1st. That competent and material testimony on the part of the appellant was rejected byr the court.
    2nd. That the presiding judge misdirected- the jury-in a matter exclusively* for their investigation, in charging that, “ no evidence had been given to show that the deceased had been out of his senses at any moment before the will was made,” whereas the evidence of I)r. Wragg, of Burrell Bird and of James White, was conclusive ÍQ this effect.
    3rd.' That his honour also misled the jury in stating that two witnesses are not necessary in proving testaments in cases of contest, provided they are signed by the deceased ; and
    \ 4thly, (A ground not taken below,) ' That the paper offered, to be proved as a testament was not a testament, and parol evidence was inadmissable to prove it.
   Mr..Justice Coleock

delivered the opinion of the court.

On the first ground, the court are unanimously of opinion, that the witness was properly rejected. There is no instance in which a negro has been permitted to give evi-tiene*;, except in cases of absolute and indispensable necea-• sitv. nor indeed has this court ever recognised the propriety of admitting them in an}' case v/here the rights of white persons were '"oncerned. When we consider the degraded state in width they are placed by the laws of the state, and the Ignorance in which most of them are reared, it would be unreasonable as well as impolitic to lay it down ás a general rule that they were competent witnesses.

On the second ground, the jury were instructed, that il: was .heir province to decide, whether the testator was of sound mind. 1 stated to them that the rules of law were, first, that soundness being the natural state of the human mind, insanity was not to be presumed, but that if proved to have existed before the making of a will, it was incumbent on those who wished to support the will to prove that it was made in a lucid interval. I may have said (for such was then and still is my opinion) that there was not sufficient evidence to induce them to believe that the deceased was not of sound mind at any time before his death ; and the (act is not correct, that Dr. Wragg gave it as his opinion that he was insane ; for he expressly says, “ he saw no evidence of delirium, but believes him to he too near the article of death to make a legal will.” In his legal opinion he was incorrect; but as to the • soundness of intellect, his opinion is entitled to great weight, and added to that of Verner, I think, is conclusive on the subject of his sanity. What is the evidence of Bird ? He did not believe him to be in his right mind. Why ? First, from his misery and restlessness ; and because when Palmer asked him, if he had disposed of his property, he replied “ no and muttered some other words in a tone of voice toó indistinct to be understood. No rule is better established than that the opinion of a witness is not evidence unless he assigns satisfactory reasons for the opinion ; unless he be a man of science and his evidence is on a scientific subject, in which he is versed. Now what are Bird's reasons ? The first is, because he was in misery and restless. This surely is not a satisfactory reason; for many a pian suffers ..greatly and yet preserves the full exercise of his mind. What is the' second reason? Because he said “no,” when asked if he had disposed of his property. Now it is to be recollected that this was on the 2nd of April, the day before he made his will. He had not then disposed of it. This answer was both rational and true ; and yet furnished a ground of belief that the deceased was. insane ? His last reason is little better: Because he muttered some words in a tone of voice too indistinct to be understood. ■ This may have proceeded from an unwillingness to speak, or a feeble state; both of which may have existed without insanity. His testimony then, does not prove the insanity of the deceased. White says, the deceased appeared to be out of his senses, but does not state any facts by which a jury could be induced to rely on the evidence.

On the third ground, the charge to the jury was correct. They were instructed that it was not necessary that two witnesses should attest the signature of the testator, or even be present at the execution of a will which was signed by the testator ; but that if they believed Verner and Jlearlly, the one of whom drew the will and saw it executed, and the other proved the hand writing of the testator, and the witnesses who swore to his declared intention' to leave his property to Iielmes that the law was satisfied. In Roberts on Wills, 194, speaking of the civil law rule which requires two witnesses, he says, and such witnesses must he able at least to depose that the testator declared the writing produced to be his last will and testament; unless where the will or codicil was written by the testator himself, in which case the validity thereof may be established upon proof of the hand writing only, but it ought to be the evidence of such as have seen him write. Swinburne, (1 vol. p. 11,) says, “ so that with us it is sufficient to the effect of executing the testament, that the will and mind of the testator do appear,” And in a note on tins, a will written in the testators hand, having neither name nor seal to it, nor witnesses present at the publication, is good, provided sufficient proof can be had of the hand writing, and though written in another man’s hand and never signed by the testator, yet if proved to be according to- his intentions and approved by him, has been held a good testament of personal estate. He refers to Comyn 452. Bracton 61. Fleta 125. Glanville, lib. 7, chap. 6,. And in 2 Swinburne, 639, concerning the last question., whether it be necessarry that there be witnesses of a written will, this is the answer : That if it be certain and un* doubted that the testament is written or subscribed with the testator’s own hand, in this case, the testimony of witnesses is not necessary ; and in a note on this he refers to Godolph, Gilbert Rep. Eq. 260, that even if not signed, it may be good.

On the fourth ground, it is clear, that the law requires no particular or set form of words to constitute a will. (Ante 409.) “ A testament, says Swinburne, is a just sentence of our will touching that we would have done after our death.” But it was contended that it must appear on the face of .the paper to have been intended to be a will; and that no parol proof could be produced to show the intention of the testator. Now it often occurs that a paper which on its face does not purport to be a will, is from circumstances considered as one ; and no circumstance can be more conclusive than its being made on a death bed. Swinburne (1 vol. 18,) in speaking of the animus testandiy “ which mind and purpose must be proved. by circumstances, (for words alone are not sufficient,) as that he set himself seriously to making his will, being then perhaps very sick or requiring others present to bear witness,” &c. &c. (Touchstone 404.) It is the mind and not the words which doth give life to the testament. But where these circumstances are wanting and the paper does not purport to be a will, it will be so construed if it cannot be supported as any other disposition of property; ut res magis valeat quamper eat.

In the case of Thorold and Thorold, Sir John Nichol says, (in deciding whether the instrument can be considered as testamentary,) the court always looks to the substance and not to the form, to the intention of the writer and not to the denomination he affixed to it,- and this ‘was called by the writer a deed of gift. So in the case of Corp and Corp, and a number of other cases cited in the argument of that case ; (also, 1 Swinburne, p, 74.)

Now here is no consideration expressed, no delivery made. These are essential to constitute a deed. This then is. not a deed. It may have been destroyed by the deceased had he lived ; it therefore partook ol the quality of a will in this. If then it had been found among the deceased’s’ papers, there is enough on the face of it to have induced,a court to support it as a will. But with the abundant proof, both as to the animo testandi and the execution of the paper, there can be no doubt on the case.

The motion is dismissed.

J ustices Nott, Huger and Richardson, concurred.  