
    
      Executor of Henry v. Ballard and Slade.
    
    The jury find that Perry Fulsher, seised of the premises in fee, on the 2d of April 1796, executed the instrument of writing (a copy of which is annexed to this case); that at the time the said instrument was about to be written, the said Fulsher asked, whether it was better to make a will or deed ? and upon being told ‘ a deed,’ directed the paper referred to, to be written, and accordingly executed the same. The jury further find, that Reading Squires paid no consideration to Fulsher, nor was he related to him by blood, otherwise than being the illegitimate son of Fulsher’s wife; that Squires conveyed the lands mentioned in the said paper writing referred to, to the plaintiff, and that defendants entered upon the plaintiff’s possession; and if the law from these facts be for the plaintiff, they find for him and assess his damages to six pence; if otherwise, for the defendant.
    In the progress of this cause, it was first objected to the admissibility of the probate of the paper referred to, as a will, upon the ground that the certificate did not state that 
      it was proven to have been attested by two witnesses in presence of testator. The evidence was received without prejudice to the exception. The defendant then offered the two living subscribing witnesses to prove the circumstances which attended the execution of the paper writing, as are found in the special verdict of the jury. This evidence was objected to, but admitted without prejudice to the plaintiff. The other witness who proved it as a will was dead. The special verdict, together with the several exceptions to the evidence, are transmitted to the Supreme Court for their determination. The paper writing referred to, together with the certificate of probate, is also made part of the case.
    North-Carolina, Beaufort County.
    Know ye all men by these presents to whom it shall come greeting, I, the said Peregrine Fulsher of the said county and province aforesaid, being weak in body and health, do ordain this to be my last deed of gift. In the first place, I want all my just debts to be paid, and funeral charges, and to be buried in a Christian-like manner. In the first place, I give to my son-in-law, Reading Squires, 350 acres of land, to him and his lawful begotten heirs of his body, after the decease of me and my wife Tamar Fulsher. In the next place, I do give to my son-in-law, Reading Squires, all the property I own and shall own during my natural life, clear of all wills, legacies, or any thing that shall come against the said Peregrine Fulsher’s estate, or any incumbrances whatsoever.
    Given under my hand and seal, this 2d day of April, in the year of our Lord 1796.
    
    his
    PEREGRINE X FULSHER, (L. s.)
    Test of us, mark.
    his
    
      William X Riggs
    mark.
    her
    
      Susannah X Riggs
    mark.
    
      Samuel Harrison.
    
    
      State of North-Carolina, Craven County.
    
      Court of Pleas and Quarter Sessions, September Term, A. D. 1811.
    The last will and testament of Peregrine Fulsher was produced, and the execution thereof by the testator was proved in open court, and in due form of law, by the oath of Samuel Harrison, one of the subscribing witnesses thereto, who swore that he saw the said Peregrine, sign and seal, and heard the said testator declare said instrument to be and contain his true and only last will and testament; and the said Samuel Harrison further swore, that at the time thereof the said testator was of a sound and disposing mind and memory. Whereupon, ordered, that said will be recorded.
    Badger, for the defendant,
    argued that the paper writing exhibited could only operate as a deed, which was the instrument intended to be made.—Pow. on Dev. 13. Cruise Devise c. 5, § 26. 2dly, That if it operated as a will, the certificate of probate was not admissible evidence, because it does not state that it was signed by two witnesses in the testator’s presence.—Acts 1734, c. 22, § 11.
    It is not sufficient that the certificate states that the will was found in due form of law; for that is to be judged of by the Court when a title is set up under it. A probate being ex parte is not conclusive.—4 Johns. 162.
    Gaston, for the plaintiff,
    cited the act of 1784, ses. 2, c. 10, § 6, which makes the probates sufficient testimony for the devise of real estates.
   Per Curiam.

It is not necessary to decide in this case upon the nature and effect of a probate when offered in evidence, because the Judge who tried the cause informs us that in point of fact the witnesses introduced by the defendant did prove the execution of the will in the manner required by law; and in this respect we consider the statement as amended by the Judge. On the other question, we are of opinion that this instrument of writing was made with a view to the disposition of the estate after the death of Fulsher, and although it is called a deed in the body of it, and the testator was advised to make a deed, yet the whole structure and operation of it shows it to be a testamentary paper.

Judgment for the plaintiff.  