
    *James Lyles, et al., v. Susanna Lyles, et al.
    No particular form is required for a will; whether a paper is to he considered as a will or not depends upon the intention of the maker, which is to appear either from the paper itself, or from extrinsic testimony.
    It is not indispensable that a testator should originally have executed a paper, as and for a will, provided he afterwards adopts it as such.
    Where it is not evident from the intrinsic appearance of an instrument that it is a will, and it is admitted that the maker did not originally execute it as his will, and but little evidence that he afterwards changed his mind, and the jury have decided that it was not his will, the Court will not grant a new trial.
    This was an appeal from the Ordinary to the Court of Common Pleas. Tried before Mr. Justice Richardson, at Fairfield, Spring Term, 1820.
    The Ordinary refused to admit to probate the paper proposed, as the last will and testament of Arromanus Lyles, deceased, upon the ground, that as it purported to be a deed, it ought to have had all the forms of a perfect deed, or it could not operate as a will.
    The paper was in the following words :
    “ State of South Carolina:
    
    
      “ Whereas, I, Arromanus Lyles, senior, of Fairfield District, and State aforesaid, do intend to intermarry with Susanna Fennel or Kennerly, of Lexington District, and State aforesaid, having a desire that my children, by a former marriage, should, after my decease, inherit my whole estate, both real and personal, clear of any incumbrance by my intended marriage with the above named Susanna Fennel or Kennerly, I hereby, barring her, the said Susanna, of any claim to any part of my estate, both real and personal, and I, the above named Arromanus Lyles, senior, do hereby renounce and bar myself, and my heirs, of any claim, right, or title, I may acquire to the estate of the said 'Susanna, be the same real or personal, by intermarrying with her, the same Susanna; reserving to myself, and my intended wife, Susanna, during my life, a joint support out of the two estates, and at the death of either myself, or Susanna, above named, the interest hereby ^intended to be secured in rx^oo each other’s estates, to be severed, and the estate of the deceased to be L J freely possessed and enjoyed by the heirs of the said deceased, without the interference or control of the survivor.
    “ Witness my hand and seal, the 6th February, 1817.
    “Arromanus Lyles, [l. s.]”
    In the Circuit Court, ample proof was offered, that the paper was genuine. It was proved to have been found in the hands of Ephraim Lyles, the testator’s eldest son, after his decease. The testator was sixty-five or seventy years old, at the date of the paper, and died in six or eight months after its execution; a few weeks before his death, he went to the store of his nephew,-Lyles, and used the following expressions, indicative of his intention, that his property should go, after Ms death, in the manner specified in the above-mentioned paper: “ The hogsheads all to go to Mrs. Lyles’ plantation, and I wish you to be particular in charging them, because I have nothing to do with her property, except to manage it. 1 and your aunt (meaning Ms first wife,) have made something, and 1 mean, when I am gone, that my property shall he divided among my children." It was admitted, that when he executed the paper, he meant it to operate as a deed, not as a will.
    
    The jury, under the direction of the Court, found that the paper was not the last wiil and testament of Arromanus Lyles, deceased.
    The appellant moved to have the decision of the Ordinary reversed, and the said paper established and declared to be the last will and testament of Arro-manus Lyles, deceased, or for a new trial, on the grounds following:
    1. Because the finding of the jury, that the paper propounded, was not the last will and testament of A. Lyles, deceased, was contrary to law and evidence.
    2. Because the testator’s signature to the paper was fully proved, and. it was not necessary that the appellants should show, that the deceased in--xkqqi tended that *the said paper should operate as his last will and testament.
    3. Because the paper produced was the last will and testament of the deceased.
    4. Because the judge erred in charging the jury, that if the testator intended that the paper should operate as a deed at the time of its execution, it was incumbent upon the appellants to show, that he afterwards changed his intention, and meant it to operate as a will.
   The opinion of the Court was delivered by

RichaRDSON, J.

The Court charged the jury, that there is no particular form required for a will; that whether the paper in question could be considered as the last will of A. Lyles, or not, depended upon his intention. 1 Mod. 117. 2 Ves. sen. 441, 226. Swin. 14. 4 Equity, 611. Phillimore, 1, 9, 10, 11. Cow. 600. 1 Bac. 299, 300. That the intention should appear either from the instrument itself, or from extrinsic testimony, and that it was not indispensable, that the testator should have originally executed it as and for a will, provided he had afterwards adopted it as his will. But as the intrinsic appearance of the instrument by no means proved it to be a will, and it being admitted that the supposed testator had not originally executed it as his will, it would be dangerous to support it as his will, unless it plainly appeared that he had subsequently adopted for a will the same instrument before intended for a different purpose. The jury were further instructed, that they were to decide whether the intention or quo animo, necessary to the character of a will ever existed in the supposed testator, either at the time of execution, or subsequently, and they should be governed by their own opinion of each species of testimony, intrinsic or extrinsic, notwithstanding any impressions of the Court.

It may be observed, that no question being made upon the import or *6341 co^truction of any given clause; *but solely upon the general J character of the instrument, which depended upon the intention. The judge left the conclusion to be drawn, entirely to the jury, assisted by his opinion, plainly expressed upon the general character as apparent upon the face of the instrument.

The jury having decided that it did not constitute the will of A. Lyles, and the Court being satisfied that the verdict was supported by the testimony, the only question remaining, is, whether the judge erred in law ? The position of the judge, that the character originally attached to the instrument, must remain, unless another had been given to it by the maker, is too plain for controversy. Then, as A. Lyles did not intend the instrument in question, originally for his will, and as but very feeble evidence was adduced, if any, that he changed that intention, the conclusion, that the instrument constituted at no time his will, appears to me irresistible.

W. F. De Saussure, for the motion. Gregg, contra.

The motion is, therefore, dismissed.

Colcock, Nott, Gantt and Johnson, JJ., concurred.

See 9 Rich. Eq. 111, and cases cited there; Jaggers and Estis, 2 Strob. Eg.. 303. 
      
       11 Rich. 130.
     