
    Henry W. Anderson et al. vs. John C. Pryor, Judge of Probate of De Soto county.
    It is competent for a volunteer in the army of the United States, in Mexico, who is a citizen of this state, to make his last will and testament while abroad in Mexico.
    And a letter, written by such volunteer, from Mexico, throughout in his own handwriting, in which he expresses his desire and intention, in case of his death, that his property should go to his niece, will be properly admitted to probate off his death, as his last will.
    While a letter from the same person, in which he expresses his-willingness to aid his brother, who was in difficulties, with all his property, was not testamentary, and therefore not entitled to probate.
    In error from the probate court of De Soto county; Hon. John C. Pryor, judge.
    Charles Yarborough, in August, 1837, applied for the probate of the alleged will of Garland Anderson.
    W. W. Cockrun testified that the deceased, when he left home for Mexico, as a volunteer in the first Mississippi regiment, in the summer of 1846, was of age, and left with the witness two slaves, and told him if he never returned he wanted him to see that his niece, Martha Yarborough, obtained his property. After his departure the witness obtained a letter from him, dated June 21, 1846, in which he says: “If I never come back ma promised my property should go to Martha Yar-borough.” In another letter, dated July 19, 1846, he says: “I wish you [to] inform Yarborough what I told you concerning my property; ma promised me it should go as I wished it, to my niece Martha.” The witness produced the letters, from which these are extracts; and also a letter to Martha Yar-borough, from the deceased, dated October 27, 1846, in which he says: “Your grandma promised me to let you take Jake and Nan, if I should not get back.” These letters were all in the deceased’s handwriting, including the signature.
    
      W. B. Spinks proved also the handwriting of the letters; and that he was a messmate in the army with the deceased, and had been told by him, if he did not return home he wanted his niece, Mart-ha Yarborough, to have his property, and wanted witness to write his will for him in her behalf, but he never found it convenient to do so.
    S. M. Allen, besides proving the handwriting, testified that the deceased was a member of the same company in the first Mississippi regiment with himself; that on the22d of February, 1847, in Mexico, the deceased came into his tent, and asked witness to take a walk; after walking some distance the deceased said, on to-morrow we should go into battle, and in the event he should fall he wished witness to bear home to his friends some relics, which he named. Witness asked him what disposition he had made of his property, to which he replied that he had given it to his niece, Martha Yarborough, which was known to his friends from his letters, and that he felt satisfied his wishes would be carried out. That a battle was fought the next day (February 23d) between the American and Mexican forces, at Buena Vista, in which Garland Anderson was killed. The deceased was mustered into service of the United States on the 15th of June, 1846, and continued in actual service until his death.
    On this proof the judge of probate admitted the extracts of the letters, as quoted above, to probate, as the last will and testament of Garland Anderson; and granted letters of administion, c. t. a. to W. W. Cockrun.
    In opposition to this grant of letters and probate, Henry W. Anderson, a brother of the deceased, for himself and the other brothers and sisters, and their descendants, appeared and read a letter to himself, from the deceased, dated at Monterey, September 29, 1846, in which he says: “ Tell John not to be uneasy ; every cent I have in the world is at his disposal. I tried to get a discharge, so that I could come and be with him at his trial, but did not succeed.” The person referred to as “John” in this letter, was also a brother of deceased, who was in a lawsuit and difficulty, from having shot a negro, for which he had been tried and acquitted; and had been sued also in a civil suit, for his value.
    Mrs. Nancy Anderson, the mother of the deceased, proved that shortly before her son’s death he had written to her that if his brother John was still in his difficulties all his property was at his disposal. And in another letter, written early in January, 1847, he said, “ never mind Martha; I will come after a, while.”
    This was all the proof; the parties contesting the probate appealed.
    
      D. C. Glenn, for appellant.
    1. The will, in view of the conflict of testimony, should not have been probated; at one time the deceased undoubtedly intended his property for his niece; but at a later period the difficulties of his brother seemed to have changed that intention.
    2. The will sought to be probated was not a valid will; the deceased had no lawful authority so to dispose of his property, It is no nuncupative will. How. & Hutch, ch. 36, § 6. It is a soldier’s will, and is to be sustained under the act of March, 1833, which provides that a soldier may dispose of his chattels as he might heretofore have done. Ib. ch. 36, § 9. This was taken from the law of 1821, Rev. Code, p. 27, § 21; that, from the territorial act of March 12, 1803, revised February 10, 1806; Toul-man’s Dig. 275; Turner’s Dig. 433, $ 4. These give the power in the same words; the question is, how might he theretofore have done sol By act of Congress, sec. 3, 1798, and of May 10, 1803, sec. 1, the ordinance of 1787 was extended over this country. In that ordinance there is found no authority for a will like this. In the statutes of Georgia, is a provision like the one in ours; so in England, in the statute of 29 Charles II. the •same language is used; but it is unexplained; no reported case touches it; it is not of common law origin, as the feudal system did not favor testaments. It is of civil law origin, interpolated by the ecclesiastics into the law of England ; and the law of Justinian must indicate the mode in which the soldier’s will is to be made. In Coop. Jus. lib. 2, § 16, p. 118 and notes, the law will be found; the soldier may only convey his military or quasi military property, but in no case his peculium adventitium, or peculium profeclitium ; his pay, his baggage, his haversack, and his canteen, are all he may dispose of. This is the civil law, the law of England, and the law of this state, on the subject.
    
      McNutt and Paxton, on same side.
    
      M. C. Watson, for appellee.
    1. The statute of wills is not applicable to the will of a soldier in actual military service. See How. & Hutch, p. 387, sec. 9.
    2. But this will is good, even under the statute. The letters which make the disposition of the property of decedent, are, throughout, in his handwriting. How. & Hutch. 385-6, § 2; Law and Practice of Probate Courts, by Chilton, pp. 467, §§ 9 and 10, and references; 6 Gill & John. Rep. 25, 27; 4 N. H. Rep. 434; 6 Humph. 452, and the references to Williams on Executors, there made.
   Mr. Justice Thachek,

delivered the opinion of the court.

Garland Anderson, a volunteer from this state, in the service of the United States, was killed in the battle of the 23d day of February, 1847, at Buena Yista, Mexico. Previously to his death, three letters were received from him, written altogether by himself, in which he expressed a desire and intention that in the event of his death, his property, which consisted of slaves, should go to his niece, Martha Yarborough. These letters were presented for probate, as the last will of deceased. The application rvas opposed by his brothers and sisters. They exhibited letters, also, from the said Garland Anderson, in which he expressed his willingness to aid his brother, who was in difficulties, with all his property. The probate court received and admitted to probate, the said first-mentioned letters, as the last will and testament of the said Garland Anderson.

It was competent for the testator to make a will while abroad in Mexico, and the will was sufficient and legal under the statute. H. & H. 325, § 2; Boyd et al. v. Boyd, 6 Gill & John. 25.

The first-mentioned letters were clearly testamentary. They show the intention to make a bequest, and are valid as such. Hunt v. Hunt, 4 N. H. 434. Such was not the intention expressed in the other letters. They exhibit merely a promise to aid his brother, if in his power.

Decree affirmed.  