
    Wm. McGee and wife vs. Jane McCants.
    There is no preset ibed form of words for a will, 
       ; but if it be the intention of the testator to make a disposition of his estate, to take effect after his death, then it is his will, whatever may be the form. And there are several methods oi'comingat this intention ; (1) where it is so expressed on the face of the writing itself; (2) where the paper is in the form of a deed, letter or memorandum, or in any other form, containing an actual disposition of hi:; estate to take effect after his death, and though not a will in form, is so in its effects and operation ; (3) when the intention is doubtful and cannot be collected from the face of.the paper, but by parol proof.
    A letter containing these words, was hold not to be a will, viz ; “ I am desirous to see you, and would be glad you could come down immediately, as it is my -:oish you should heir every thing I have at my decease ; but I fear unless you come quickly, l will be defrauded out of every thing by a person I once took to ho a friend. I know you can save the property for me, and all I desire in the use of it my Ufé lime, and it is more than probable that will not be long-.” “I would write more fully on the subject, but can explain every circumstance to you better when I see you.” It was proved that the deceased did not suppose it would be his will.
    Evidence that the deceased, on his death bed said “ he gave all his persona! property to his sister Janeand being asked if be wished any of his relations to have any of his property, replied, “no, that it was his sister June’s and site might do as she pleased with it,” was Held not sufficient evidence to establish a nuncupative will.
    Tried before Mr. Justice Johnson, at Sumter, Spring ' Term, 1821.
    S.1MUEL McCANTS, died leaving a personál estate, which, il he died intestate, the parties were jointly entitled to inherit ; but the defendant propounded in the court of ordinary, the following writing in the form of a letter, addressed to herself, as his last will and testament.
    “ Dear Sister, after wishing these few lines may find you well, this will inform you that I have been quite poorly and have been so all this spring, I would have come up to see you instead of writing, but am not able nor have I a horse able to carry me so íar. I am veiy desirous of seeiug you, and would be glad you would come down immediately, as it is my wish you should heir every thing I have at my decease ; but I fear unless you come quickly, I will be defrauded out of every thing, by a person whom I once took to be my friend. I know you can save the property for me, and all I desire, is the. use of it my life time, and its more than probable, that will not be long, I hope you will not fail in coming as soon as possible. Please remember me to Win. McGee, and Jane, and the family', f would write more fully on the subject, but can explain every circumstance to you better when I see you. I remain, dear sister, your affectionate brother.
    SAMUEL McCANTS.”
    
      John Presley, deposed that, he wrote the letter at the request of the deceased, read it to him, and he approved it, and signed it in his presence. That his mind was at that time in a sound state. He had not drank any that day. That the deceased brought his negroes to witnesses’' bouse. That the defendant hired a waggon to move the negroes up to where she resided, and paid for it herself. She also paid the taxes on the property. That the deceased said he wished a maintenance out of the property and no more. That at his death, she (the defendant,) should have the property, and he would make it secure to her in ■any way that she pleased. The deceased, he said, was not present when he wrote the letter, hut approved ol it. On bis cross examination, the witness stated that the deceased did not suppose the letter would he his will, but he appeared only to want a maintenance out of the property and at his death to he his sisters. The receipt for tax'-s, was taken in the name of the deceased. That the deceased, before he sent for the defendant, offered to mortgage one of the negroes to witness for provisions. That when the deceased had the letter wrote, it was not his intention that it should be his will, but it was his wish to make over bis property to his sister as expressed in the letter. The inducement to write the letter, was that one Snotvden, who had a deed of gift of the property and set up a claim to it, talked of going to the Western states and carrying it with him.
    Mr. Nesmith, another witness, deposed that be knew nothing about the writing or sending of the letter, but that he knew the name of the deceased subscribed to the letter, to be his hand writing, and that the letter itself was in the hand writing of the witness Presley. That he understood the deceased was to leave his property to the defendant. Defendant bought provisions for the negroes when they moved up, and sent money by witness to pay the taxes. Witness went a part of the way with the waggon that moved them. There was no particular form in the delivery of the property. He saw the negroes go into the waggon that defendant had hired to move them.
    Mr. Heddkslon. another’witness, also proved the hand writing of the deceased, and of Presley, who wrote thé letter.
    On a former occasion, the defendant had set up and attempted to prove in the court of ordinary, a verbal will made by the d< fendaut, which was rejected by the court; and-the following evidence taken on that occasion, was by tire consent of the 'parties, r eceived in evidence on this trial;
    
      Thomas Pringle, sworn, and deposetb, that Samuel Me-C’aKiiVsaid he gave ali his person./! pioperty to his sister Jane. He (the defendant,) ashi d the said Samuel Mc-Cadls, if he wished any of his property left to any of his relations ; he said no, ail was his sister 'fane's, and she might do as she pleased with it: that it was done on the fcighth of August, and he died fourteen or fifteen days after. It was done in the house he resided in, and that he bad resided in that house ever since last March, and dons on his death bt d in his last sickness ; that he committed the same to writing on tire 24th day of August, the day-after he died. That when he was sent for, it was with an idea or under the impression that it was by the request of the testator, and the boy said so, as well as he recollects. He (the deponent,) thought, he would die at that time. On cross examination, lie said that the testator did not callón, him particularly to bear witness. When he went in, he sat in a chair by his bed side, and asked him if he wished to dispose of his property. He said yes, (and related as above,) that at the time he was of sound and disposing mind, as he usually had been, he was very low at the time, and that if ever he was able to make a will, he was at that time.
    
      J. A. Spears, sworn and deposetb, that Samuel Me Cants said that he gave his personal property to his sister Jane; he was asked by Mr. Pringle, if he wished any of his relations to have any of his property, he said no, that it was bis sister Jane's, and she might do as she pleased with it. When he was sent for, the hoy Daniel, told hirp that Mr. Samuel Me Cauls sent for him to ,go there ; that it was on the eighth of August, and that he died about fifteen days •liter; that himself and the'other two witnesses committed it to writing on the Monday after his death, and he died on Sunday morning. He, (the defendant,) spoke to Mr. McCants, in a friendly way when he went into the house j that it was done on his death bed, in the house where he, (the testator,) resided; he heard Mr. Pringle ask the testator if he wished to dispose of his property. He said yes. On cross examination he said the fellow or hoy did not tell him that it was to witness his will, nor neither did he tell Mr. McCants, that he had come, nor Mr. McCants, did not tell him, to bear witness ; that he could speak very well.
    “ j. Mor decaí, sworn and deposeth, that he was there when Mr. Pringle asked Mr. McCants, if he wished to dispose of his property. He said yes ; he wished his sister 'Jane to have it all. Mr. Pringle asked him the other question stated above, and he said no, it was all hers. He did not know the exact daté ; but that he died about the twenty-first; that it was on his death bed in the house where he resided ; that himself and the other witnesses committed it to writing on the twenty-fourth of August ; that he appeared to be as rational as he had ever seen him. On cross examination, he said he went to Mr. McCants house ; negro Daniel came for him ; he cannot say that the testator sent for him ; that the testator said nothing until he was asked ; he had no idea why he was sent for, until he Came there; the negro said his mistress sent for him 5 he thought the testator was a man of weak mind, but was as rational as ever he was.”
    On this evidence, the ordinary pronounced in favour of the writing as testamentary, and approved of it as such.
    From this decision, an appeal was brought up to the circuit court, when an. issue was made up to try the question devisobit vel non ; on which issue, the jury under the direction of the court, found that the said writing was not testamentary; and the defendant now moved for a new trial.
    
      
      
         Vide ante, White vs. Helmes, 438.
    
   Mr. Justice Johnson

delivered the opinion of the court.

There is no prescribed form for a will, but like every thing else, it possesses some ingredients which its peculiar character renders indispensable. It is, says Bacon, “ a just and complete declaration of a mans mind, or last will of what he would have done with his estate after his death ; or according to some, a will is a declaration of the mind either by word or writing, in disposing of an estate, and to take effect after the death of the testator. ■ (7 Bacon. Tit. Wills & Test. 299. A.) And the true question in every case, is, what was the mind or intention of the testator, and how did he intend that the paper should operate ? If as a disposition of his estate, to take effect after his death, then it is his will, whatever may be the form. There are several methods by which we come at this intention.

1st. When it is so expressed on the face of the writing itself.

2nd. When the paper is in the form of a deed, letter or memorandum or in any other form, containing an actual disposition of his estate, to take effect after the death of the testator; and though not a will in form, is so in its effects and operation, (4 Vesey 565. Millege vs. Lamar. 4 Equity Rep. 617.)

3rd. Where the intention is doubtful and cannot be collected from the face of the paper, but by parol proof. (2 Vesey 441. Phillemore 32, 345.)

It is not pretended that this case falls within the operation of either of the two first rules. It does not profess to lie a will, nor does'it contain any actual disposition of the estate of the' deceased, and it is only necessary further to consider whether the parol evidence sufficiently proves his intention that it should operate as a will. , -

It will be recollected that the letter was not written by the deceased himself, and that the object was to prevail on the defendant to take possession of the property to prevent Snowden from carrying it away; and as an inducement to her to engage in it, he declares that it is his wish that sbe should heir his property at his death. I attach no importance to the word wish, nor to the incongruity of the word heir ; as they were terms selected by the writer^ obviously without regard to propriety* to express what he supposed to be the intention of the testator, and which the witness said, neither the testator nor himself had any idea was to operate as a will.

He Saussurc, for the motion.

Miller, contra.

The evidence collected on the attempt to establish a verbal will, and read on this occasion by cónsent, is, I think, equally unsatisfactory. 1'hey prove, it is true, the repeated declarations of the deceased, that it was his intention to leave his property to the defendant; but they prove no actual disposition in a manner that .could operate as a will; nor is there the most distant allusion to this paper in any subsequent declaration, which fell from him ; and it is already shown, that there must be an act of disposition j and I trust I shall not be called on, to prove that the intention to do the act, is the act itself.

The motion is discharged.

Justices Colcock, Nott, Richardson and Huger, -concurred.

Mr. Justice Gantt dissented.  